STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0020

)

TIMOTHY INGOLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 27 and 28, 1997, in Largo, Florida, before Carolyn Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. Craig, Esquire

205 Brush Street Post Office Box 1427

Tampa, Florida 33601

For Respondent: Edward D. Foreman, Esquire Suite 300

100 Second Avenue North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged and, if so, what disciplinary action should imposed.

PRELIMINARY STATEMENT

By memorandum dated February 15, 1995, Petitioner, Everett

S. Rice, Pinellas County Sheriff, charged Respondent Timothy

Ingold, with two counts of violating the Pinellas County Sheriff's Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Laws of Florida, and various rules and regulations of the Pinellas County Sheriff's Office (PCSO). In Count I, Respondent is charged with engaging in conduct unbecoming a public servant and violating the PCSO rule relating to security of agency business. Count II alleges that Respondent is guilty of engaging in conduct unbecoming a public servant and violating PCSO rules relating to performance of duty and cooperation. Based on these charges, on February 16, 1995, Petitioner notified Respondent that he would be suspended without pay for five days.

Respondent challenged the charges and the penalties imposed and timely requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings on January 2, 1996, for assignment of an administrative law judge to conduct the final hearing and prepare a recommended order. The final hearing was initially scheduled for April 3, 1996, but was continued at the request of Respondent. Subsequently, the hearing was set and continued three other times before it was conducted as noticed above.

Prior to the hearing, the parties stipulated to facts which were accepted and required no proof at hearing. At hearing, Petitioner presented the testimony of three witnesses: Respondent, Sergeant Timothy Ingold; Sergeant Stefanie Campbell;

and Major Quentin M. Vaughn. Petitioner had four exhibits admitted into evidence. Respondent called two witnesses: Respondent, Timothy Ingold, and Peter A. Fire, a retired officer from the Clearwater Police Department. Respondent offered Mr.

Fire as an expert in the area of policies and procedures of police agencies and the application thereof. However, due to his lack of qualifications, Mr. Fire was not accepted as an expert witness. Respondent offered and had four exhibits admitted into evidence. A fifth exhibit offered by Respondent was rejected and not received into evidence.

A transcript of the proceeding was filed on March 24, 1997.

By agreement of the parties, at the conclusion of the hearing, the time period for filing proposed recommended orders was more than ten days after the transcript was filed, thereby waiving the time constraint imposed by Rule 28-5.402, Florida Administrative Code. See Rule 60Q2-031(2), Florida Administrative Code. The parties timely filed their proposed recommended orders under the extended time frame.

After the posthearing proposals were filed, a review of the record revealed that Petitioner’s exhibits had not been filed after the hearing as directed by the undersigned. During a telephone hearing on this matter, Petitioner made an ore tenus motion to file his exhibits out of time. In a written response, Respondent opposed the motion. The exhibits which Petitioner sought to file out of time were documents that had been

presented, examined, and admitted into evidence at the final hearing. Respondent had an opportunity to state his objections and have them ruled upon at that hearing. Consequently, there is no prejudice to Respondent by granting Petitioner’s motion.

Therefore, Petitioner’s motion to file exhibits out of time is granted and the exhibits are accepted and made a part of the record.

FINDINGS OF FACT

1. Respondent, Timothy Ingold, has been employed by the PCSO for seventeen years. In November 1994, Ingold was a sergeant with the PCSO, a position in which he had worked since 1993. On November 19, 1994, Ingold worked the shift which began about midnight and included the early morning hours of November 20, 1994. On this particular evening, Ingold was assigned to Squad Two in the Pinellas Park/Largo area. This assignment required Ingold to supervise six deputies.

2. Ingold is the current president of Local Lodge 43 of the Fraternal Organization of Police (FOP) and has served in this capacity for eight years. As president of FOP, Ingold sometimes files legal actions against the Sheriff on behalf of deputies.

3. Robert Paver has been general counsel to the FOP Local Lodge 43 for approximately seven (7) years and is considered by Ingold to be a personal friend. In the fall of 1994, Mr. Paver was married to Michelle Paver. Ingold knew Michelle Paver

   because prior to November 1994, Ingold and his wife sometimes socialized with Robert Paver and his wife, Michelle Paver.

4. Prior to November 1994, Mr. Paver confided in Ingold about marital problems he was experiencing with Michelle Paver. This included issues relating to Mrs. Paver's relationship with some of her students.

5. The events which are the subject of this case occurred during the late evening hours of November 19, 1994, and into the early morning hours of November 20, 1994. Deputy Roger Reed was a deputy with the PCSO and on duty the evening and early morning of November 19 and 20, 1994.

