STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, as Pinellas ) County Sheriff, )

)

Petitioner, )

)

vs. ) Case No. 98-2562

)

GINA HUBBARD, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 24, 1998, a formal administrative hearing was held in this case in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonard J. Dietzen, III, Esquire

Powers, Quaschnick, Tischler, Evans & Dietzen

Post Office Box 12186 Tallahassee, Florida 32317-2186

For Respondent: Robert W. Pope, Esquire

2037 First Avenue, North

St. Petersburg, Florida 33713 STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

By inter-office memorandum dated May 19, 1998, Petitioner, Everett S. Rice, Pinellas County Sheriff (Petitioner), notified Respondent, Gina Hubbard (Respondent), that the Chain of Command

Discipline Board determined that she had violated 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 rules of the Pinellas County Sheriff's Office (PCSO).

Specifically, Respondent was charged with engaging in conduct unbecoming a public servant and violating Pinellas County Sheriff's Office rules relating to obedience to laws and ordinances and to standard of conduct. Based on these charges, Petitioner notified Respondent that she would be terminated.

Respondent challenged the charges and the penalty imposed and timely requested a formal hearing. On June 8, 1998, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the final hearing. Pursuant to the Notice of Hearing issued June 24, 1998, the final hearing was set for September 15, 1998. Prior to the scheduled hearing date, Petitioner filed an Emergency Motion for Continuance of Final Hearing. The Motion was granted and the hearing was conducted as noticed in the Second Notice of Hearing.

At the commencement of the hearing, Petitioner's Motion to Take Official Recognition filed on November 16, 1998, and Motion in Limine filed on November 23, 1998, were granted. At the hearing, Petitioner called three witnesses: Officer Conrad Trezza, Pinellas County Police Department; Captain Dan Wiggins, Pinellas County Sheriff's Office; and, Chief Deputy James Franklin Coats, Pinellas County Sheriff's Office. Petitioner

offered and had twenty-one exhibits received into evidence. Respondent offered and had one exhibit received into evidence but called no witnesses. A transcript of the proceeding was filed on December 3, 1998. Both parties filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida.

2. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998.

3. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence.

4. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard

a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997.

1. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent

   was placed on four years probation and prohibited from carrying a firearm.

2. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation.

   As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses.

   Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct.

3. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment.

4. Specifically, Respondent is charged was violating the following PCSO rules:

   Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation);

   
   

   Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation).

   
   

5. Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination.

6. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law.

7. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.

   CONCLUSIONS OF LAW

   
   

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

1. Petitioner, as a sworn detention deputy with the PCSO, is charged with the responsibility of complying with all applicable state laws, regulations, and operating procedures of that office.

2. 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 part the following.

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

      
      

3. 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, Respondent has adopted rules, regulations, and policies establishing the standard of conduct, which must be followed by all employees of the PCSO. Among the rules and regulations adopted by Petitioner pursuant to this authority are the following:

   PCSO Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation);

   
   

   PCSO Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation).

   
   

4. In an administrative proceeding, the burden is on the party asserting the affirmative of an issue. Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. 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 Respondent by a preponderance of the evidence. In this case, Petitioner has met his burden.

5. The undisputed evidence adduced at hearing established that Respondent violated the rules as alleged and that she committed the underlying offense which resulted in these rule violations.

6. Moreover, the undisputed evidence also established that the Sheriff's Office has a policy to refuse to hire any applicant and to terminate any employee who is on probation for a felony offense.

7. Although termination is the most severe penalty for the cumulative point totals for offenses committed by Respondent, it is within the prescribed disciplinary range and is consistent with the long-standing policy of the PCSO.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO.

DONE AND ENTERED this 2nd day of February, 1999, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1999.

COPIES FURNISHED:

Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler,

Evans & Dietzen Post Office Box 12186

Tallahassee, Florida 32317-2186

Robert W. Pope, Esquire 2037 First Avenue, North

St. Petersburg, Florida 33713 Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 33779-2500

B. Norris Rickey

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

William Repper, Chairperson Pinellas County Sheriff's Civil

Service Board Post Office Box 539

Clearwater, Florida 33757

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: 98-002562

Orders for Case No: 98-002562