STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S OFFICE,

Petitioner,

vs.

KYLE ALSTON,

Respondent.

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) Case No. 12-2472

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RECOMMENDED ORDER

On January 22, 2013, an administrative hearing in this case was held by video teleconference in St. Petersburg and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Grant Rozelle, Esquire

Pinellas County Sheriff's Office 10750 Ulmerton Road

Largo, Florida 33778

For Respondent: Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638 Tampa, Florida 33675

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities

as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.

PRELIMINARY STATEMENT

Based on the results of an internal investigation, the Pinellas County Sheriff's Office (Petitioner) terminated the employment of Kyle Alston (Respondent) as a deputy sheriff. The Respondent disputed the termination and requested an administrative hearing. Pursuant to a contractual agreement between the Petitioner and the Division of Administrative Hearings (DOAH), the Petitioner forwarded the request to DOAH, which scheduled and conducted the hearing.

At the hearing, each party presented the testimony of one witness. Joint Exhibits 1 through 11 were admitted into evidence.

A Transcript of the hearing was filed on February 19, 2013.

On March 1, 2013, the Petitioner filed a Proposed Recommended Order. On March 4, 2013, the Respondent filed a Proposed Recommended Order. On that same date, the Respondent also filed a Motion to File Proposed Recommended Order Out of Time, referencing a March 1, 2013, motion seeking additional time to file the proposed order. That motion was apparently filed after 5:00 p.m. on March 1, 2013, and was docketed by DOAH at 8:00 a.m. on March 4, 2013. See Fla. Admin. Code R. 28-106.104(3).

On March 4, 2013, the Petitioner filed a memorandum in opposition to the Respondent's motion for extension of time.

The Respondent's motions are granted. Both proposed recommended orders were considered in the preparation of this Recommended Order.

Prior to the hearing, the parties submitted a Joint Pre- hearing Stipulation including a statement of admitted facts that have been adopted and are incorporated herein.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff.

2. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding.

3. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen.

4. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun.

5. The officers had no search warrant authorizing their entry onto the private property.

   
   

6. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony.

7. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command.

8. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly.

9. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question.

10. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command.

11. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer.

12. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized

    
    

    to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act.

13. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression.

14. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations.

15. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out.

16. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation.

17. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines.

18. The Respondent has accumulated 75 disciplinary points,

    
    

    60 of which are based on the trespass incident underlying this

    
    

    proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case.

19. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion.

20. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted.

21. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.

    CONCLUSIONS OF LAW

    
    

22. For purposes of conducting a hearing and issuing this Recommended Order, jurisdiction over the parties to and subject matter of this proceeding has been conferred on DOAH pursuant to a contractual agreement between DOAH and the Petitioner.

23. The Petitioner has the burden of establishing, by a preponderance of evidence, that termination of the Respondent's employment is a reasonable penalty for the violation of the

    
    

    Petitioner's disciplinary standards. Grice v. City of Kissimmee, 697 So. 2d 186 (Fla. 5th DCA 1997); MacNeill v. Pinellas Cnty.

    Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Netz v. Jacksonville

    
    

    Sheriff's Office, 668 So. 2d 235 (Fla. 1st DCA 1996). The Petitioner has met the burden of proof.

24. In this case, the Respondent has admitted committing an armed trespass, a third degree felony pursuant to

    section 810.09(2)(c), Florida Statutes (2009). The Respondent failed to report the trespass to anyone in his chain of command. There is no challenge to the calculation of disciplinary points. The sole issue in the case is whether the Respondent's termination from employment is consistent with Sheriff Gualtieri's disciplinary policies.

25. The Respondent has asserted that he did not believe the officers acted inappropriately when they entered the private backyard and, accordingly, did not report the entry to the chain of command. The assertion is contradicted by the fact that, when he was directly questioned about the incident during a deposition, he actively resisted answering the question and sought legal assistance to support his position. Had the Respondent believed that nothing improper occurred when he committed the armed trespass, there would have been no reason for him to decline to answer the question.

    
    

26. The evidence establishes that the Petitioner's termination of the Respondent's employment was proper and warranted by the facts of the case. The Respondent presented no credible evidence to the contrary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment.

DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2013.

COPIES FURNISHED:

Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road

Largo, Florida 33778

Carole Sanzeri, Esquire

Pinellas County Attorney's Office

315 Court Street, Sixth Floor Clearwater, Florida 33756

Robert F. McKee, Esquire Kelly and McKee

Post Office Box 75638 Tampa, Florida 33675

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 12-002472

Orders for Case No: 12-002472