On November 13-14, 1996, a formal administrative hearing was held in this case in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: James M. Craig, Esquire
For Respondent William M. LauBauch Cassaday, Fuchs, 3737 Sixteenth Street North
and Toldeo: St. Petersburg, Florida 33704
For Respondent John E. Tuthill
Smith: 3300 Forty-Ninth Street North St. Petersburg, Florida 33716
Whether Respondents committed the offenses alleged and, if so, whether the penalties imposed were appropriate.
In May and June 1996, Petitioner, Everett Rice, Pinellas County Sheriff, charged Respondents David Cassaday, Joseph Fuchs, Rick Smith, and Rubin Toledo (Respondents) with violating the Pinellas County Sheriff’s Office 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). Specifically, Respondents were charged with (1) engaging in conduct unbecoming a public servant by allowing two prisoners to escape through carelessness or neglect; and (2) failing to perform their duties as required or directed by law, agency rules, policies and procedures, or other lawful orders of a supervisor.
Respondents challenged the charges and the penalties imposed and timely requested a formal hearing. On or about July 12, 1996, and July 30, 1996, respectively, the matters involving Respondent Smith and Respondents Cassady, Fuchs, and Toledo were forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a hearing. By order dated August 2, 1996, the four cases were consolidated. The consolidated cases were scheduled for hearing and this proceeding followed.
Prior to the hearing, the parties stipulated to facts which were accepted and required no proof at hearing. At the hearing, Petitioner presented the testimony of four witnesses and had five
exhibits admitted into evidence. Respondents presented the testimony of six witnesses and each Respondent testified on his own behalf. Respondents offered and had eighteen exhibits admitted into evidence. The record remained open until December 16, 1997, to permit parties to submit late-filed exhibits.
The proceeding was recorded, except for a brief period when unbeknown to technical staff the tape recorder malfunctioned, but not transcribed. At the request of the parties, the time set for filing proposed recommended orders was set for more than ten days after the hearing. Prior to the date set for filing post-hearing submissions, Petitioner and Respondent Smith requested and were granted an extension beyond the time originally scheduled for filing proposed recommended orders.
The Pinellas County Sheriff’s Office (PCSO) operates a jail complex through its Detention Corrections Bureau. The Detention Corrections Bureau is responsible for the care and incarceration of inmates in facilities ranging from minimum to maximum security.
The jail complex operated by the PCSO Detention Bureau is divided into North and South Divisions. Both divisions house felons. The North Division has several separate barracks in which inmates are housed. One of the barracks located in the North Division is Barracks “B.” At all times relevant to this proceeding, Barracks "B" was designated as a medium security
facility. Within Barracks "B" there are six wings: upper left, upper right, lower right, lower left, upper center, and lower center.
Barracks "B" contains a control room in the center of the wings where a control room officer sits. The control room is enclosed by glass, thereby permitting the control room officer to observe the various wings in Barracks "B". To access the wings, gates located at the entrance of each wing must be electronically opened from the control room by the control room officer.
Across from the control room is the day room in the upper left wing, used by the inmates for watching television, socializing, and sometimes sleeping. This day room has a large window that faces the interior corridor of the upper left wing. Spanning the day room window is a nine foot steel bar. Both the day room window and the bar across it are visible from the control room. Additionally, one can see the corridor of the upper left wing from the seat in the control room. However, the degree of visibility may be affected at any given time by the level of lighting and the number of inmates standing in the corridor in front of the day room window.
On March 9, 1996, two inmates, David Pimentel and David Bermuth, escaped through the window of Room 90, upper wing, from Barracks "B", North Division. The escapees were awaiting sentencing on charges of battery on a law enforcement officer, and bank robbery and violation of parole, respectively. The
escapees, along with 71 other felons had been transferred from South Division on February 29, 1996.
Immediately after the escape, the Detention Bureau’s Investigative Unit began an investigation to determine how the escape occurred.
The investigation concluded that the inmates had opened the hinged grating over the window in Room 90 by forcing the bolts which secured the unhinged side from the wall. The stainless steel mesh screen behind the window was then torn and the lower portion of the exterior louvered security window was bent, allowing the inmates to escape through the opening. The investigation also showed that the inmates removed the nine foot steel bar across the window of the day room in the upper left wing of Barracks "B" and used it as a battering ram to tear the mesh screen and to pry open the window.
