STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, )

PINELLAS COUNTY SHERIFF, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0021

)

WILLIAM LONERGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on April 4, 1996 in Clearwater, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 34649-2500 For Respondent: No Appearance.

STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the charging document, and if so, whether he should be terminated as a detention deputy.

PRELIMINARY STATEMENT

On or about May 1, 1995, Petitioner, Everett S. Rice, Sheriff of Pinellas County, (Petitioner) notified Respondent, William Lonergan, that his employment as a detention deputy with the Pinellas County Sheriff's Office was terminated. Petitioner alleged in three counts the basis for Respondent's termination.

Specifically, it was alleged that Respondent was guilty of conduct unbecoming a public servant; inadequate job performance; misconduct; and violating provisions of law or rules and regulations and operating procedures of the Pinellas County Sheriff's Office. Respondent timely requested a formal hearing. On January 2, 1996, the matter was referred to the Division of Administrative Hearings and this proceeding followed.

At hearing, Petitioner presented the testimony of three witnesses and introduced two exhibits into evidence. Petitioner requested and the Hearing Officer agreed to take official recognition of the laws in effect at the time the alleged incidents occurred. Respondent failed to appear at hearing and no evidence was presented on his behalf.

The proceeding was recorded, but not transcribed. Petitioner timely filed proposed findings of fact and conclusions of law. No post-hearing proposal was filed by Respondent.

Explicit rulings on the proposed findings of fact contained in Petitioner's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 96-0021.

FINDINGS OF FACT

1. At all times material to this case, Respondent, William Lonergan, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee.

   
   

2. Respondent's duties as an employee of the Pinellas County Sheriff's Office included supervision of persons detained in or sentenced to the Pinellas County Jail. The responsibility of supervising inmates was required to be done in a manner consistent with state law and the rules and regulations of the Pinellas County Sheriff's Office.

   
   

3. On February 18, 1995, Lonergan was assigned to the Delta Wing of the Pinellas County Jail. This area is a special housing unit for persons with various psychiatric conditions. On this afternoon, Lonergan was supervising trustees/barbers, inmates assigned to provide hair care services to other inmates. These services included providing haircuts to inmates who needed or requested them.

   
   

4. Several days prior to February 18, 1995, Cintron, an inmate assigned to the Delta Wing, requested a haircut because he had an upcoming court appearance. On the afternoon of February 18, 1995, Cintron was escorted out of his cell in handcuffs and shackles to the area where he was to get his haircut. Cintron remained in handcuffs and shackles while his hair was being cut due to his "red dot status." This status designation indicated Cintron posed a danger to staff.

   
   

5. Deputy Troy Spencer, a detention deputy employed by the Pinellas County Sheriff's Office, was on duty and in the housing pod approximately twenty (20) feet from where inmate haircuts were given. Deputy Spencer observed two trustees/barbers cutting Cintron's hair. However, after Cintron's hair was cut by the trustees, Respondent Lonergan used the clipping shears and appeared to be cutting something into the back of Cintron's head. During the time Cintron's hair was being cut, Respondent Lonergan and the two trustees were laughing and generally in a good mood.

   
   

6. After the haircut was complete, Cintron walked back to his assigned housing pod in the Delta Wing where Deputy Spencer was located. At that time Deputy Spencer observed that the words "FUCK BOY" had been cut into the back of Cintron's head.

   
   

7. Upon seeing these words cut into Cintron's head, Deputy Spencer admonished Respondent Lonergan to shave the words off Cintron's head. Respondent followed this directive, but only after taking photographs of Cintron's haircut. The Polaroid camera used by Respondent Lonergan to take the photographs was property of the Pinellas County Sheriff's Office. Respondent Lonergan was neither requested nor directed to take the photographs and they were not used by him for any official purpose.

8. The type of haircut provided to Cintron by Respondent Lonergan failed to conform to acceptable standards of the Pinellas County Sheriff's Office and was a violation of its directive. Furthermore, the haircut was degrading and posed a potential risk to Cintron's safety.