6. While on patrol in the early morning hours of November 20, 1994, Deputy Reed observed a white male run out to the highway. When the white male saw Deputy Reed's cruiser stop, he attempted to flee. Immediately thereafter, Deputy Reed turned his car around, chased the subject, and apprehended him.

7. Deputy Reed investigated and detained the subject for suspicion of night prowling. During the course of this investigation on November 20, 1994, Deputy Reed learned that the subject was a sixteen year old juvenile.

8. After his initial investigation, Deputy Reed made a radio request for supervisory assistance. When this request was made, Sergeant Scheffer, Deputy Reed's assigned supervisor, was busy and could not immediately respond to the request. Due to

   Sergeant Scheffer's unavailability, Ingold reported to the scene in response to Deputy Reed's request for supervisory assistance.

9. When Ingold arrived at the scene, Deputy Reed was there along with the juvenile who was in the back seat of the cruiser. Also present at the scene were Pinellas Park police officer, Joseph Waulk; PCSO Deputy, Stephanie Archer; the juvenile's mother, Laura Hearn; and Michelle Paver.

10. Upon Ingold's arrival at the scene, Deputy Reed conveyed to him the events that had occurred relative to the incident involving the juvenile. Ingold discussed with Deputy Reed the elements of a night prowling offense and advised Deputy Reed to arrest the juvenile for night prowling. Deputy Reed further indicated to Ingold that while interviewing the juvenile, he had come in contact with two women. According to Deputy Reed, one of the women was the juvenile's mother and the other woman had introduced herself to Deputy Reed as "Mrs. Robert Paver." Ingold recognized the woman as Michelle Paver, the wife of Robert Paver.

11. During this conversation Deputy Reed indicated to Ingold that he suspected that "something" was going on between the juvenile and Mrs. Paver; that Mrs. Paver had claimed that she was the juvenile's “ROR” (release on recognizance) officer or had some type of custodial obligation or arrangement with respect to the juvenile and wanted him released to her; and that he believed Mrs. Paver was trying to intimidate him and influence the

    investigation by identifying herself as the wife of Robert Paver, president of the FOP.

12. Based upon Deputy Reed's account of the events that had occurred, Ingold told Deputy Reed to put the information in a report and forward it to the PCSO's Crimes Against Children (CAC) Unit. The CAC Unit handles cases involving crimes perpetrated against juveniles, including crimes which involve sex between adults and juveniles.

13. During his conversation with Deputy Reed, Ingold volunteered pertinent information about the Pavers including the fact that there was a pending divorce between the Pavers. Shortly after being called to the scene, Ingold also revealed information regarding the Pavers to Sergeant Ferdon. Specifically, Ingold told him about the Pavers' pending divorce and that, according to Mr. Paver, Michelle Paver had been observed one evening being out with a juvenile.

14. After leaving the scene of the incident, Ingold drove north on 49th Street until he reached the PCSO's Technical Services Building. While driving to this facility, Ingold attempted to telephone Michelle Paver's estranged husband, Robert Paver. Ingold first attempted to reach Mr. Paver by calling him on his home telephone. After receiving no answer, Ingold left a message on the answering machine, "Pick it up." Ingold next attempted to reach Mr. Paver by calling his pager number.

    Finally, Ingold called Mr. Paver's house again, and after receiving no answer, left a message asking him to call Ingold.

15. Ingold testified that the reason he called Mr. Paver was to obtain information on the ROR status of Mrs. Paver with regard to the juvenile and to have Mr. Paver to instruct his wife to "knock it off" with regard to her attempting to obstruct justice. The ROR status or custodial status of the juvenile in no way effected Ingold’s direction to Deputy Reed to arrest the juvenile and take him to jail.

16. Shortly after Ingold left the scene, Sergeant Scheffer, Deputy Reed’s supervisor, arrived on the scene and assumed supervisory responsibilities with respect to the investigation. Deputy Reed took the juvenile to jail, but officials at the jail would not accept him.

17. After Ingold's three unsuccessful attempts to contact Mr. Paver, Deputy Reed called Sergeant Ingold on the radio, saying that he needed to talk to him. Ingold agreed to meet Deputy Reed at a Shell station on the corner of 49th Street and Ulmerton Road in Largo. When they met at the Shell station shortly thereafter, Deputy Reed indicated to Ingold that the juvenile had told him that he had been having sexual intercourse with Michelle Paver.