The nine foot steel bar that was used to effectuate the escape had been bolted to a masonry wall. The investigation revealed that Inmate Bermuth pried the bar loose from the wall over a one to three day period, from March 6 through March 8, 1996. The investigation revealed that Inmate Bermuth removed the bar at 12:45 p.m. on March 8, 1996. The steel bar was replaced into the masonry wall at 9:50 p.m. on March 8, 1996, after being used to pry open the frame and screens.
The investigation concluded that it took approximately an hour and a half for the escapees to pry the window open wide
enough for them to escape through it. Once the window was open, the inmates used sheets as ropes to climb down from the window. Inmates Pimentel and Bermuth were spotted leaving Barracks B between 1:05 a.m. and 1:30 a.m. on the morning of March 9, 1996, but were later captured.
Respondents, Joseph Fuchs, Rick Smith, and Rubin Toldeo, were employed by Petitioner as detention deputies on March 8 and 9, 1996, and were working the third shift, from approximately 12:00 midnight until 8:00 a.m. Respondent Cassaday was employed as a sergeant with the PCSO on March 8 and 9, 1996 and was the immediate supervisor on the third shift for Barracks "B". Deputy Steve Otte was also working on the same dates and the same shift as Respondents. Both Respondents Cassaday and Toledo were off duty on March 6 and 7, 1996.
Respondents Fuchs, Smith, and Toledo, and Deputy Otte were assigned to Barracks "B" on March 8 and 9, 1996, for the third shift. Respondents Fuchs, Smith and Otte were working as floor officers in Barracks “B”. Deputy Toledo was working in the Control Center in Barracks “B”.
As part of his responsibilities as sergeant, Respondent Cassady was assigned to the Main Control and was at that location between 12:00 midnight and 2:00 p.m. during the third shift, which began on March 8, 1996. The Control Room is located on the same compound as Barracks "B", but is in a separate building.
At the beginning of their shifts, deputies working as floor officers are responsible for counting the inmates housed in the Barracks to which they are assigned. Consistent with this responsibility, at approximately 11:50 p.m. on March 8, 1996, Respondents Fuchs and Smith, and Deputy Otte verified the count of inmates in Barracks “B”.
Another responsibility of floor deputies is to make visual checks of the barracks every thirty minutes. Visual checks involved walking in the wings, checking inmates, and making sure that they are okay. After completing each thirty minute check, the deputies were required to initial records indicating that the checks were done.
In addition to making visual checks, floor deputies on the first and second shift were required to make security checks. A security check differs from a visual check in that a security check entails going on the wing and checking the bars, gates, doors, and windows. On March 8 and 9, 1996, PCSO regulations and procedures, did not require that security checks be performed on the third shift because of the danger to deputies in awakening inmates.
The task of visual checks was decided by the floor deputies among themselves. Each floor deputy was to check his previously determined area and the other floor officers or supervisors were not required or expected to check behind the floor deputy.
Deputy Steve Otte agreed to, but did not make his required thirty minute visual check of Barracks “B” at 1:00 a.m. and at 1:30 a.m. on March 9, 1996. Nevertheless, he initialed a check sheet indicating that he had made these mandatory visual checks. The other floor officers relied on Deputy Otte’s representation that he would and, in fact, did make the mandatory visual checks, and were unaware that Deputy Otte failed to make the checks.
Consistent with existing PCSO requirements, neither Respondents nor Deputy Otte, made security checks while working the third shift on March 8-9, 1996.
Respondent Fuchs left Barracks “B” at 12:40 a.m. to escort seven (7) inmates from Main Control to Barracks “B”. He returned to Barracks “B” at approximately 1:05 a.m. with the inmates and was thereafter occupied in obtaining bedding for them at the lower level and locating the incoming inmates within the Barracks "B".
The duties performed by Respondent Fuchs as a floor officer March 8-9, 1996, in Barracks "B" were consistent with the PSCO requirements for that position and did not violate any PCSO rules, regulations, or procedures.
