STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

v. Case No. 13-2999PL

ROBERT S. BARWICK,

Respondent,

/

RECOMMENDED ORDER

This case was heard on February 19-21, 2014, in Tallahassee, Florida before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Stephen G. Webster, Esquire

Law Office of Stephen G. Webster, LLC 610 North Duval Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against female employees of the Wakulla County Sheriff’s Office

so as to create an intimidating, hostile, or offensive work environment, and whether Respondent committed battery on female employees of the Wakulla County Sheriff’s Office, on the dates alleged in the Administrative Complaint and, if so, the nature of the sanctions.

PRELIMINARY STATEMENT

On May 8, 2013, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint, Case No. 34965, against Respondent. The Administrative Complaint alleged that Respondent engaged in sexual harassment against five employees of the Wakulla County Sheriff’s Office (WCSO), and committed battery against two of those five employees as further described herein.1/ The Administrative Complaint was served on Respondent on May 13, 2013.

On May 29, 2013, Respondent executed an Election of Rights by which he disputed the facts alleged in the Administrative Complaint, and requested a formal administrative hearing. The Election of Rights was received by Petitioner on May 31, 2013. On August 14, 2013, Petitioner referred the petition to the Division of Administrative Hearings.

The final hearing was scheduled for October 2, 2013. On September 25, 2013, an Unopposed Motion for Continuance was filed due to Respondent’s involvement in a federal trial. The Motion

was granted, and the final hearing was rescheduled for December 5, 2013.

On November 25, 2013, a second Unopposed Motion for Continuance was filed due to witness conflicts with the scheduled date, and due to the parties’ belief that the hearing would take three days rather than the one day scheduled. The Motion was granted and, by separate Order, the final hearing was rescheduled for February 19-21, 2014. On February 17, 2014, this proceeding was transferred to the undersigned for further disposition.

The hearing was held on February 19-21, 2014, as scheduled. Petitioner presented the testimony of Lieutenant Daniel Deal, a WCSO internal affairs investigator; WCSO Lieutenant Julie Martin; WCSO Detention Deputy Lindsay Jacques; WCSO Detention Deputy Lisa Hummell Crum; WCSO Dispatcher Charlie Boyatt; WCSO Detention Deputy Vickie Hughes; WCSO Detention Deputy John Metcalf; and WCSO Deputy Michael Zimba. Petitioner’s Exhibits 1 through 12 were received into evidence. Respondent testified on his own behalf and presented the testimony of Steve Ganey, a former WCSO employee and a WCSO Captain during the period of time at issue; WCSO Detention Deputy Billy Metcalf; WCSO Lieutenant Clifford Carroll; WCSO Captain Randall Taylor; WCSO Lieutenant Lindsay Maxwell; Michelle McLaughlin Muse, a WCSO animal control officer prior to leaving the WCSO in 2010; WCSO Major Jared Miller; and

Lisa Spears, a former WCSO Lieutenant.2/ Official recognition was taken of chapter 2008-298, Laws of Florida.

A six-volume Transcript of the proceedings was filed on March 31, 2014. By agreement, proposed recommended orders were to be filed within 20 days of the filing of the transcript. On April 21, 2014, the parties jointly moved for additional time, up to and including May 12, 2014, to file proposed recommended orders. The motion was granted. On May 9, 2014, Respondent filed an unopposed motion for additional time, up to and including May 23, 2014, to file proposed recommended orders. The motion was granted. Thereafter, both parties timely filed Proposed Recommended Orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement and correctional officers in Florida. § 943.12, Fla. Stat. (2013). Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified officers are alleged to have failed to maintain compliance with the minimum qualifications for

   
   

   certification, including those requiring that a certified officer maintain good moral character, and to take disciplinary action against officers found to have failed to maintain those qualifications.

2. On September 9, 2005, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 251492.

3. On November 16, 2010, Respondent was certified as a law enforcement officer, and holds Law Enforcement Certificate Number 294018.

4. Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent.

5. Respondent was credibly described as a stickler for rules. He was a strict supervisor and harsh with subordinates, but was recognized as knowing policy and getting things done.

6. By all credible accounts, the Wakulla County jail was, during the period in question, a place at which flirtation, cutting up, joking around, playing pranks, and horseplay between employees of the WCSO was routine. Deputy Metcalf testified that the flirtatious behavior included male and female officers hugging and rubbing one another’s shoulders. The rough and crude humor, language, and practical jokes were a means by which the employees in a stressful occupation could burn off steam.

   
   

7. The evidence suggests that Respondent was an active participant in the horseplay and, though his workplace behavior was not entirely out of place in the social context of the Wakulla County jail, he would occasionally take it to extremes, particularly in his interactions with female subordinates. He was known to place female officers in an “arm-bar” (also called an “arm-lock”), an incapacitating maneuver by which the person’s arm is twisted and brought behind their body. He would also poke the female officers in the ribs with a force that could cause a bruise, or pull their hair.3/ All in all, the evidence suggests that Respondent occasionally acted without the degree of restraint and decorum that one would expect of a supervisory officer of the WCSO. However, except as otherwise specified herein, there is little to suggest that the acts were sexually motivated.

   The Jail Security System

   
   

8. Prior to 2011, the system of security cameras at the Wakulla County jail was inadequate and in disrepair. There were numerous locations in the jail facility that were out of camera range, and some of the cameras that were in place were inoperable. The old system did not record audio.

9. In 2011, the security system was substantially upgraded.

   
   

   The new system covers most of the “holes” left by the old system, and records audio. The system is motion-activated, so that

   
   

   anytime motion is detected in a coverage area, the cameras and audio activate and record any activity.

10. All activity recorded by the security system is stored on a hard-drive, and can be reviewed by authorized officials of the WCSO. As the hard-drive is filled, it records over the oldest data on a continuous loop. Once data is recorded over, it cannot be recovered. The evidence was vague as to the length of time that data can be recovered from a particular camera, and the length varies depending on the rate of activity in an area covered by a particular camera. The most persuasive evidence indicated that recorded activities can be reviewed for a period of at least 30 days in an area of heavy activity.

11. Since the control room is manned at all times, and is generally a hub of activity with officers coming and going at all times, the video and audio recordings for that area are generally continuous. Thus, activities occurring in the control room are recorded and available for review for at least 30 days.

12. Although there are a few nooks and corners in which one may be out-of-sight of the cameras, they are few in number. In addition, several areas are not under video monitoring, including the quartermaster’s office.

13. The control room contains monitors that display the video feeds from each of the security cameras at the jail. Live video is continuous, although it is recorded only when movement

    
    

    was detected. Although audio operates under the same parameters as video, it can be turned on or off in the control room live feed.

14. In addition to the monitors in the control room, the offices of higher-ranking officers, including those of Captain Taylor and Major Miller, have monitors on which the security camera feeds may be viewed at the officer’s discretion. The officers occasionally use the security cameras to monitor the jail staff to ensure they are not loafing.

15. The WCSO officers and employees are well aware that actions taking place in the jail are under surveillance. They know where the cameras are located, and understand the capability of the system to observe and record their actions. The evidence was persuasive that the general time limit on the availability of recordings was also known by jail personnel, particularly those in supervisory positions.

16. The security camera system is frequently used to resolve complaints regarding prisoners and staff. If a prisoner has made a complaint against a WCSO staff person, it is a simple matter to go to the date and time of the incident, and review the tape. If an incident is detected, a permanent DVD copy can be made to preserve the evidence. The system is also used if cell inspections reveal unauthorized materials in the possession of the prisoners. The security camera recordings have been used to

    
    

    detect who on the WCSO staff were providing “contraband,” including extra food and blankets, to the prisoners.

17. The ability to use the security camera system for one of its primary purposes is dependent upon complaints being made within a reasonable time from the occurrence of the event, so as to allow for the security camera recordings to be accessed before being recorded over.

18. In the event of any sort of complaint, the first responsibility of a supervisor is to “lock in” the date and time of the incident and review the security camera recordings. Training at the Academy

19. From February 2010 through November 2010, Respondent attended the Field Training Officer’s Program at the Pat Thomas Law Enforcement Academy (Academy). Other attendees included then-Sgt. Lindsay Maxwell, then-Sgt. Julie Martin, Ashley Alexander, Lisa Hummell, Gibby Gibson, Michael Zimba, Jason Barksdale, and John David Metcalf.