18. During the course of the conversation between Ingold and Deputy Reed at the Shell station, Mr. Paver called Ingold on Ingold's PCSO cellular telephone. Ingold advised Mr. Paver that he was busy and would have to call him back.

19. Ingold then advised Deputy Reed to conduct a thorough interview of the juvenile and "to work this back through your sergeant."

20. After meeting with Deputy Reed at the Shell station, Ingold received another call from Mr. Paver. During that conversation, Ingold informed Mr. Paver that Michelle Paver had been present at the time and location where a juvenile was arrested. Moreover, Ingold inquired as to whether Mrs. Paver had ROR status with regard to the juvenile and also advised Mr. Paver that Mrs. Paver was "obstructing justice" by using her husband's name and/or his association with the FOP. With regard to the inquiry regarding Michelle Paver's ROR status, Mr. Paver responded that "you know as much as I do." After failing to obtain this information from Mr. Paver, Ingold made no other attempts to acquire information about Mrs. Paver’s ROR status.

21. Because of the suspicion of a possible sex crime involving Mrs. Paver and the juvenile, the PCSO's Crimes Against Children (CAC) Unit became involved in the case. Although first contacted about the case on November 20, 1994, the CAC did not begin its investigation until November 21, 1994, because the case failed to meet the criteria for immediate attention. Sergeant

    Stefanie Campbell of CAC received the case and also assigned Deputy Lori Fagan of that unit to the case.

22. As part of the CAC Unit investigation, a decision was made to interview Ingold. Sergeant Campbell contacted Ingold and requested that he come in for an interview on November 23, 1994. In order to appear at the interview as requested, Ingold changed a previously scheduled commitment. The interview was conducted on November 23, 1994, by Sergeant Campbell and was attended by Deputy Fagan, who took notes during the interview. The meeting during which the interview was conducted lasted between forty- five minutes and one hour. Other than Deputy Fagan's notes, the meeting was not recorded. Deputy Fagan did not testify at hearing and her notes were not offered into evidence.

23. The interview consisted of Sergeant Campbell asking questions to Sergeant Ingold. Ingold responded to all questions that were asked of him. At the conclusion of her questioning, Sergeant Campbell asked Ingold if he wanted to add anything to what he had already stated. Ingold did not have any other information to add to the interview.

24. During the course of their friendship, Robert Paver had discussed with Ingold various concerns he had regarding Michelle Paver's conduct. Many of Mr. Paver's concerns that were shared with Ingold during the course of their friendship involved Michelle Paver's relationship with students that she taught and did not necessarily focus on one student.

25. Prior to CAC interview, Mr. Paver had advised and expressed concern to Ingold about the following: (1) Mrs. Paver's having allowed a juvenile to spend the night at her residence; (2) Mrs. Paver's seeking some type of custodial arrangement regarding a child; (3) Mrs. Paver's socializing and spending a lot of time with one of her students could put her in a position where the student could make allegations against her;

    (4) Mrs. Paver's having been observed by a St. Petersburg Beach police officer with a male, who she later revealed to Mr. Paver was one of her students; and (5) the amount of money Mrs. Paver was spending on her students.

26. During the CAC interview, Sergeant Campbell asked Ingold about his knowledge concerning Mrs. Paver's being followed by a private investigator. Ingold was not aware at the time of the CAC interview that a private investigator had been retained to follow Mrs. Paver. Therefore, any questions regarding his knowledge about a private investigator following Mrs. Paver could not be answered by Ingold. Although at the time of the interview Ingold had been informed by Mr. Paver that Mrs. Paver had been observed on the beach by a police officer, he did not connect this situation to a question from Sergeant Campbell about a private investigator. Ingold did, however, disclose during the CAC interview that Mrs. Paver had been observed on the beach with someone she later identified as one of her students.

27. During the CAC interview, Ingold informed Sergeant Campbell and Deputy Fagan that he had been told that Mrs. Paver had sought some type of custodial status regarding a juvenile.

28. With regard to gifts, although Ingold did not use the term gift, he told the CAC investigators that according to

    Mr. Paver, Michelle Paver spent a lot of time and money on some of her students. Also, Ingold volunteered to CAC investigators that because of the time and money Michelle Paver spent on her students, he and Mr. Paver referred to the students as her "pet projects."

29. Moreover, during the CAC interview, Ingold told the investigators that Mr. Paver had expressed concern that Michelle Paver's socializing and spending a lot of time with one of her students could result in the student's making allegations against her. Ingold did not volunteer to the CAC investigators that Michelle Paver had been seen out with the juvenile arrested on November 20, 1994, prior to that date. However, even though Ingold had been told that Michelle Paver had been previously seen out with someone, it was not established that Ingold, in fact, knew whether that person was the juvenile involved in the November 20, 1994 incident.