After assisting with the inmate count at the beginning of the shift, Respondent Smith went into the Officer’s Station located in Barracks "B" to review and secure the mail. Shortly after going into the Officer’s Station, Respondent Smith’s attention was diverted by a noise that he heard coming from the inmates. He then left the Officer’s Station, went to the wing where the noise appeared to be coming from and discovered that an inmate assigned to detention in Barracks "B" was complaining of being cold. Respondent Smith went to get the inmate an extra blanket. It took Respondent Smith fifteen to twenty minutes to investigate the matter related to the inmate in detention and to retrieve and deliver the blanket to the inmate.
After furnishing the inmate in detention with an extra blanket, Respondent Smith returned to the Officer’s Station. Once there, he resumed his responsibilities associated with processing the mail and also reviewed various forms to determine whether a sufficient number was available for use by officers on the third shift. After the initial inmate count was complete, except for the time he spent dealing with the concern of the inmate confined to detention, Respondent Smith was in the Officer’s Station from 12:00 a.m. to 1:00 a.m. Between 1:00 a.m. and 1:30 a.m., Respondent Smith assisted in signing out the inmates who worked as kitchen trustees.
The duties performed by Respondent Smith in Barracks "B" on March 8-9, 1996, were consistent with his role as
detention deputy and floor officer and did not violate rules, regulations, or procedures of the PCSO.
Responsibilities of the deputy assigned to the Control Room in Barracks "B" include controlling people coming in and out of the building, documenting, logging and rolling doors.
As Control Room Deputy on the third shift March 8-9, 1996, Deputy Toldeo was occupied between 11:50 p.m. and 2:00 a.m. with filling out paperwork, keeping track of the 200 inmates based in Barracks "B", including the twenty-seven (27) exiting for kitchen duty and the seven (7) entering the barracks, and making sure all equipment was operational. Between 1:00 a.m. and 1:30 a.m., Deputy Toldeo counted the twenty-seven (27) inmates exiting for kitchen duty and seven (7) incoming inmates.
The position of the exiting and entering inmates was to Deputy Toldeo’s right, looking away from the upper left day room. Deputy Toldeo properly opened the roll gates at 1:00 a.m. to allow the inmates assigned to the kitchen to exit the barracks. The roll gates were locked back down after 1:30 a.m.
On the third shift, March 8-9, 1996, Deputy Toledo’s vision was occluded by a mirror effect when looking at the upper left day room due to the lighting conditions and the fact that the day room was nearly dark. Also, his vision was impaired because the upper left hallway was crowded with inmates, some of whom were standing in front of the upper left day room window.
This crowding was because March 8, 1996, was on a Friday, when inmates in Barracks "B" were allowed to stay up until 2:00 a.m.
The duties performed by Respondent Toledo between 11:50
p.m. to 2:00 a.m., on March 8 and 9, 1996, complied with PSCO requirements for a control room officer and violated no rules, regulations, or procedures of the PCSO.
Sergeants normally stay in Main Control during their shifts, attending to payroll, visitors, and incident reports, monitoring vehicles, and spending two to five hours on paperwork.
As the supervising sergeant on May 8-9, 1996, for Barracks "B", Respondent Cassady was in the Control Room, from approximately 11:50 p.m. to 2:00 a.m. While in the Control Room, Respondent Cassaday was filling out payroll; scheduling third shift staff for the upcoming week; verifying overtime, vacation time, and time off; clearing and verifying inmate counts; receiving “work-release” inmates; and was supervising five (5) other facilities on the Compound (Minimum Security Facility I; Minimum Security Facility II; Kitchen; Laundry Building; and Barracks “C” as well as supervising Main Control. Respondent Cassaday was not in Barracks “B” between 11:50 p.m. to 2:00 a.m.
On March 8 and 9, 1996, Respondent Cassaday’s responsibilities were increased because there were fewer officers on duty than usual. Typically, a normal complement of officers at the compound includes a lieutenant shift commander, three sergeants, and from one to three corporals. However, during the
third shift on March 8 and 9, 1996, there were no corporals or lieutenants on duty.
