Judges: ARNOLD H. POLLOCK
Agency: County School Boards
Latest Update: Nov. 01, 1990
Summary: Respondent, YWCA, committed an unlawful employment practice by firing un-wed mother. Petitioner is entitled $13,551 in damages.
82-3095.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3095
)
ERWIN McQUOWN, )
)
Respondent. )
) SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3096
)
RICHARD SCARBERRY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a hearing in the above- styled cases on January 6, 1983, in the Pinellas County School Board Administration Building, Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
School Board of Pinellas County 1960 East Druid Road
Post Office Box 4688 Clearwater, Florida 33518
For Respondents: Brian C. Harrington, Esquire
Fisher & Sauls, P.A.
501 Florida National Bank Bldg. Post Office Box 387
St. Petersburg, Florida 33731 Attorney for ERWIN McQUOWN
Ky M. Koch, Esquire Bauer & Koch
15201 Roosevelt Boulevard, Suite 102
Clearwater, Florida 33520 Attorney for RICHARD SCARBERRY
By letter dated October 20, 1982, Dr. Scott N. Rose, Superintendent of Schools, Pinellas County, Florida, suspended the Respondent McQuown from employment as a campus policeman, without pay, based upon the following charges:
Oct. 9, 1982--shoved, thereby committing a battery upon, an intoxicated person at the Brass Rail Restaurant & Lounge.
Oct. 9, 1982--disregarded the safety of the same by placing him adjacent to a major highway and allowing him to cross.
Oct. 9, 1982--withheld information from a deputy sheriff.
Oct. 9, 1982, et seq., failed to notify supervisor of his involvement in the incident of Oct. 9.
Thereafter, on January 3, 1983, the same Dr. Rose, by letter, informed Respondent of an additional charge, alleging that the Respondent violated a school board policy that campus police officers were not to act as police officers in nonschool matters, by identifying himself as a police officer.
By letter dated October 20, 1982, the same Dr. Rose suspended Respondent Scarberry from employment as a campus policeman, without pay, based upon the following charges:
Oct. 9, 1982--shoved, thereby committing a battery upon, an intoxicated person at the Brass Rail Restaurant & Lounge.
Oct. 9, 1982--disregarded the safety of the same by placing him adjacent to a major highway and allowing him to cross.
Oct. 9, 1982--withheld information from a deputy sheriff.
Oct. 9, 1982, et seq., failed to notify supervisor of his involvement in the incident of Oct. 9.
Thereafter, on January 3, 1983, the same Dr. Rose, by letter, informed Respondent Scarberry of an additional charge of intentionally or negligently failing to inventory and report evidence, in the form of an AM/FM tape player/radio, that came into his custody while he was acting as a campus policeman. This failure is alleged to be a direct violation of specific policy concerning the handling of evidence and general standards of good police practice.
Both Respondents requested a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Prior to the hearing, a motion was made to consolidate the two cases as one hearing, and the Hearing Officer, upon convening the hearing, granted the motion. The two cases were consolidated.
Also, prior to the taking of any testimony, the parties stipulated, inter alia, that there was no battery or assault committed by either Respondent.
Petitioner then withdrew the allegation as to each Respondent.
FINDINGS OF FACT
At approximately 11:30 p.m. on the evening of October 9, 1982, the Respondent Erwin McQuown, in the company of the Respondent Richard Scarberry and Scarberry's wife, arrived outside the Brass Rail Restaurant in Largo, Florida. Mr. McQuown exited the vehicle, leaving the Scarberrys inside with the intention of entering the restaurant to see if several out-of-town police officers and a local campus police officer named Sue Wiley, whom they had referred to this place earlier, were inside.
Mr. McQuown has been a policeman for over thirteen years and has been employed by the Pinellas County School Board as a campus policeman for over eight and a half years.
Mr. McQuown had been to the Brass Rail Restaurant approximately ten times prior to the evening in question and was known to the owner to be a policeman.
As he approached the entrance, Mr. McQuown saw a white male individual subsequently identified as Douglas Parks lying on his back on the ground outside the entrance to the restaurant surrounded by a group of other individuals, one of whom was the owner of the Brass Rail, Izaac Azoulay.