20. Transportation to and from the Academy was provided by the WCSO using one of two vans.

21. Deputy Gibson was the normal driver for the trips between the Wakulla County jail and the Academy. He was generally regarded as a fast driver, being heavy on the gas and the brakes, and known for cornering at high speed. As a result, it was easy to get thrown around if not seated and buckled in.

    
    

22. Attendance at the Academy was generally necessary for accreditation and career advancement as a law-enforcement officer. However, several of the officers selected to attend the Academy believed attendance to be mandatory, and were dissatisfied with the fact that they were not being paid for the hours spent in travel and attendance. They were vocal in their dissatisfaction.

23. Several of the attendees believed Respondent to be a “snitch” or a “tattletale,” relating their conversations in the van to higher-ranking officers. Deputy Hummell blamed Respondent for word of their dissatisfaction with not being paid for attendance, among other conversations, making its way to Captain Taylor.

24. As a result of the general air of dissatisfaction expressed by attendees, Captain Taylor gave them the option to quit the training. None did so. In order to confirm the nature of the training, each of the participants was thereafter required to sign a statement agreeing that their attendance was voluntary.

25. Over time, some of the attendees opted to ride in personally-owned vehicles rather than the WCSO van.

26. After the completion of training, then-Sgt. Martin was promoted to the rank of lieutenant, and was thereupon assigned to supervise one of the jail shifts.

    
    

    Overlapping Shifts

    
    

27. The Wakulla County jail, being a facility that is in use 24 hours per day, is manned in shifts. Officers are assigned to a shift, and get to know those persons sharing that shift. Starting in early 2011, and continuing until March 2012, Lieutenant Martin and Respondent supervised separate shifts.

28. Lieutenant Martin generally assigned deputies to a duty station and allowed them to routinely work that station. There was no evidence that deputies in Lieutenant Martin’s shift were moved around to other stations. Deputy Jacques was in Lieutenant Martin’s shift, as were Deputy Hummell and Deputy Metcalf, among others.

29. Respondent had a practice of assigning deputies in his shift to different duty stations for the purpose of making sure that each deputy was familiar with each duty station. The deputies in Respondent’s shift were used to the protocol.

30. In March, 2012, Respondent suggested that he and Lieutenant Martin overlap their shifts, so that each of the command officers could get to know the deputies on the other’s shift. Lieutenant Martin agreed that was a good idea and the shift overlap was implemented.

31. When the shift overlap was implemented, Respondent began to assign deputies in Lieutenant Martin’s shift to different duty stations when they were under his supervision.

    
    

    Respondent would ask deputies to identify which area they believed to be the worst to work, and would then assign them to that area. The reassignments, though logical, were unpopular with the officers in Lieutenant Martin’s shift, who were not used to Respondent’s style of supervision.

32. After the overlapping shifts were implemented, Deputy Jacques was occasionally assigned to the Station 1 control room, away from her normal duty station in the control room for the “B side” of the jail, which housed female inmates and local inmates. Respondent’s reassignment of Deputy Jacques was consistent with his practice of rotating shifts to familiarize deputies with all duty stations.

    The Precipitating Incident and Report

    
    

33. On April 6, 2012, Deputy Middlebrooks, an acting shift supervisor, had called in sick. Respondent was called in to supervise the 5:00 a.m. shift. He assigned Deputy Jacques to Station 1. Deputy Metcalf, who was normally assigned to Station 1, was assigned to visitation.

34. During the course of the morning, Respondent moved from his seat at the “lieutenant’s desk” in the control room to sit next to Deputy Jacques at the control panel. While there, Respondent was seated close to Deputy Jacques, and was observed by Deputy Metcalf to be touching her shoulders and hair. Deputy Jacques testified that Respondent was seated too close to her for

    
    

    comfort, and would touch her leg, pull on her hair, and poke her in the side. Deputy Jacques asked him to stop without success.

35. Later in the day on April 6, 2012, Deputy Metcalf was told by Deputy Jacques that Respondent’s sitting so close made her feel uncomfortable. Deputy Metcalf related that conversation to Lieutenant Martin.

36. Lieutenant Martin approached Deputy Jacques on April 7, 2012 and asked her about the incident. Deputy Jacques denied that Respondent had acted inappropriately towards her, stating that “we’re fine, we’re good,” and that if Lieutenant Martin had any questions she “could go review the cameras.”

37. Lieutenant Martin reported the allegation to Captain Taylor. Lieutenant Martin testified that she merely related the incidents as reported to her, and that she never said “sexual harassment.” Lieutenant Martin further testified that Captain Taylor advised that “it's not considered sexual harassment until she tells him to stop several times.”

38. Captain Taylor testified that Lieutenant Martin came to his office and advised him that Deputy Metcalf saw Respondent sitting very close to Deputy Jacques in the control room, and that Deputy Jacques subsequently advised Deputy Metcalf that it made her feel uncomfortable. Lieutenant Martin further advised Captain Taylor that Deputy Jacques did not want to file a complaint. Captain Taylor denied Lieutenant Martin’s assertion

    
    

    that he dismissed her report because sexual advances must be rebuffed several times before it becomes sexual harassment. His testimony is credited.

39. There being no complaint, and nothing related by Lieutenant Martin that would necessitate a review of the security cameras, a review was not made.

40. At some point, though the date was not specified, Deputy Johnson advised Lieutenant Martin that Respondent had fondled Deputy Jacques in the jail’s medical unit. There is not a shred of evidence, from Deputy Jacques or otherwise, to support that allegation. Deputy Johnson also told Lieutenant Martin that Respondent offered to drop an incident involving the provision of extra bed linens to inmates in exchange for a kiss. Despite the seriousness of the unsubstantiated account of fondling, Lieutenant Martin did not approach Deputy Jacques to ascertain its validity, nor did she attempt to review any tapes to substantiate the allegation.4/ Lieutenant Martin did not report the new information of either incident to any higher authority.

41. “A while later,” Lieutenant Martin spoke with Karen Ward, who indicated that Deputy Jacques was considering leaving the WCSO due to Respondent’s behavior. As a result of that conversation, Lieutenant Martin again spoke with Deputy Jacques. During that conversation, Deputy Jacques was told by Lieutenant Martin “that I was not alone, that it happened to her, too, and

    
    

    there's others . . . . I felt like if she's going to say something, I'm going to say something, too.”5/ Deputy Jacques thereafter advised Lieutenant Martin of the incidents that appear in the written complaint in this case, including the allegation that on April 6, 2012, Respondent placed Deputy Jacques in a headlock and attempted to drag her into the control room bathroom.

42. Despite her professed concern for Deputy Jacques, and despite her knowledge that “you can't go back more than a month or month-and-a-half” to review security camera recordings, Lieutenant Martin still did not file a complaint, and made no effort to review the security system recordings of the alleged incident. Rather, Lieutenant Martin went on a two-week vacation commencing on or about May 1, 2012.

43. Lieutenant Martin returned from her two-week vacation on May 18, 2012, and returned to work on May 19, 2012. She then went to Major Miller regarding Deputy Jacques’ allegations. Major Miller advised her to file a complaint, which Lieutenant Martin finally did on May 23, 2012.

    The Investigation

    
    

44. After Lieutenant Martin filed her complaint with Major Miller, it was assigned to then-Captain Carroll to initiate a supervisor’s inquiry. The evidence establishes that Captain Carroll coordinated the early stages of the investigation with

    
    

    Lieutenant Martin. Lieutenant Martin approached witnesses to instruct them that they were wanted in Captain Carroll’s office. On more than one occasion, the nature of the inquiry was divulged by Lieutenant Martin, though there is no evidence of any lengthy conversation.

45. During Captain Carroll’s interview of Deputy Jacques, she related the March 14, 2012, offer to drop the contraband blanket issue in exchange for a kiss, and the April 6, 2012, incident in the control room. At the conclusion of her interview, Captain Carroll advised Deputy Jacques that “probably when you get your notes, there's going to be a lot more that you remember.” Deputy Jacques’ notes reflect no other incidents. There is no evidence to suggest that Deputy Jacques discussed or disclosed the incidents of touching, poking, and grabbing that formed the basis for much of her testimony in this case.

46. At the conclusion of the supervisor’s inquiry, the matter was reviewed by Major Miller and the undersheriff. They authorized a further investigation of the complaint.