   
   

9. In his sworn statement given on March 27, 1995, Respondent Lonergan denied cutting the offensive words into Cintron's head. According to Respondent Lonergan, he left the hair care area for a few minutes, and upon returning, discovered what the trustees/barbers had done. Respondent Lonergan stated that at that time he observed the words "FUCK BOY" cut into the back of Cintron's head in letters one and one half to two inches high.

   
   

10. Due to his position in the barber chair, Cintron was unable to identify whether the cutting in his head was made by Respondent Lonergan or one of the trustees.

    
    

11. At no time during the investigation or his sworn statement did Respondent express any remorse about the incident involving Cintron. Respondent failed to apprehend the serious nature of the act committed upon Cintron. This is clearly reflected by Lonergan's own words. In his sworn statement, Lonergan said, "It was funny. I laughed. You know, it broke up the monotony of the day." Lonergan went on to say, "It said 'FUCK BOY.' I seen it. I laughed. I mean honestly, it couldn't have fit a better person. But it can't stay on there."

    
    

12. Although Respondent denied cutting the offensive words in Clintron's head, when approached by Deputy Spencer shortly after the haircut was given, Respondent Lonergan never blamed the incident on the trustees/barbers.

    
    

13. Detention personnel such as Respondent are required to be within sight and sound of inmates at all times. Thus, if Respondent Lonergan left the trustees/barbers alone with Cintron for five minutes, such conduct was improper.

    
    

14. This incident is considered an unusual incident. As such, it was incumbent upon Respondent Lonergan as the deputy supervising the trustees/barbers to write a disciplinary report and initiate appropriate action against the inmate who committed this act. Respondent Lonergan never wrote either a disciplinary report on the trustee/barber he believed to be responsible for Cintron's haircut or a report about the incident. In his sworn statement, Respondent Lonergan claimed it was "nothing to be overly concerned about."

    
    

15. Subsequent to Lonergan's termination as a detention deputy, by Final Order dated November 8, 1995, the Criminal Justice Standards and Training Commission revoked his criminal justice certification. The revocation was based on an unrelated incident involving the use of excessive force which occurred prior to February 18, 1995.

    
    

16. Absent criminal justice certification, Respondent Lonergan is ineligible for employment as a detention deputy in Pinellas County or anywhere within the State of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes, and Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida.

18. Petitioner, the Sheriff of Pinellas County, has been designated as the chief correctional officer of the county correctional system. In that capacity, Petitioner is charged with enforcement of state laws and administrative rules concerning the operation of maintenance of county jails, Section 951.061(2), Florida Statutes, and Pinellas County Ordinance 87-49.

    
    

19. Respondent Lonergan, as a classified employee and detention deputy of the Pinellas County Sheriff's Office, is charged with the responsibility of complying with all applicable state laws and regulations, and operating procedures of that office.

    
    

20. Chapter 89-404, 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 the assigned duties, incompetence, dishonesty, insubordination, [violation of the provisions of law or the rules, regulations, and operat- ing procedures of the Office of the Sheriff, conduct unbecoming to a public servant, misconduct], or proof and/or admission of use of illegal drugs.... [Emphasis Supplied]

    2. The 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.

       
       

21. Chapter 89-404, 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, Petitioner has adopted policies which establish a standard of conduct which must be followed by all employees of the Pinellas County Sheriff's Office. Petitioner has also established procedures related to hair care services for inmates.

    
    

22. In the termination notice, Petitioner charges Respondent Lonergan in three counts with violations of Pinellas County Sheriff's Office Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Laws of Florida. Count One alleges that Respondent engaged in conduct unbecoming a public servant; Count Two alleges that Respondent is guilty of inadequate job performance; and Count Three alleges that Respondent is guilty of misconduct. All three counts further allege that Respondent violated provisions of law or the rules, regulations and operating procedures of the Pinellas County Sheriff's Office.

    
    

23. The burden is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, 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, in order to prevail in this proceeding, Petitioner is required to prove the charges against the Respondent by a preponderance of the evidence.