At this point, Mr. Azoulay, who had just been involved in a dispute with Mr. Parks over Parks' attempted reentry into the Brass Rail after being ejected, requested Respondent McQuown to talk to Parks and show Parks his police badge. McQuown agreed and advised Parks that he, McQuown, was a police officer, that Parks should leave, and that Azoulay could have him arrested if he did not leave. At no time did McQuown state that he, McQuown, would arrest parks. Notwithstanding McQuown'S advice, Parks, who was substantially intoxicated at the time, again attempted to get back into the restaurant and attempted to pass by McQuown.
At that time, it appeared to McQuown that Parks and Azoulay were again going to get into a physical altercation, so he inserted himself between Parks and Azoulay in the door.
At this time, Respondent Scarberry, who had observed what was transpiring from the McQuown car, where he had been waiting with his wife, recognizing that his friend McQuown could possibly be getting into a dangerous situation, came over to the area and interjected himself by grabbing Parks by the shoulder, spinning him around, and giving him a shove, telling him to get out of the area. Parks resisted, and Scarberry again grabbed him, gave him a push, and told him to "get the hell out of [there]."
At no time did either McQuown or Scarberry knock Parks to the ground, strike him, beat him, kick him, or in any other way molest him other than the push by Scarberry that was mentioned above. On his own two feet and without any assistance, Parks crossed the Brass Rail parking lot to Roosevelt Boulevards a distance of approximately 75 feet, without either McQuown or Scarberry accompanying him; crossed Roosevelt Boulevard; and went to the Pix Quick store on the other side of the street. In the meantime, McQuown and Scarberry went into the lounge with Scarberry's wife and sat down at a table. During their second drinks, the owner came over and said there was a deputy sheriff outside who wanted to talk to McQuown. McQuown went outside and talked with Pinellas County Deputy Sheriff Janice Shine, who was accompanied by Pinellas County Sheriff Department Sergeant David Van Leeuwen.
Shine and Van Leeuwen advised McQuown that Parks had accused him of assault and battery. In response to that, McQuown advised the deputy that there were additional witnesses inside who would be willing to discuss with them the alleged assault. McQuown did not, however, tell the deputy that Respondent Scarberry had in fact pushed Parks. In response to his comment about other witnesses, Sergeant Van Leeuwen said that he should bring them to court with him. Van Leeuwen also advised McQuown that this matter would be reported to the Pinellas County State Attorney and that he, McQuown, should either orally or in writing report the incident to his supervisor.
When the deputies left, McQuown went back into the restaurant and discussed the matter with the Scarberrys. Respondent McQuown was not arrested; and, in fact, he did not report the incident to his supervisor the following day, Sunday, October 10, primarily because he did not think that it was of a serious nature that needed reporting. On Monday, October 11, he was home sick with a sinus attack. However, while he was resting at home, Respondent Scarberry brought over a copy of the deputy's report concerning the incident; and when McQuown read it, he immediately went out and hired an attorney. However, even on October 11, he did not report the incident to his supervisor because after having discussed the matter with his attorney, his attorney advised him not to say anything about the incident until he could get back with him further.
On Tuesday, October 12, 1982, Respondent McQuown was called into his supervisor's office at the Pinellas County School Board and asked about the incident in question. At first, he declined to answer, upon advice of counsel, and requested an opportunity to speak with his attorney. This was given him; and when he ultimately did get in contact with his attorney, his attorney advised him to go ahead and tell the authorities what they needed to know, which McQuown in fact did.
That same day, Deputy Chief Joe Seraca and Officer M. A. McCrimmon, both of the Pinellas County School Board campus police, initiated an internal affairs investigation of the alleged incident at approximately 11:30 a.m. The investigation was to continue for several days. However, after talking with both Respondents Scarberry and McQuown, Deputy Chief Seraca advised them that they should agree to go on leave or vacation until the matter could be fully investigated and resolved. Both agreed to take time off, both gave their deputy cards directly to Deputy Chief Seraca, and turned in their vehicles and equipment until further notice.