47. On June 11, 2012, the investigation was assigned to Lieutenant Deal, a WCSO Internal Affairs investigator. At the time, the allegations involving Deputy Jacques consisted only of the two incidents as related to Captain Carroll.

48. During the course of the investigation, Lieutenant Deal was provided with a series of text messages exchanged between

    
    

    Deputy Jacques and Karen Ward. Although the text messages, which were sent within days of the alleged incident, contained statements that could be construed as exculpatory, there was no effort made to inquire of Deputy Jacques as to the context or circumstances of the text messages.

49. Lieutenant Deal questioned the witnesses who appeared at the supervisor’s inquiry, two additional witnesses, Respondent, and three witnesses identified by Respondent pertaining to an allegation as to the motive of Major Miller in encouraging the complaint.

50. As a result of his interviews, Lieutenant Deal ultimately expanded the investigation to include allegations of improper conduct made by Lieutenant Martin, Deputy Hummell, Deputy Hughes, and Ms. Boyatt.

51. As a result of his investigation, Lieutenant Deal concluded that there were “sustained charges.” However, in keeping with the absolute lack of specificity of the facts upon which the allegations in this case were based, Lieutenant Deal was unable to identify what the “sustained charges” may have been, other than they were “[c]onduct, policy charges. I don't have the file exactly before me right now to tell you what they were, but they were conduct charges, harassment, and I think threatening and bullying others were the two charges.”

    
    

    Surprisingly, Lieutenant Deal’s investigative report was not made a part of the record.6/

    The Effect of Delay on the Availability of Evidence

    
    

52. Security camera recordings are routinely made part of investigations of activities occurring at the jail. Lieutenant Deal testified that, except for the instant case, he has “always been able to get video if I initiated the cases or they were in my hands within a couple of days.” In this case, by the time the complaint was assigned to Captain Carroll, the tapes of the incident had been recorded over.

53. When Lieutenant Martin approached Deputy Jacques on April 7, 2012 to inquire about the incident, Deputy Jacques rightly suggested to Lieutenant Martin that “[i]f you really want to see what happened to me, review the cameras.” The video and audio recording would have been easily and readily available, and would have constituted the best and most accurate account of the incident.

54. Despite Deputy Jacques’ suggestion that she look at the cameras, Lieutenant Martin declined to “lock in” the date and time of the incident and review the security camera recordings. She reported to Captain Taylor only that Deputy Metcalf thought Respondent was sitting too close to Deputy Jacques, that Deputy Jacques denied the incident, and that Deputy Jacques would not file a complaint.

    
    

55. On or about April 11, 2012, Deputy Jacques, in an effort to discourage Respondent’s attentions, advised Respondent that she had received a call from “higher-ups” inquiring whether Respondent had acted inappropriately, though in reality she had not. In response, Respondent requested that Captain Taylor conduct an investigation to clear his name, which would have, almost of necessity, involved reviewing the security camera recordings. For reasons that were unexplained, the request was not acted upon, and the security camera recordings were not reviewed or preserved.

56. Even when Lieutenant Martin obtained the additional information that ultimately formed the basis for the complaint, including the serious and inflammatory allegation that Respondent placed Deputy Jacques in a headlock and attempted to drag her into the bathroom, she did not promptly file a complaint or advise anyone of the allegations so that the tapes could be preserved.7/ Rather, despite her professed concern for Deputy Jacques’ safety, she went on a two-week vacation to St. Georges Island. The preponderance of the evidence suggests that when Lieutenant Martin left for her vacation, tapes of the incident involving Deputy Jacques would not yet have been recorded over.

57. Lieutenant Martin waited until May 23, 2012 to file the complaint, well beyond the time that recordings of the incident would have been recorded over. There was no rational explanation

    
    

    offered as to why Lieutenant Martin waited to file the complaint, particularly since some of the allegations in this case involve Respondent’s alleged acts towards Lieutenant Martin, acts that allegedly occurred over many years, and since Lieutenant Martin purportedly knew of others who were subject to Respondent’s advances.

58. It is of significant concern to the undersigned that the report of the incident was made only after the time for which a video record would be available had elapsed. The incident that precipitated the investigation occurred on April 6, 2012. There were no witnesses other than Deputy Jacques and Respondent, thus leading to a “he said, she said” scenario upon which Respondent’s professional license rests. However, the unblinking eye of the security system was available for its intended use of resolving complaints and disputes had it been promptly reviewed. Paragraph 2.(a) - Julie Martin

59. In paragraph 2.(a) of the Administrative Complaint, Petitioner alleged that:

    On or between January 1, 2006 and June 7, 2011, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim.

    
    

60. Lieutenant Martin began her employment with the WCSO on September 14, 1999 as a dispatcher. In 2004, she was transferred to corrections for about one year, after which she was assigned to the booking room, a position she held until 2010. In 2010, she was transferred to Respondent’s shift at the jail. In February of 2010, Lieutenant Martin, who then held the rank of sergeant, was selected to attend the Academy. At the conclusion of training, she was promoted to the rank of lieutenant, the rank she has held since.

61. At one time, Lieutenant Martin and Respondent were friends, socializing and dining with one another at their respective houses.

    Hands Down the Pants

    
    

62. The most serious “allegation” (see Endnote 1) involving Lieutenant Martin was an incident that allegedly took place in the van in which Respondent “stuck his hands down my pants -- his fingers down my pants.” Lieutenant Martin testified that she was sitting next to Deputy Hummell, and Respondent and Deputy Metcalf were sitting in the back seat. She testified that Respondent stuck his hand between her shirt and her pants, and that the act was witnessed by Deputy Hummell.

63. Deputy Hummell’s description of the incident was generally consistent with that of Lieutenant Martin. She testified that Lieutenant Martin and she were seated together on

    
    

    one of the bench-style seats. Lieutenant Martin was “leaned up,” talking to Deputy Alexander. Deputy Hummell testified that she turned to say something to Lieutenant Martin when she observed Respondent grab Lieutenant Martin by her belt and the top of her pants and pull her back. Deputy Hummell indicated that Lieutenant Martin “turned around and swatted at [Respondent] and told him to stop it.”

64. Deputy Metcalf recalled the incident slightly differently, testifying that he was seated by himself in the back row of seats, and Respondent was seated next to Lieutenant Martin in a middle row. Lieutenant Martin was leaned forward in her seat talking to Ms. Hummel, who was seated in the next row forward. Deputy Metcalf admitted that leaning up over the seat in front could be dangerous if the driver, Deputy Gibson, was to slam on the brakes. They were all talking, when Deputy Metcalf observed Respondent stick his hand, palm facing out, inside the back of Lieutenant Martin’s pants.

65. Respondent did not deny grabbing Lieutenant Martin by the top of her pants. He testified that Lieutenant Martin was leaned forward in her seat to see what the people in front were doing. Respondent testified credibly that he “reached up and grabbed her belt loop and told her to sit down before I have to do an incident report on why somebody got hurt and wasn't wearing a seat belt.” Respondent’s general description of the incident,

    
    

    though not the motive, is consistent with that of Lieutenant Martin and Deputy Hummell.

66. Respondent’s account of the incident and his motive for grabbing Lieutenant Martin’s pants finds substantiation in Lieutenant Martin’s explanation of the reason that she stopped riding in the van, which was that “I had to work with him all day long and then I had to go to school with him, and I didn't want him to grab my pants and pull me back in my seat and tell me that, you know, it's a security risk that I'm sitting too far up in my seat, that I needed to be seated back. And I didn't want to have to deal with that every day.” That explanation corresponds perfectly with both the act and the intent described by Respondent. The evidence in this case, taken as a whole, demonstrates that the incident at issue was motivated by issues of safety and as a forceful means of getting Lieutenant Martin to stay seated in the van. The suggestion that it was for more salacious purposes is rejected.

67. Lieutenant Martin also testified to a second incident in which she was leaning forward in her seat talking to another passenger. Respondent put his finger in her belt loop, pulled her back, and said that she needed to sit back in her seat. No other witness testified as to that incident. The incident as described, which is not itself sexual in nature and which was unaccompanied by sexual comments or innuendo, appeared, again, to

    
    

    be related to safety and Respondent’s desire to avoid the work of having to write an incident report.

    Other Alleged Incidents

    
    

68. The remainder of Lieutenant Martin’s testimony regarding Respondent’s interactions with her consisted of a litany of incidents that occurred sporadically over the years.