30. At some time prior to November 1994, Mr. Paver had indicated to Ingold that one of Mrs. Paver’s students had spent the night at her residence. Ingold had no knowledge of who the student was or the circumstances surrounding this event.

    However, during the interview, Ingold did not volunteer this information to the investigators nor did either of them ask him any questions regarding this matter.

31. Based upon his conduct on November 20, 1994, and his perceived lack of cooperation with CAC investigators during the November 23, 1994 interview, an administrative investigation was commenced against Ingold. During the course of the investigation, sworn statements were taken by the Administrative Investigations Bureau.

32. An investigative report was prepared and presented, without recommendation or conclusion, to Ingold's Chain of Command Board. The head of the Board was Major Quentin Vaughn.

33. The Chain of Command Board considered the evidence, and withdrew a more serious charge against Ingold regarding a lack of truthfulness. However, consistent with the unanimous recommendation of the Chain of Command Board, the Sheriff charged Ingold with violating PCSO rules relating to security of agency business, cooperation, and performance of duty.

34. Pursuant to PCSO General Orders B-15 and C-1, the disciplinary point calculation for Sergeant Ingold was fifty-five

    1. points. The range of discipline for fifty-five (55) points is from a five-day suspension to termination. The Chain of Command Board voted unanimously to recommend a five-day suspension and Sheriff Rice upheld this recommendation.

       CONCLUSIONS OF LAW

       
       

35. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Sections 120.57(1), 120.68(8), Florida Statutes, (1996), and Chapter 89-4O4, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida.

36. Everett Rice is the Sheriff of Pinellas County and is elected to this constitutional office by the citizens of Pinellas County, Florida. Art. VIII, Section 1, Florida Constitution.

37. Ingold, as patrol sergeant employed by the PCSO, is charged with the responsibility of complying with all applicable state laws and PCSO rules, regulations, and operating procedures.

38. Chapter 89-404, Section 6, Laws of Florida, as amended by Chapter 90-395, Section 6, Laws of Florida, authorizes the Sheriff to suspend, dismiss, or demote classified employees for offenses enumerated therein. That section provides in pertinent part the following:

    1. Cause for suspension, dismissal or demotion shall include, but not be limited to: negligence, inefficiency, or inadequate job performance; inability to perform assigned duties; incompetence, dishonesty, insubordination, violation of the provisions of law or rules, regulations and operating procedures of the Office of the Sheriff, conduct unbecoming to a public servant, misconduct or proof and/or admission of use of illegal drugs. . . .

       
       

    2. Listing of causes for suspension, demotion, or dismissal in this section is not intended to be exclusive. The

    Sheriff may, by departmental rule, add to this list of causes for suspension, dismissal or demotion.

    
    

39. Chapter 80-404, Section 2, Laws of Florida, authorizes the Sheriff to adopt rules and regulations as are necessary to implement and administer this section. Pursuant to this authority, PCSO has adopted policies which establish a standard of conduct which must be followed by all employees of the PCSO.

40. In the suspension notice, Ingold is charged with violating rules, regulations and operating procedures of PCSO. Specifically, Petitioner charges Ingold with violating the following PCSO rules:

    Rule C-1, V, B, 9 (Level Four Violation): Security of Agency Business - Members shall not reveal police information outside the agency except as authorized by Florida Statutes, agency policy, or with supervisory approval.

    
    

    Rule C-1, V, C, 2 (Level Three Violation): Cooperation - Members are strictly charged with establishing and maintaining a high degree of cooperation within the Sheriff's office.

    
    

    Rule C-1, V, C, 5b (Level Three Violation): Performance of Duty. All members will be efficient in their assigned duties.

    
    

41. In an administrative proceeding, the burden is on the parties asserting the affirmative and issue. See Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Therefore, to prevail in this proceeding, Petitioner is required to prove the

    charges against the Respondent by a preponderance of the evidence.

42. Petitioner has shown by a preponderance of the evidence that Ingold violated Rule C-1, V, B, 9, Security of Agency Business. That rule prohibits employees of the PCSO from disclosing police information to individuals outside the agency unless such disclosure is authorized by law or rule or approved by a supervisor. In the instant case, Respondent admitted that he initiated contact with FOP attorney Robert Paver and informed him that his estranged wife, Michelle Paver, had been present at a crime scene where a juvenile had been arrested for night prowling and loitering. Ingold further admitted that he advised Mr. Paver that Mrs. Paver had attempted to have the juvenile released to her custody and in doing so had engaged in a possible obstruction of justice by intimidating a PCSO deputy at the crime scene.