On October 13, 1982, the Assistant Superintendent, Mr. Tom Dillon, based on a memorandum relating to the incident prepared that same day by Chief Gene Howell, recommended to Dr. Scott Rose, the Superintendent of Schools, that both Respondents be suspended without pay effective October 20, 1982, and that they be recommended to the full school board for dismissal from employment with the Pinellas County Schools. Chief Howell's memorandum, referred to above, outlined eight separate "violations" in the conduct of both McQuown and Scarberry in that McQuown used poor judgment in intervening in the altercation, that he attempted to obstruct the proper administration of justice by not divulging all information pertinent to the investigation, that Scarberry committed a battery on an intoxicated person, that Scarberry did not consider the safety of an intoxicated person by ordering him to leave the area and allowing him to cross a major highway, that Scarberry failed to come forward and relate his involvement in the matter, that Scarberry improperly handled evidence and diverted it for personal use, that both officers failed to notify their
supervisor, and that both officers conspired to make a mockery of the justice process by intending to allow the investigation to focus on a charge of battery against McQuown and a subsequent coming forth by Scarberry to discredit the State Attorney. There is no evidence of any conspiracy of any nature and certainly not that as alleged in this memorandum.
With regard to Officer Scarberry and the radio, when, on October 12, 1982, Officer Scarberry was asked to turn in his state car, which he had been using in the performance of his duties, it was found to contain in the trunk thereof a small AM/FM radio which was subsequently identified to be a piece of evidence in an investigation run by Officer Scarberry from nine months previously. At the time the investigation was underway, Scarberry placed the evidence in the trunk of the car and, as he relates, logged it into the file in accordance with the procedures in existence at that time. However, subsequent to the time of the confiscation of the property, sometime in May 1982, the policy regarding evidence was changed to require evidence to be logged with proper paperwork and turned in to the evidence custodian. This policy was to pertain also to all evidence currently in the custody of investigating officers.
This piece of evidence, along with two boxes of other evidence relating to another offense, had been in the back of Scarberry's state car for a substantial period of time. At the time of the changeover, the two boxes of other evidence were properly released to school board officials, since the property in question was school board property. Scarberry forgot to take the radio back to the person to whom it belonged or to turn it in at the time of that changeover. He admits he should have turned it in, that he overlooked it, and that he forgot about it.
Both Scarberry and McQuown have received excellent evaluations by their supervisors over the past seven or eight years. Scarberry has never had any disciplinary action taken against him in the entire time he has been with the Pinellas County School System. McQuown had one minor reprimand several years ago for a minor offense. Aside from that, he has a completely clean record, and both individuals have the high esteem of their co-workers, principals, and deans throughout the Pinellas County School System.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The allegations of battery against both Respondents being withdrawn, there is no ground existing here for suspension or dismissal on that basis.
Respondents are alleged to have disregarded the safety of an intoxicated person by placing him adjacent to a major highway and allowing him to cross. The evidence, including the testimony of the so-called victim, Parks, indicates that Parks left the scene of his own volition and was not accompanied out into the parking lot by anyone, including the Respondents. No one led him out; no one placed him there. In short, there is no credible evidence to indicate in any way that either Respondent "placed" Parks adjacent to the highway. There is no evidence that either Respondent had any legitimate responsibility to Parks after he turned away from the entrance to the lounge, nor that they in any way failed to fulfill any duty to him.
With regard to the allegation that the Respondents withheld information from a deputy sheriff, the evidence indicates that Respondent Scarberry had already entered the lounge with his wife and was sitting with her and Respondent McQuown at a table when Deputy Van Leeuwen arrived at the scene and asked to see McQuown. Scarberry was not called out or questioned, and in fact did not know of the deputy's presence until after the deputy had departed. Therefore, Scarberry cannot reasonably be held to have violated this campus police policy.
As to Respondent McQuown, Van Leeuwen did not question McQuown as a suspect, but interviewed him as a witness/participant. Thereafter, he advised McQuown to report the matter to his supervisor. McQuown testified, uncontradicted, that during the course of the interview with the deputy, he, McQuown, volunteered the information that others with knowledge of what happened were inside. According to McQuown, Van Leeuwen did not desire to question them, but said, "Bring them to court." This evidence cannot readily be said to constitute the picture of a man attempting to conceal or withhold information. Parks was there, Deputy Shine was there, Azoulay was there, and so were others employed by Azoulay. Having told Van Leeuwen all that he did, there was no basis for responsibility on the part of McQuown to tell more than he did; specifically, that Scarberry was the one who was also involved. Therefore, it cannot be concluded that McQuown violated the campus police policy either.