69. Lieutenant Martin testified that, in 2006 when she worked in booking, Respondent occasionally placed her in an arm bar,8/ that he would, on occasion, grab and pull her hair, and that one time Respondent poked Lieutenant Martin hard in the ribs and said “I bet Tommy [Lieutenant Martin’s husband] will like this bruise.” The incidents included no sexually suggestive comments or innuendo.

70. Lieutenant Martin testified that on one occasion in 2010, while riding in the van to the Academy, she was lying down on the bench seat. Respondent reached over the seat and poked her in the stomach wanting her to wake up and “saying that I was not tired, I did not need to be sleeping on the van.” The evidence is not clear and convincing that the act of poking Lieutenant Martin in the stomach as described, which is not itself sexual in nature, and which was unaccompanied by sexual comments or innuendo, constituted sexual harassment. Furthermore, Lieutenant Martin testified that she never revealed that allegation until she was seated in the witness box

    
    

    testifying at the hearing. Therefore, that allegation could not have formed the basis for any allegation in the Administrative Complaint.

71. At some time while she was under Respondent’s supervision, Lieutenant Martin was stationed in the control room. Respondent came in and sat next to her. Lieutenant Martin testified that Respondent pulled her chair around to face him and grabbed the top of her legs above the knee and squeezed. Lieutenant Martin did not report that incident to Captain Carroll during the course of his investigation. She further testified to another incident when Respondent came up behind her and grabbed her ponytail. Though Lieutenant Martin’s allegations were not specific as to time, it can be reasonably inferred that the incidents occurred at some time during the five-and-a-half year period alleged. However, there is no evidence that either incident formed the basis for any specific allegation in the Administrative Complaint.

72. The incidents described included no corroboration, were not specific as to time, and none resulted in any contemporaneous report of the conduct to a responsible authority. The incidents described by Lieutenant Martin formed no basis for the May 23, 2012, complaint filed on behalf of Deputy Jacques.

73. Many of the incidents described by Lieutenant Martin are consistent with the descriptions of the general level of

    
    

    workplace behavior that existed in the social atmosphere of the Wakulla County jail, and were not grossly out of line from the air of rude and crude horseplay and flirtatiousness that existed at the jail. The incidents described, if true, suggest that Respondent’s behavior was, at times, childish and unprofessional. However, this proceeding is not based on allegations that Respondent may have acted like a jerk,9/ but is based on allegations that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position. The incidents described, occurring over a period of years, did not involve unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. The evidence was insufficient to demonstrate that the incidents were severe or pervasive enough to create an objectively hostile or abusive work environment, or were so objectively offensive as to alter the conditions of Lieutenant Martin’s employment.

74. As to paragraph 2.(a) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2006 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin.

    
    

    Paragraph 2.(b) - Lindsay Jacques

    
    

75. In paragraph 2.(b) of the Administrative Complaint, Petitioner alleged that:

    On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim.

    
    

76. Deputy Jacques was first employed by the WCSO in 2006, when she was assigned to records, a position she held for approximately one year. She was then assigned to road patrol for a year and a half, and then to criminal investigations for approximately two years. Deputy Jacques was assigned to corrections in March 2010.

77. The evidence suggests that, at one time, Deputy Jacques and Respondent were friends. When Deputy Jacques was on road patrol, she would occasionally ask Respondent to meet her outside when she was in the vicinity of the jail, where they would talk. Their conversations over time included, in addition to more mundane topics, matters of a personal nature.

78. Deputy Jacques’ supervisor during the period in question was Lieutenant Martin, except when she was supervised by Respondent during the periods when shifts were being overlapped.

    
    

79. Deputy Jacques’ primary duty station was Station 4, the control room for the “B side” of the jail, which housed female inmates and local inmates.

80. Deputy Jacques understood that flirting at the jail was commonplace, and she participated along with other deputies. It was not unusual for deputies and employees to engage in banter in the nature of “hey, you look pretty today,” and “you're looking hot today.” Deputy Jacques did not consider that level of flirtatiousness to be of a sexual manner or inappropriate.

81. Station 4 was in proximity to the quartermaster’s office, to which Respondent was assigned at some point after January 2011. Deputy Jacques testified that on a typical day, she would walk by the door to the quartermaster’s office more than 20 times.

82. Respondent frequently called Deputy Jacques into the quartermaster’s office. Most of the times were for innocuous reasons, e.g., to look at emails he had received, or to show her pictures of his children or his dogs.

83. Deputy Jacques testified that on some of the occasions she was summoned into the quartermaster’s office, Respondent would grab her knee, pull her hair, or place her in an arm bar. Deputy Jacques was sufficiently uncomfortable with Respondent’s conduct towards her that she instructed Deputy Metcalf to call

    
    

    her or come get her after 10 or 20 seconds if he saw her enter the quartermaster’s office.

84. On or about March 14, 2012, Respondent called Deputy Jacques into the quartermaster’s office to advise her that she had been observed providing female inmates with extra blankets, which were considered to be contraband, but that if she gave him a kiss everything would go away. Deputy Jacques’ contemporaneous notes of the incident indicate that her response was “fuck you, write me up then.” There were no witnesses to the alleged incident, and the incident was not reported. The fact that Deputy Jacques could respond to a superior officer in that manner without retribution, and the fact Deputy Jacques was not disciplined for providing inmates with extra blankets despite the refusal of Respondent’s “offer,” suggests that the incident was one in keeping with the general flirtatiousness that was commonplace at the jail.

85. On April 6, 2012, while filling in as Supervisor, Respondent assigned Deputy Jacques to Station 1, and Deputy Metcalf to visitation. The reassignments were consistent with Respondent’s practice of rotating shifts to familiarize employees with all duty stations.

86. There were routinely two chairs positioned in the control room in front of the control board. It was not unusual for two people to be seated there, because “[i]t’s nice to have

    
    

    some help sometimes.” The evidence is persuasive that the control room, being a hub of activity at the jail and with people constantly coming in and out, usually had four to six chairs or more scattered about for officers to sit in.

87. On the morning of April 6, 2012, Respondent came to sit next to Deputy Jacques at the control panel. While there, Deputy Jacques testified that Respondent was touching her leg and shoulders, pulling her hair, and poking her in the side. Respondent’s actions made Deputy Jacques feel very uncomfortable, and she asked him to stop without success.

88. At some point during the day, as Deputy Jacques was standing near the Station 1 coffee machine, Respondent approached and placed her in an arm-bar while asking “does it hurt? Does it hurt?” Other than his hand, no other part of Respondent’s body was touching Deputy Jacques. Deputy Jacques asked Respondent to leave her alone. In response, Respondent placed her in a headlock from the side. Other than Deputy Jacques and Respondent, there was no live witness to the incident.

89. Deputy Jacques testified that Respondent performed the headlock in an effort to pull her into the bathroom. She inferred that the move was for sexual purposes, an assertion vigorously denied by Respondent. The undersigned finds that, given the known presence of video and audio surveillance in the control room, and the frequency with which jail personnel came in

    
    

    and out of the control room, it is implausible to the point of disbelief that Respondent was attempting to drag Deputy Jacques into the bathroom in order to sexually force himself on her.

    Rather, as with many of the other incidents described herein, the pervasive sense was that Respondent was taking the roughhousing and horseplay that normally occurred at the jail to a degree that was more related to boorish and/or bullying behavior than to sexual behavior.

90. On April 7, 2012, Lieutenant Martin was advised by Deputy Metcalf that he had observed Respondent sitting too closely to Deputy Jacques at the control panel, a situation that seemed inappropriate. Lieutenant Martin called Deputy Jacques to inquire about the incident, and later went to see Deputy Jacques for the same purpose. Deputy Jacques denied that anything untoward happened, but invited Lieutenant Martin “to look at the cameras” if she wanted to see what happened.

91. On April 9, 2012, Lieutenant Martin related her discussion with Deputy Jacques to Captain Taylor. There is no evidence that Lieutenant Martin advised Captain Taylor of anything other than the allegation that Respondent was sitting too close to Deputy Jacques. She advised Captain Taylor that Deputy Jacques indicated that everything was “cool,” and did not want to file a complaint. There is no suggestion that any conduct involving arm-bars or the headlock was related to Captain

    
    

    Taylor. Lieutenant Martin did not suggest that the security tapes should be reviewed, and they were not.