24. Petitioner has met its burden of proof as to Count One. In regard to this count, it was undisputed that Respondent caused a inmate to receive a haircut that was inappropriate and unacceptable. The haircut was given either by Respondent or the trustees/barbers under his supervision. Either of these actions by Respondent constitutes conduct unbecoming a public servant within the meaning of Chapter 89-404, Section 6, Laws of Florida. Furthermore, this action by Respondent violates of the Pinellas County Sheriff's Office Detention and Corrections Bureau Directive, DCB No. 12. That directive provides that detention deputies assigned to supervise inmate workers and inmate work assignments shall instruct such workers that specialized or customized haircuts "will not be permitted, such as engravings, etc."

    
    

25. Petitioner established by a preponderance of the evidence the allegations contained in Count II. Petitioner established that Respondent was responsible for the care, custody, and conduct of trustees/barbers as well as the inmate who was receiving hair care services. Through Respondent Lonergan's overt act or failure to supervise trustee/barbers, the inmate received an inappropriate haircut, which included an obscene word on the back of the inmate's head. Assuming that Respondent's version of the events is true and that the trustee/barbers cut the offensive words on Cintron's head, Respondent is guilty of inadequate job performance within the meaning of Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Laws of Florida.

    
    

26. The remaining allegation in Count Two regarding Respondent's violating administrative rules and Pinellas County Sheriff's Office regulations has been proven. Respondent failed to prepare and submit appropriate incident or disciplinary reports regarding the events of February 18, 1995. Respondent's failure to supervise inmates and to make a complete written report of the incident also violates Rule 33-8.003(1) and (2)(j), Florida Administrative Code. Finally, Respondent's actions or inaction violates Pinellas County Sheriff's Office Policy, C-1, V,A, and 4, which requires all certified personnel, such as Respondent, to take "prompt and effective action within the scope of their duties...whenever required".

    
    

27. With regard to the allegation in Count III, Petitioner has met its burden. In a sworn statement, Respondent admitted that he used a camera owned by the Pinellas County Sheriff's Office and to take photographs of the inmate's haircut. It was established the photographs taken by Respondent were for his personal use and were in no way related to his official duties. Respondent is guilty of misconduct as specified in Chapter 89-404, Section 6, Laws of Florida, as amended by Chapter 90-395, Laws of Florida. This action also violates Pinellas County Sheriff's Office C-1,V,A,and 10, which prohibits employees from converting to their own use any agency property.

    
    

28. The rules and regulations of the Pinellas County Sheriff's Office are divided into five categories ranging from Level 1 to Level 5, "with violations of Level Five, comprising the most serious discipline." Pinellas County Sheriff's Office Policy, C-1, III. The Pinellas County Sheriff's Office Policy C-1,V,A,4, and 10, violated by Respondent are classified as Level 5 offenses and should result in the most serious discipline.

    
    

29. The Criminal Justice Standards and Training Commission is authorized to revoke the criminal justice certification of any correctional office for the reasons enumerated in Section 943.10, Florida Statutes. An individual, such as Respondent, who lacks such certification is ineligible to work as a correctional officer in the State of Florida, Rule 33-8.003(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent, William Lonergan, guilty of the conduct alleged in Counts I, II and III of the charging document and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office.

DONE and ENTERED this 30th day of May, 1996, in Tallahassee, Florida.

CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0021

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Petitioner's proposed findings of fact:

Petitioner's Proposed Findings of Fact are accepted and incorporated except to the extent subordinate or unnecessary.

These Findings were unnumbered and, therefore, a ruling on each paragraph by number was not made.

COPIES FURNISHED:

William Lonergan

5521 Gulfport Boulevard, South St. Petersburg, Florida 33707

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 34649-2500

William Repper, Chairperson Pinellas County Sheriff's

Civil Service Board Post Office Box 539

Clearwater, Florida 34617

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 to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to 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: 96-000021

Orders for Case No: 96-000021