McQuown is also alleged to have failed to notify his supervisor of his involvement in this incident. Campus Police Policy 202.43 states:
Compromising Criminal Cases--Members and employees shall not interfere with proper administration of criminal justice. Except in the interest of justice, members and employees shall not attempt to have any traffic citation reduced, voided or stricken from the calendar. Any member or employee having knowledge of such action and failing to inform his superior officer shall be subject to charges thereof.
It appears that Petitioner is utilizing this policy as the basis of its allegation that Respondent McQuown failed to report his involvement to his supervisor. Neither this police policy nor Campus Police Policy 202.9 requires an individual to report his own involvement. It is clear that both provisions are designed to encourage and require officers to report incidents involving others of which they became aware. To hold otherwise would make no sense whatever. While it may well have been the intention of the department hierarchy to require self-reporting, the current policy statements just do not do so. Therefore, it must be concluded that Respondent McQuown committed no violation.
The final allegation against Respondent McQuown is that he improperly acted as a police officer in a nonschool matter. The allegation is charged as a violation of direct policy, yet this policy is not identified. The Hearing Officer took judicial notice of two Special Acts of the Florida Legislature (Chapters 76-477 and 75-7686, Laws of Florida) which create the Campus Police System and which limit the authority of the campus police to matters involving school matters.
It is recognized that by no stretch of the imagination could the incident at the Brass Rail be considered a school matter. As such, if McQuown had acted as a police officer in that situation, he would have been guilty of
violating the policy as alleged, but here it would indeed be stretching matters to consider McQuown's actions as "acting as a police officer." He was confronted by a hostile drunk after having been requested by an acquaintance to intercede. His participation was to identify himself as a policeman and then to use reason and persuasion to request the intoxicated party to leave. He did not threaten to arrest him, nor to in any way act himself. His sole reference to arrest was to indicate that the owner, Mr. Azoulay, would have Parks arrested.
The use of the badge and the identification as a police officer constituted a legitimate use of information to get Parks' attention, not an exercise of police power. Therefore, Respondent cannot legitimately be said to have violated this policy directive.
As to Mr. Scarberry, the final allegation against him refers to his failure to inventory and report a radio which was in his possession as evidence in a prior case. His failure to report and inventory, admitted by him in his testimony at the hearing, constitutes a technical violation of the policy in force at the time and a breach of good police practice even when, as here, it is done through negligence. The evidence as presented fails to establish an intentional breach of the rules or any intent to convert or misappropriate the property. Instead, there is a showing of extremely sloppy procedures which, as was stated above, constitutes a violation of the policy in question.
In summary then, the evidence is insufficient to establish that Respondent McQuown is guilty of any infraction. It is also insufficient to establish that Respondent Scarberry is guilty of any infraction other than negligently failing to inventory and report his possession of an AM/FM tape player/radio prior to October 12, 1982.
The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
RECOMMENDATION
As to Respondent McQuown, from the foregoing it is RECOMMENDED:
That he be reinstated in his former position as of October 20, 1982, with reimbursement of back pay from that date.
As to Respondent Scarberry, from the foregoing it is RECOMMENDED:
That he he reinstated in his former position as of October 20, 1982, with back pay from that date, but that he be administratively reprimanded for failure to inventory and report his possession of the AM/FM tape player/radio.
RECOMMENDED this 16th day of February, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1983.
COPIES FURNISHED:
Usher L. Brown, Esquire Associate General Counsel School Board of Pinellas County 1960 East Druid Road
Post Office Box 4688 Clearwater, Florida 33518
Brian C. Harrington, Esquire Fisher & Sauls, P.A.
501 Florida National Bank Bldg. Post Office Box 387
St. Petersburg, Florida 33731
Ky M. Koch, Esquire Bauer & Koch
15201 Roosevelt Boulevard
Suite 102
Clearwater, Florida 33520
Scott N. Rose, Ed.D. Superintendent
School Board of Pinellas County 1960 East Druid Road
Post Office Box 4688 Clearwater, Florida 33518
Docket for Case No: 82-003095
Orders for Case No: 82-003095
| Issue Date |
Document |
Summary |
|
Mar. 16, 1983 |
Agency Final Order
|
|
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Feb. 16, 1983 |
Recommended Order
|
Respondent, YWCA, committed an unlawful employment practice by firing un-wed mother. Petitioner is entitled $13,551 in damages.
|