92. On April 11, 2012, Respondent approached Deputy Jacques in “A side Medical” to talk. There, in an effort to discourage Respondent’s childish and tiresome behavior, Deputy Jacques told Respondent that “higher-ups” had called her to inquire about Respondent’s harassment. Her statement, which was not true, had the desired effect, as Respondent engaged in no conduct felt by Deputy Jacques to be inappropriate after April 11, 2012.

93. Between April 12, 2012 and April 17, 2012, Deputy Jacques engaged in a series of text messages with Karen Ward.

94. On April 12, 2012, Deputy Jacques stated that “I could handle it..he [Respondent] never cross the line..u [sic.] know like vulgar or anything like that but it was extremely uncomfortable.” She further stated that “[b]ut look if station is being recorded they can c [sic.]...how he was acting and see that the shift was not exag[g]erating.” Deputy Jacques testified that she made the exculpatory comments because Ms. Ward “has a big mouth,” and she didn’t want her telling things to Lieutenant Martin. Believing she had put an end to Respondent’s behavior, Deputy Jacques just wanted the incident to go away.

95. On April 17, 2012, Deputy Jacques texted Ms. Ward and stated that “I know how to kid around..we all flirt at the

    
    

    office..but when it's inappropriate, I say something n [sic.] I try to stop it.”

96. At some point prior to the filing of the complaint, Lieutenant Martin approached Deputy Jacques to advise her that there were other officers to whom Respondent had acted inappropriately. As a result of that conversation, Deputy Jacques determined that she was not the only person who was the subject of Respondent’s inappropriate conduct. As a result, Deputy Jacques was emboldened, deciding that “I felt like if she's going to say something, I'm going to say something, too.”

97. The evidence in this case is compelling that Respondent’s conduct towards Deputy Jacques was childish, boorish, and oft-times overly physical. The evidence is equally compelling that Deputy Jacques was justifiably sick of Respondent’s behavior. However, as will be discussed in greater detail herein, in order to find that Respondent violated professional standards, the evidence, taken as a whole, must produce a firm belief or conviction, without hesitancy, that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position that rose to the level necessary to demonstrate that Respondent was not of good moral character.

98. In this case, there are factors that prevent the establishment of the “firm belief or conviction” that

    
    

    Respondent’s interactions with Deputy Jacques rose beyond boorish and inappropriate behavior to the level of sexual harassment, i.e., sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, necessary to sustain the violations alleged. First are Deputy Jacques’ contemporaneous text messages that indicate Respondent never crossed the line or did anything that she considered to be vulgar. Second, is the social milieu of the Wakulla County jail, in which flirtatious behavior, horseplay, and pranks, often of a physical nature, were the norm, and was behavior engaged in by Deputy Jacques.

99. In addition to the foregoing, Deputy Jacques testified that Respondent made inappropriate comments such as “you look good,” or “I love the way you bend over” on numerous unspecified occasions. She further testified that Respondent once made a sexual comment involving Deputy Jacques’ difficulty with conceiving children. Given the general theme of Respondent’s conduct, the undersigned is convinced that the comments as related by Deputy Jacques were accurate. However, Petitioner failed to elicit testimony as to when those comments were made. Given the burden of proof in this case, as discussed herein, that critical element of the allegations against Respondent -- as pled

    -- cannot be inferred.

    
    

100. As indicated herein, the undersigned accepts that Respondent engaged in conduct that those in civilian life would find unacceptable in the workplace. However, the issue in this case is not whether Respondent acted in a manner unbefitting a supervisory officer of a sheriff’s department, but rather whether Petitioner met its burden of proving that Respondent’s conduct was “sexual harassment,” as defined, by clear and convincing evidence.

101. As to paragraph 2.(b) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques. Paragraph 2.(c) - Lisa Hummell (n/k/a Lisa Hummell Crum)

102. In paragraph 2.(c) of the Administrative Complaint, Petitioner alleged that:

     On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim.

     
     

103. Detention Deputy Hummell was first employed by the WCSO in 2004. She began her career as a dispatcher, and then

     
     

     moved to the purchasing department. In 2006, she attended the Wakulla Correction Institute, and received her certification as a correctional officer. She then served as a detention deputy at the Wakulla County jail.

104. Deputy Hummell was selected to attend the Academy from February 2010 until November, 2010. While attending the Academy, she was assigned as a road patrol deputy.

105. While attending the Academy, Deputy Hummell rode in the van provided by the WCSO. The van was scheduled to leave the Wakulla County jail at 4:30 p.m. so as to allow time for the riders to get something to eat, and make it to the Academy for the start of classes at 6:00 p.m. On a number of occasions, Deputy Hummell was late arriving at the jail after completing road patrol. Respondent, who was the ranking officer in the van, rarely waited for Deputy Hummell, even when she called to let them know she was going to be running only five or ten minutes late.10/ As a result, Deputy Hummell would drive her patrol car to the Academy, and later ended up driving her personal vehicle. Deputy Hummell believed that Respondent did not want her riding in the van, which made her feel as though she was not part of the team.

106. At one time, during a conversation with Deputy Hummell’s trainer and supervisor in the field training program, Captain Ganey, Deputy Hummell complained about Respondent

     
     

     directing the van to leave if she was late. During that conversation, Deputy Hummell stated that "[t]here's that Barwick. He's a snitch. Everything we say on that bus he goes back to Captain Taylor with.”

107. Deputy Hummell felt as though Respondent treated her unfairly, which caused her significant aggravation.

108. Deputy Hummell received her law enforcement certification on November 16, 2010, and returned to duty at the Wakulla County jail. She has been assigned to the Wakulla County jail since that time.

109. At some time after having received her law enforcement certification, and after returning to duty at the jail, Deputy Hummell was assigned to Station 1 with Respondent. During the shift, she left her phone in the control room while attending to business elsewhere in the jail. When she returned, Respondent suggested he had reviewed photographs on her phone. According to Deputy Hummell, the photographs on her telephone included two of her in an unclothed state that she had taken to send to her boyfriend. Respondent insinuated that he had forwarded the photographs to himself. Over the next months, on five or six occasions, if Deputy Hummell had a disagreement with Respondent, or said something “smart-alec” towards him in a group, Respondent would pat his pocket where he kept his phone or say something like “you know what I got.”

     
     

110. Respondent denied having accessed photographs from Deputy Hummell’s telephone. Deputy Hummell never saw the photographs on Respondent’s phone, and there was no physical evidence that Respondent actually saw or obtained the photographs of Deputy Hummell’s breasts. Deputy Hummell could recall no witnesses to any of the events regarding Respondent’s alleged access to her telephone, or to his implied threats to reveal the photographs. Deputy Hummell never complained about the incident to the WCSO human resource officer despite policies in place that “[s]exual harassment, battery-type -- anything in general that you didn't feel was comfortable” was to be documented and reported. Respondent’s alleged access of Deputy Hummell’s telephone involved no inappropriate touching.

111. Based on the record of this proceeding, the evidence is not clear and convincing that the alleged incident occurred as described by Deputy Hummell.

112. On a subsequent occasion, Respondent had access to Deputy Hummell’s telephone. The circumstances are in dispute, and in any event are not material. At the end of the incident, Respondent sent a text message from Deputy Hummell’s telephone to Karen Kemp, a WCSO dispatcher. The substance of the text was to the effect of “hey, I think you're sexy, we need to get together.”

     
     

113. As it turned out, Ms. Kemp had given her old telephone to her 14-year-old son, who received Respondent’s message. Upon learning of the recipient, Respondent sought out Ms. Kemp to apologize and explain that the message was intended as a joke. The evidence suggests that all involved recognized the text as an act of obnoxiousness on the part of Respondent rather than a serious act of a sexual nature.

114. Though Respondent’s act of texting Ms. Kemp from Deputy Hummell’s telephone was childish, it was not an act that constituted sexual harassment involving physical contact or misuse of position by inappropriate touching. Under the facts of this case, the text message to Ms. Kemp could not reasonably have created an intimidating, hostile, or offensive work environment for Deputy Hummell.

115. During the hearing, testimony was elicited from Deputy Hummell regarding allegations of other incidents including Respondent’s response to a practical joke involving a photograph taken while he was sleeping on-duty with a coffee filter having been placed on his head by fellow officers, of Respondent placing Deputy Hummell in an arm-bar, of Respondent grabbing Deputy Hummell’s keys, and of Respondent “flicking” the antenna of Deputy Hummell’s radio, which she wore on her belt. There was no competent, substantial, and credible evidence that any of those

     
     

     incidents occurred on or between January 1, 2011 and April 7, 2012.