43. According to Ingold's testimony, he called Mr. Paver to determine if Michelle Paver had ROR status as to the juvenile and to request that Mr. Paver to do something to stop Mrs. Paver from using her husband's name to intimidate the PCSO deputy. Notwithstanding his rationale for doing so, Respondent's disclosure of official agency business to Mr. Paver was not authorized by law or rule, and did not have supervisory approval.

44. Respondent's disclosures to the FOP attorney were not only unauthorized, but were also unjustified. Despite Ingold's

    statement that his call to Robert Paver was made to investigate the ROR status of Michelle Paver, he admitted that such information did not affect his direction to Deputy Reed to arrest the juvenile and take him to jail. In fact, Ingold's call to Mr. Paver was made after he claimed to be off the case and after he gave directions to Deputy Reed to arrest the juvenile and take him to jail.

45. Given Ingold's own admission and the evidence adduced at hearing, Petitioner proved that Respondent violated PCSO Rule C-1, V, B, 9 and, thereby, engaged in conduct unbecoming a public employee.

46. Petitioner has failed to meet its burden with regard to the allegation that Respondent violated Rule C-1, V, C, 2, relating to cooperation. According to that policy, members of the PCSO are "charged with establishing and maintaining a high degree of cooperation within the Sheriff's Office."

47. Contrary to Petitioner's assertions, the evidence failed to establish that Ingold failed to cooperate with the CAC Unit by not disclosing certain information about Michelle Paver and the juvenile arrested on November 20, 1994, that might be pertinent to a sex crime investigation. The evidence established that Ingold answered all questions asked of him to the best of his knowledge. The information which Petitioner alleges Ingold should have volunteered to the CAC Unit, erroneously assumes that he knew that the juvenile arrested had been the subject of

    Mr. Paver's conversations with Ingold regarding his concerns with Mrs. Paver's relationships with her students. Having failed to make such a showing, Petitioner has failed to prove that Ingold violated PCSO Rule C-1, III, C, 2.

48. Petitioner has proven by a preponderance of the evidence that Respondent violated Rule C-1, III, C, 5b, relating to performance of duty. That rule requires all members of the PCSO to be efficient in their assigned duties. With regard to his instructions and directions to Deputy Reed, Ingold complied with this rule. However, as to Mrs. Paver's obstructionist behavior, Ingold did nothing to address or resolve her behavior while he was at the scene. Ingold's inaction in this regard constitutes a violation of PCSO Rule C-1, III, C, 5b.

49. The rules and regulations of the PCSO are divided into five categories ranging from Level One to Level Five, with Level Five violations resulting in the most serious discipline. A violation of PCSO Rule C-1, III, PCSO Policy C-1, V, B, 9, is classified as a Level Four offense and is assigned thirty points. A violation of PCSO Rule C-1, III, C, 5b is a Level Three offense and is assigned fifteen points.

50. The disciplinary guidelines established by the PCSO set forth a range of penalties for violations of PCSO rules. Based on the point total of forty-five for the offenses committed by Ingold, discipline may range from a three day suspension to a fifteen day suspension. Furthermore, a supervisor may be demoted

as part of the disciplinary process. In this case, a three day suspension is an appropriate penalty and is consistent with prior disciplinary actions taken by the PCSO in similar situations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Everett S. Rice, Pinellas County Florida, enter a final order (1) finding that Respondent Timothy Ingold violated PCSO Rules C-1, V, B, 9 and C-1,V C, 5b; (2) dismissing the charge that Respondent Ingold violated PCSO Rule C-1, V, C, 2; and (3) reducing Respondent's five-day suspension without pay to a three day suspension without pay.

DONE and ENTERED this 23rd day of June, 1997, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1997.

COPIES FURNISHED:

James M. Craig, Esquire

205 Brush Street Post Office Box 1427

Tampa, Florida 33601

Edward D. Foreman, Esquire Suite 300

100 Second Avenue North

St. Petersburg Florida 33701

William Repper, Chairperson Pinellas County Sheriff’s

Civil Service Board Post Office Box 539

Clearwater, Florida 34617

Jean H. Kwall, Esquire

Pinellas County Sheriff’s Office Post Office Drawer 2500

Largo, Florida 34649-2500

B. Norris Rickey, Esquire

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen 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: 96-000020

Orders for Case No: 96-000020