The duties performed by Respondent Cassaday on March 8- 9, 1996, complied with PCSO regulations, policies, and procedures applicable to sergeants.
In investigating the escape of Inmates Bermuth and Pimentel, the PCSO limited its investigation and interviewing to deputies and supervisors working the third shift on March 8 and 9, 1996. Based on the time and steps taken by the inmates to effectuate the escape, the PCSO acknowledged that the other shifts were partially responsible for the escape. However, no deputies or supervisors working the first and second shifts on March 8, 1996, or the days immediately prior to the escape were interviewed, investigated or disciplined.
After the PCSO investigation was completed, the four detention deputies assigned to Barracks “B” third shift on March
8 and 9, 1996, and their supervisor were disciplined because the escape happened on “their watch.” Deputy Cassady received a seven (7) day suspension and forty-five (45) points. Deputies Toldeo and Fuchs each received a four day suspension and forty- five (45) points. Deputies Smith and Otte each received a two- day suspension and forty-five points.
CONCLUSIONS OF LAW
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.
Petitioner, the Sheriff of Pinellas County, is 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 and maintenance of jails in Pinellas County. Section 951.061(2), Florida Statutes, and Pinellas County Ordinance 87-49.
Respondents, as classified employees of the PSCO, are charged with complying with all applicable state laws and rules, and rules, regulations, and operating procedures of the PSCO.
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:
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 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 . . .
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. (Emphasis supplied.)
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 PCSO.
In the termination notice, Petitioner charged Respondent with violating the Pinellas County Sheriffs Office Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida. Specifically, Respondents were found to be in violation of this provision by engaging a conduct unbecoming a public servant and violating provisions of law or the rules, regulations and operating procedures of the PCSO.
Respondents are charged with violating the following rules under General Order C-1:
Rule C1, V, B, 10, e, (050) (Level Four Violation)
10. Improper Conduct by Members of the Agency -
* * *
e. Allowing a prisoner to escape through carelessness or neglect.
Rule C1, V, C, 5, (064) (Level Three Violation)
Performance of Duty - All personnel shall perform their duties as required or directed
by law Agency rules, policies and procedures, or other lawful orders of a supervisor. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.
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.
Petitioner has failed to prove by a preponderance of the evidence that Respondents Cassaday, Fuchs, Smith, and Toledo violated any rules, regulations, and operating procedures of the PCSO or engaged in conduct unbecoming a public servant as proscribed in Chapter 90-395, Section 6, Subsection 4, Laws of Florida. Likewise, Petitioner has failed to meet the required standard of proof with regard to the allegations that Respondents Cassaday, Fuchs, Smith, and Toledo violated (1) Rule C1, V, B, 10, e, (050), by engaging in conduct which allowed prisoners to escape through carelessness or neglect; and (2) Rule C1, V C, 5,
(064) by failing to perform their duties as required or directed by law PCSO rules, policies and procedures, or other lawful orders of a supervisor.
Contrary to Petitioner's assertions, the evidence
adduced at hearing established that prior to the two prisoners escaping, the whereabouts and activities of Respondents Cassaday, Fuchs, Smith, and Toledo were consistent with their required duties. The fact that the escape took place "on their watch" is an insufficient evidentiary basis to find a violation of the statutory and rule provisions. In the instant case, no competent and substantial evidence was adduced at hearing to establish that Respondents Cassaday, Fuchs, Smith, and Toledo engaged in any improper conduct, including such improper conduct that allowed prisoners to escape through carelessness or neglect. Furthermore, the greater weight of evidence established that Respondents Cassaday, Fuchs, Smith and Toledo performed their duties as required or directed by agency rules, policies, and procedures or orders of supervisors.
For the reasons set forth herein, it is concluded that Respondents Cassaday, Fuchs, Smith, and Toledo did not violate the law and rules as alleged.
James M. Craig, Esquire
Jean H. Kwall, Esquire
William M. LauBach, Esquire Executive Director
Policy Benevolent Association, Inc.
St. Petersburg, Florida 33704-1019
B. Norris Rickey, Esquire Pinellas County Attorney's Office
John E. Tuthill
St. Petersburg, Florida 33710
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.