116. As to paragraph 2.(c) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell.

     Paragraph 2.(d) - Vickie Hughes

     
     

117. In paragraph 2.(d) of the Administrative Complaint, Petitioner alleged that:

     On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim.

     
     

118. Deputy Hughes has served as a detention deputy since 2005. In the period since, she has moved around, and has served a period at the Wakulla County jail during which Respondent was her supervisor. The period during which Deputy Hughes was supervised by Respondent was not specified.

119. On two or three occasions over the years, Respondent brushed Deputy Hughes’ breast with his elbow. Each incident occurred at the doorway of Station 1. The area at the doorway of

     
     

     Station 1 is very narrow due to the location of the lieutenant’s duty desk and the edge of the control panel desk, which has created an opening to and from the control room through which two persons could not pass without turning sideways. Lieutenant Deal testified, credibly, that “if you turn sideways and you pass, you most likely are going to brush against each other.”

120. The incidents described by Deputy Hughes were few in number, widely spaced in time, and were unaccompanied by any sexually suggestive comments. Deputy Hughes felt they were intentional because Respondent did not apologize but rather “had a smart look on his face and laughed about it.” Deputy Hughes’ impression of Respondent’s actions may have been influenced by the palpable animosity that she exhibited towards Respondent. In any event, there was insufficient evidence to infer any intent on Respondent’s part to brush Deputy Hughes’ breast in passing, and no clear and convincing evidence that the act constituted sexual harassment involving physical contact or misuse of position on the part of Respondent.

121. Deputy Hughes could not place when the alleged breast brushes may have occurred. When asked specifically if they occurred after January 1, 2011, Deputy Hughes testified that “I don't know exactly when it -- I mean, I don't know exactly when it happened, the years. It could have happened before. It might have happened before. I mean, I've been there since 2005, so I

     
     

     don't know exactly when it happened.” Thus, there is insufficient evidence to support a finding that the incidents occurred between January 1, 2011 and April 7, 2012, as alleged.

122. Deputy Hughes further testified that on one occasion, Respondent stated that “his goal was to get into her pants.” She did not write down an account of the incident “because I blew it off,” and did not otherwise report the incident. There were no witnesses to the incident, and it was denied by Respondent. Deputy Hughes testified that the incident occurred “way before the complaint was filed” on May 23, 2012, perhaps years before. Thus, there is insufficient evidence to support a finding that the alleged statement, even if made, was made between January 1, 2011 and April 7, 2012.

123. As to paragraph 2.(d) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes.

     Paragraph 2.(e) - Charlie Boyatt

     
     

124. In paragraph 2.(e) of the Administrative Complaint, Petitioner alleged that:

     On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which

     
     

     constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim.

     
     

125. Ms. Boyatt was hired as an employee of the WCSO starting on December 25, 2009. In February 2010, she became a corrections officer assistant at the jail. She was moved back to dispatch in September 2010, back to corrections in January 2011, and back to dispatch in January 2012, a position that she remained in up to the time of the hearing.

126. Ms. Boyatt was under Respondent’s supervision from February, 2010 until June or July 2010.

127. When she started at the jail in February 2010,

     
     

     Ms. Boyatt did her training in the control room. After her training, and until her transfer to dispatch in September 2010, Ms. Boyatt was assigned to the control room during every shift.

128. After Ms. Boyatt completed her training in 2010, Respondent would occasionally sit next to her at the control panel and monitors to talk. Ms. Boyatt testified that Respondent would occasionally reach across her chest to get something.

     Ms. Boyatt was not clear as to whether he may have brushed her breast when doing so, though she admitted that Respondent never deliberately grabbed her breasts. If she moved to get up, Respondent would catch her leg in between his knees. Ms. Boyatt

     
     

     further testified that on other occasions, Respondent would poke her in the ribs or under the arm at a pressure point.

     Ms. Boyatt’s descriptions of the incidents, which were denied by Respondent, were suggestive of boorishness rather than sexuality.

129. During the period of Ms. Boyatt’s supervision by Respondent, she testified that Respondent squeezed her knee on several occasions while “messing around” with her, and placed her in an “arm-lock” on five or six occasions.

130. Other than the incidents described, Respondent made no sexually suggestive comments, did not touch Ms. Boyatt’s breasts or buttocks, or engage in other acts that might be construed to be sexual harassment.

131. Shortly after she started at the jail in February 2010, Ms. Boyatt testified that she was told by Lieutenant Martin that Respondent had bragged to Lieutenant Martin’s husband that he was having sex with Ms. Boyatt. There is no direct evidence of Respondent having made that comment other than Lieutenant Martin’s third-hand and hearsay statement. Ms. Boyatt never asked Respondent if he made the statement. Respondent denied that he made any such statement.

132. Later, Ms. Boyatt testified that Respondent told her that his wife and children were out of town for spring break, and that he had the house to himself. Ms. Boyatt did not testify that there was any suggestion of an invitation in the comment.

     
     

133. Though Ms. Boyatt testified that Respondent made her uncomfortable, “there really wasn't a whole lot I could do being under his supervision.”

134. The evidence is clear and convincing that the incidents described by Ms. Boyatt, even assuming their truth, occurred in 2010 during the period that Ms. Boyatt was under Respondent’s supervision.

135. After her return to the jail in January 2011,

     
     

     Ms. Boyatt was not under Respondent’s supervision. She was assigned by her supervisor to the control room every once in a while, but her normal duty station for the period from January 2011 until January 2012 was on “A-side” with the immigration inmates. There was no competent, substantial, and credible evidence of Ms. Boyatt having any contact with Respondent while assigned to the jail in 2011.

136. Ms. Boyatt testified that “just a few times” after her return to dispatch in January 2012, at which time she was pregnant, Respondent would “pop up” and grab her shoulders. She would tell him to “quit or go on, because I would be working.” There was nothing in the testimony or otherwise of any sexual intent on Respondent’s part, or that Ms. Boyatt ascribed any sexual meaning to the visits. The act of grabbing Ms. Boyatt by the shoulders was not inconsistent with the social norms that existed at the Wakulla County jail as described by several

     
     

     credible witnesses, including Deputy Metcalf who indicated that such was commonplace. Ms. Boyatt could not identify any “exact date” on which those incidents occurred.

137. Respondent never reported any of the incidents described in her testimony.

138. The greater weight of the competent, substantial, and credible evidence in this case demonstrates that the events described in paragraphs 128 through 133 occurred prior to January 1, 2011.

139. The evidence is not clear and convincing that the incidents during which Respondent grabbed Ms. Boyatt by the shoulders in 2012 occurred on or before April 7, 2012. Furthermore, the evidence is not clear and convincing that those incidents, which are not themselves sexual in nature, and which were unaccompanied by sexual comments or innuendo, were such to constitute sexual harassment.

140. As to paragraph 2.(e) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt.

     
     

     Paragraph 2.(f) - Lisa Hummell (n/k/a Lisa Hummell Crum)

     
     

141. In paragraph 2.(f) of the Administrative Complaint, Petitioner alleged that:

     On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Lisa Hummel, by actually touching or striking Lisa Hummell or intentionally causing bodily harm to Lisa Hummell against her will.

     
     

142. As set forth in paragraphs 109 through 115 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Deputy Hummell at any time on or between January 1, 2011 and April 7, 2012. Thus, as to paragraph 2.(f) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Deputy Hummell against her will.

     Paragraph 2.(g) - Charlie Boyatt

     
     

143. In paragraph 2.(g) of the Administrative Complaint, Petitioner alleged that:

     On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Charlie Boyatt, by actually touching or striking Charlie Boyatt or intentionally causing bodily harm to Charlie Boyatt against her will.

     
     

144. As set forth in paragraphs 128 through 133 and paragraph 136 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Ms. Boyatt at any time on or between January 1, 2011 and April 7, 2012. Rather, the evidence clearly establishes that most of the incidents described by Ms. Boyatt occurred in 2010. As to the incidents in which Respondent “grabbed” Ms. Boyatt by the shoulders in 2012, the evidence does not establish that the incidents occurred on or before April 7, 2012. Thus, as to paragraph 2.(g) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Ms. Boyatt against her will.

     CONCLUSIONS OF LAW

     
     

     1. Jurisdiction

        
        

145. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

     1. Standards

        
        

146. The Administrative Complaint charges Respondent with violating section 943.13(7), section 943.1395(7), and rules 11B- 27.0011(4)(b) and (c).

     
     

147. Section 943.13(7) provides that any person employed or appointed as a law enforcement officer or correctional officer shall “[h]ave a good moral character as determined by a background investigation under procedures established by the commission.”

148. Florida Administrative Code Rule 11B-27.0011(4) defines conduct that constitutes a failure to maintain good moral character that includes:

     (4) For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

     
     

     * * *

     
     

     1. Except as otherwise provided in Section 943.13(4), F.S., . . . the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

        
        

        1. Sections . . . 784.03, . . . F.S.

        
        

        * * *

        
        

     2. The perpetration by an officer of acts or conduct that constitute the following offenses:

     
     

     * * *

     
     

     2. Misuse of official position, defined by Section 112.313(6), F.S.

     
     

     * * *

     
     

     4. Sexual harassment pursuant to and consistent with decisions interpreting 29

     C.F.R. 1604.11, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when the harassment involves physical contact or misuse of official position and when:

     
     

     1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

        
        

     2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

        
        

     3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

     
     

149. Section 112.313(6) provides, in pertinent part, that:

     
     

     No public officer . . . shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.

     
     

150. Section 943.1395(7) provides that:

     
     

     Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by

     s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

     
     

     1. Revocation of certification.

        
        

     2. Suspension of certification for a period not to exceed 2 years.

        
        

     3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

        
        

     4. Successful completion by the officer of any basic recruit, advanced, or career development training, or such retraining deemed appropriate by the commission.

        
        

     5. Issuance of a reprimand.

     
     

     1. Burden of Proof

        
        

151. The Administrative Complaint charges Respondent with violating section 943.13(7), section 943.1395(7), and rule 11B- 27.0011(4)(b) and (c), on the grounds that Respondent failed to maintain good moral character.

152. The Petitioner bears the burden of proving the specific allegations of fact (see Endnote 1) that support the

     charges alleged in the Administrative Complaint by clear and convincing evidence. § 120.57(1)(j), Fla. Stat.; Dep’t of

     Banking & Fin., Div. of Sec. and Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); see also Ferris v. Turlington,

     510 So. 2d 292 (Fla. 1987); Fox v. Dep’t of Health, 994 So. 2d

     
     

     416 (Fla. 1st DCA 2008); Kany v. Fla. Eng'rs Mgmt. Corp., 948 So.

     
     

     2d 948 (Fla. 5th DCA 2007); Dieguez v. Dep’t of Law Enf., Crim.

     
     

     Just. Stds. & Training Comm’n, 947 So. 2d 591 (Fla. 3d DCA 2007);

     
     

     Pou v. Dep’t of Ins. and Treas., 707 So. 2d 941 (Fla. 3d DCA

     
     

     1998).

     
     

153. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,

     696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof

     entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

     
     

     Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

     
     

     In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

     
     

     approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

     "Although [the clear and convincing] standard of proof may be met where the evidence is in conflict, it seems to preclude evidence

     
     

     that is ambiguous." Westinghouse Electric Corp. v. Shuler Bros.,

     
     

     590 So. 2d 986, 989 (Fla. 1st DCA 1991).

     
     

154. Section 943.1395(7) is penal in nature, and must be strictly construed, with any ambiguity construed against the Petitioner. Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep’t of Bus. & Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA

     1990); see also Beckett v. Dep’t of Fin. Svcs., 982 So. 2d 94,

     
     

     100 (Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d

     
     

     528, 531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. & Treas., 585

     
     

     So. 2d 1009, 1013 (Fla. 1st DCA 1991); Davis v. Dep't of Prof'l Reg., 457 So. 2d 1074, 1076 (Fla. 1st DCA 1984).

155. The allegations of fact set forth in the Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So.

     2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope

     of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep’t of Child. & Fam. Servs., 977

     So. 2d 755, 763 (Fla. 2d DCA 2008).

     
     

     1. Analysis

        
        

156. Petitioner has established that the term “sexual harassment” is to be defined “consistent with decisions interpreting 29 C.F.R. 1604.11.”

157. The United States Supreme Court has provided a comprehensive analysis of 29 C.F.R. 1604.11 in a series of oft- cited decisions.

158. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57

     
     

     (1986), the Court held that:

     
     

     In defining “sexual harassment,” the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include “[unwelcome] sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 29 CFR § 1604.11(a) (1985). Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited “sexual harassment,” whether or not it is directly linked to the grant or denial of an

     economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.”

     §1604.11(a)(3).

     
     

     Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 65.

     
     

159. In making the determination of whether a particular incident or series of incidents constitute sexual harassment, the Court recognized that:

     The EEOC Guidelines emphasize that the trier of fact must determine the existence

     
     

     of sexual harassment in light of "the record as a whole" and "the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 CFR

     § 1604.11(b) (1985).

     
     

     Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 69.

     
     

160. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court explained that:

     [I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the

     “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” A recurring point in these opinions is that “simple teasing,” offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.”

     
     

     These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Properly applied, they will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender- related jokes, and occasional teasing.” We

     
     

     have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view. (internal citations omitted).

     
     

     Faragher v. City of Boca Raton, 524 U.S. at 787-788.

     
     

161. In explaining the standards to be applied when a trier of fact is called upon to distinguish actionable sexual harassment from other more innocuous behavior, the Court has held that:

     [H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex . . . .

     Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimination . . . because of sex."

     
     

     And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized

     in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim's employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.” We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary

     
     

     socializing in the workplace -- such as male- on-male horseplay or intersexual flirtation –

     - for discriminatory “conditions of employment.”

     
     

     We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering “all the circumstances.” . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.

     Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. (Internal citations omitted.)

     
     

     Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80-82 (1998)

     
     

162. In applying the standards established by the Supreme Court, the Second Circuit Court of Appeals has held that:

     “[T]he question of whether considerations of the plaintiffs sex ‘caused the conduct at issue often requires an assessment of individuals’ motivations and state of mind.’” Issues of causation, intent, and motivation are questions of fact.

     
     

     * * *

     
     

     Likewise, “[t]he question of whether a work environment is sufficiently hostile to violate Title VII is one of fact.” “[T]he line between boorish and inappropriate behavior and actionable sexual harassment . .

     . is admittedly indistinct, [and] its haziness counsels against summary judgment.” The interpretation of ambiguous conduct is “an issue for the jury.”

     
     

     The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.” (Internal citations omitted.)

     
     

     Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 178 (2nd Cir.

     
     

     2012).

     
     

     1. Conclusions

     
     

163. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2006 through June 7, 2011, Respondent engaged in acts with Lieutenant Martin which constituted sexual harassment involving physical contact or misuse of position against Lieutenant Martin as construed in decisions interpreting 29

     C.F.R. 1604.11. Furthermore, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2006 through

     June 7, 2011, Respondent corruptly used or attempted to use his

     
     

     official position, or performed his official duties, to secure a special privilege, benefit, or exemption for himself with regard to Lieutenant Martin. Thus, the allegations in paragraphs 2.(a) of the Administrative Complaint that, during the time frame alleged, Respondent violated section 943.1395(7) or rule 11B- 27.0011(4)(c), or that Respondent failed to maintain the qualifications established in section 943.13(7), were not sustained and must be dismissed.

164. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent engaged in acts with Deputy Jacques which constituted sexual harassment involving physical contact or misuse of position against Deputy Jacques as construed in decisions interpreting 29 C.F.R. 1604.11. Furthermore, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent corruptly used or attempted to use his official position, or performed his official duties, to secure a special privilege, benefit, or exemption for himself with regard to Deputy Jacques. Thus, the allegations in paragraphs 2.(b) of the Administrative Complaint that, during the time frame alleged, Respondent violated section 943.1395(7) or rule 11B- 27.0011(4)(c), or that Respondent failed to maintain the

     
     

     qualifications established in section 943.13(7), were not sustained and must be dismissed.

165. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent engaged in acts with Deputy Hummell which constituted sexual harassment involving physical contact or misuse of position against Deputy Hummell as construed in decisions interpreting 29 C.F.R. 1604.11. Furthermore, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent corruptly used or attempted to use his official position, or performed his official duties, to secure a special privilege, benefit, or exemption for himself with regard to Deputy Hummell. Thus, the allegations in paragraphs 2.(c) of the Administrative Complaint that, during the time frame alleged, Respondent violated section 943.1395(7) or rule 11B- 27.0011(4)(c), or that Respondent failed to maintain the qualifications established in section 943.13(7), were not sustained and must be dismissed.

166. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent engaged in acts with Deputy Hughes which constituted sexual harassment involving physical contact or misuse of position against Deputy

     
     

     Hughes as construed in decisions interpreting 29 C.F.R. 1604.11. Furthermore, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent corruptly used or attempted to use his official position, or performed his official duties, to secure a special privilege, benefit, or exemption for himself with regard to Deputy Hughes. Thus, the allegations in paragraphs 2.(d) of the Administrative Complaint that, during the time frame alleged, Respondent violated section 943.1395(7) or rule 11B- 27.0011(4)(c), or that Respondent failed to maintain the qualifications established in section 943.13(7), were not sustained and must be dismissed.

167. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent engaged in acts with Ms. Boyatt which constituted sexual harassment involving physical contact or misuse of position against

     Ms. Boyatt as construed in decisions interpreting 29 C.F.R. 1604.11. Furthermore, Petitioner failed to prove by clear and convincing evidence that, from January 1, 2011 through April 7, 2012, Respondent corruptly used or attempted to use his official position, or performed his official duties, to secure a special privilege, benefit, or exemption for himself with regard to

     Ms. Boyatt. Thus, the allegations in paragraphs 2.(e) of the

     
     

     Administrative Complaint that, during the time frame alleged, Respondent violated section 943.1395(7) or rule 11B- 27.0011(4)(c), or that Respondent failed to maintain the qualifications established in section 943.13(7), were not sustained and must be dismissed.

168. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that Respondent touched Deputy Hummell at any time on or between January 1, 2011 and April 7, 2012. Thus, the allegation in paragraphs 2.(f) of the Administrative Complaint that Respondent violated section 784.03 and rule 11B-27.0011(4)(b), by unlawfully committing a battery upon Deputy Hummell by touching, striking, or intentionally causing bodily harm to her during that specified time frame, as alleged, were not sustained and must be dismissed.

169. As set forth in the Findings of Fact herein, Petitioner failed to prove by clear and convincing evidence that Respondent touched Ms. Boyatt at any time on or between

January 1, 2011 and April 7, 2012. Thus, the allegation in paragraphs 2.(g) of the Administrative Complaint that Respondent violated section 784.03 and rule 11B-27.0011(4)(b), by unlawfully committing a battery upon Ms. Boyatt by touching, striking, or intentionally causing bodily harm to her during that specified time frame, as alleged, were not sustained and must be dismissed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint.

DONE AND ENTERED this 30th day of May, 2014, in Tallahassee,

Leon County, Florida.

S

E. GARY EARLY 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 30th day of May, 2014.

ENDNOTES

1/ The undersigned is troubled by the absolute lack of any meaningful allegation of “[t]he facts or conduct relied on to establish the violation” in the Administrative Complaint. Rule 28-106.2015(4)(c). The Administrative Complaint merely contained non-specific, conclusory allegations that Respondent engaged in “an act or acts” constituting sexual harassment or battery over periods of time ranging from 16 months to 5 1/2 years. There was no indication of what the acts may have been, or when they may have occurred.

It is well-settled that “[a]lthough a complaint filed by an administrative agency is not required to fulfill the technical niceties of a legal pleading, it must be specific enough to inform the accused with reasonable certainty of the nature of the charges.” Hunter v. Dep’t of Prof’l Reg., 458 So. 2d 842, 844

(Fla. 2nd DCA 1984). An administrative complaint must “state with specificity the acts complained of to allow the licensee a fair chance to prepare a defense.” Davis v. Dep't of Prof'l Reg., 457 So. 2d 1074, 1077 (Fla. 1st DCA 1984); see also Lewis v. Crim. Just. Stds. & Training Comm’n, 462 So. 2d 528 (Fla. 1st DCA 1985).

The allegations in this case are grossly deficient even under the relaxed standard of pleading that applies to administrative complaints. The Administrative Complaint contains not a single allegation of a specific act or incident to support the violations. The Administrative Complaint might as well have alleged that, within the period of time alleged, “Respondent did something bad.”

Over the course of the hearing, it became clear that Respondent was frequently reacting to statements of alleged conduct about which he had no notice, his counsel commenting on one occasion that “it’s hard for me to anticipate new allegations when it’s just a narrative, ‘Tell me every time he's ever done something wrong,’” and on another occasion “this is the first time we're hearing about it.” One witness admitted that her testimony regarding an incident had never been revealed prior to her taking the stand, stating that “[h]ere recently, I've remembered several things that he's done. . . . I just know that there's a lot of other incidents, but I can't -- I can't tell you dates on those.” Acts which had never before been revealed could not form the basis of an allegation in the Administrative Complaint. As a result, the undersigned was left to guess which portions of the testimony formed the basis for the Administrative Complaint, and which were a non-actionable litany of slights and insults designed to show that Respondent was a jerk.

Despite the lack of specificity, the degree of which causes the undersigned to seriously question whether reasonable notice and due process were afforded to Respondent, there were no motions filed challenging the Administrative Complaint. Although there were objections to specific questions, there was no request by Respondent for a more definite statement or dismissal. Thus, in the absence of an objection, this Order will address the issues on their merits, where possible.

2/ Many of the witnesses in this proceeding were Detention Deputies with the WCSO. For ease of reference and brevity, the undersigned will refer to those witnesses as “Deputy,” followed by their last name.

3/ Respondent testified that he was the subject of incidents of horseplay, including having hairs plucked from and circles drawn in ink around his bald spot, being “goosed” in the ribs, and being tripped up while walking. While not directly corroborated by other witnesses, his testimony was consistent with the general atmosphere of rambunctiousness that existed at the jail.

4/ The undersigned recognizes that Lieutenant Martin’s account of Deputy Johnson’s statements is hearsay. The statements are accepted here, not for the truth of the matters asserted by Deputy Johnson, but for the purpose of questioning, in light of Lieutenant Martin’s testimony that she received the information, why she would not have reported such a serious allegation.

5/ Despite purportedly having information of improper conduct by Respondent towards herself and others, Lieutenant Martin had never reported that conduct to any responsible officer of the WCSO, despite policy requiring such.

6/ The report of the investigation of Deputy Jacques for passing contraband was introduced in evidence, and provided a thorough and descriptive account of the particular incidents involved in that unrelated and irrelevant matter.

7/ In an intriguing series of e-mails exchanged on April 17, 2012, Karen Ward advised Deputy Jacques that “it’s [Respondent’s] own fault it’s getting out of hand and they have video evidence against him,” to which Deputy Jacques replied “Wow . . well then there’s nothing for me to say . . . they got wat [sic.] they need.” Respondent also appeared to believe that the security camera recordings had been reviewed, testifying that Lieutenant Maxwell had advised him that she let Lieutenant Martin look at them “[o]n her computer, yeah, in her office.” If the tapes had been reviewed, and the information resulting therefrom concealed until the images were taped over, such would suggest a prejudicial degree of malfeasance that would warrant an exculpatory inference. However, despite the contemporaneous suggestion that the recordings had been reviewed, the evidence of such is entirely hearsay and thus no finding can be made based thereon.

8/ Lieutenant Martin testified that once, while performing an arm bar, Respondent tried to put her hand near his groin, an incident denied by Respondent. Though Lieutenant Martin indicated that the incident was witnessed by Deputy Hughes, Deputy Hughes did not corroborate the testimony. Respondent

denied the incident. The evidence is not clear and convincing that the incident as described by Lieutenant Martin occurred.

9/ More colorful descriptions of Respondent were provided by Deputy Zimba and Deputy Billy Metcalf which, though indicating that they were less than satisfied with his supervisory duties, did not suggest that Respondent engaged in identifiable acts of sexual harassment.

10/ Respondent testified that, although he was generally blamed for leaving promptly at 4:30, regardless of whether Deputy Hummell had called to let the group know she was running late, the decision to leave was usually that of the driver, Deputy Gibson, who was motivated to comply with the instructions provided to him by memo from a higher-ranking officer.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Stephen G. Webster, Esquire

Law Office of Stephen G. Webster, LLC 610 North Duval Street

Tallahassee, Florida 32301

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Thomas Kirwin, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

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: 13-002999PL

Orders for Case No: 13-002999PL