STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LARRY JONES,
Petitioner,
vs.
CITY OF BUNNELL,
Respondent.
)
)
)
)
) Case No. 04-1761
)
)
)
)
)
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was conducted in this case on October 19, 2004, in Bunnell, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: David Glasser, Esquire
Glasser and Handel Suite 200, Box N
150 South Palmetto Avenue Daytona Beach, Florida 32114
For Respondent: James A. Scott, Esquire
4440 North Oceanshore Boulevard Palm Coast, Florida 32137
STATEMENT OF THE ISSUES
Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner.
Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
PRELIMINARY STATEMENT
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on or about March 1, 2002, and an Amended Charge on or about April 5, 2002, each time on the basis of racial discrimination, which allegedly occurred during a June 25, 2001, public vote of the Board of County Commissioners of the City of Bunnell, Florida. On or about April 9, 2004, the Florida Commission on Human Relations entered a "Determination: No Jurisdiction," on the basis that the Commission did not have jurisdiction "because there is no employer/employee relationship between the complainant and the City of Bunnell, Respondent."
On or about May 19, 2004, Petitioner filed a Petition for Relief, and the Florida Commission on Human Relations referred the case to the Division of Administrative Hearings.
At the disputed-fact hearing on October 19, 2004, Petitioner presented the oral testimony of Donna Kearney, Delories Hall, Daisy Mae Henry, and James Manfre, and testified on his own behalf. Petitioner's Exhibits P-1 through P-3 were admitted in evidence. Respondent presented the oral testimony
of Flynn Edmonson and Paul Fell, and had Respondent's Exhibits R-1 through R-5 admitted in evidence.
At the close of hearing, Respondent agreed to provide Petitioner a copy of Exhibit R-5, an audio tape, immediately after the hearing.
A Transcript was filed on November 3, 2004. A Post-hearing Order was entered on November 5, 2004.
On November 17, 2004, Petitioner's Unopposed Motion for Enlargement of Time for Petitioner to File Proposed Recommended Order was filed. On December 14, 2004, Petitioner filed a letter-motion requesting that the undersigned provide him a copy of Exhibit R-5, because Respondent had not provided it. On December 21, 2004, Petitioner's Second Unopposed Motion for Enlargement of Time to File Petitioner's Proposed Recommended Order was filed. Each extension was granted. On January 21, 2005, an Order was entered by the undersigned, memorializing what had occurred in a telephonic conference call hearing on January 14, 2005, to the following effect:
At that time, the parties were informed that due to the speed at which Exhibit R-5 (City Commission Meeting Minutes) had been recorded, the tape could not either be played or reproduced on any equipment available to the undersigned. Respondent was offered the opportunity to take back R-5 and copy it at normal speed for the ALJ and opposing counsel or to have a transcription made by a certified court reporter.
Respondent orally moved to withdraw Exhibit
R-5 and, without objection, that motion was granted. The original Exhibit R-5 will be returned to Respondent's counsel.
The parties have stipulated to file their proposed recommended orders on January 30, 2005.
On January 31, 2005, Petitioner filed his Proposed Recommended Order. The same day, Respondent moved for an extension of time to file Respondent's proposed recommended order. On February 3, 2005, Respondent filed its Proposed Recommended Order and Closing Argument. On February 11, 2005, Petitioner moved to strike Respondent's Proposed Recommended Order and Closing Argument. On February 25, 2005, Respondent filed a response in opposition thereto. The same day, an Order was entered denying Petitioner's Motion and granting Petitioner seven days in which to file a rebuttal supplement to his Proposed Recommended Order. On March 7, 2005, Petitioner filed his Response to Respondent's Proposed Recommended Order. All filings have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he
was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol.
Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis.
Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department
In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement.
Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits.
At all times material, all of the City police officers were Caucasian.
While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and
Donna Kearney, Administrative Assistant to the City Manager.
At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol."
Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement.
At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida.
The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell.
Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency.
The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City.
On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation.
Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent.
Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans.
At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission.
Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief.
After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/
Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement.
On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting
was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement.
Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City.
Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida."
There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison.
The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank;
capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers.
Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief.
The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies.
Paragraph 12 of the proposed interlocal agreement provided, in pertinent part:
PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel
performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied)
The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11).
Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor."
In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City.
Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department
under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement.
Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice.
Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement.
On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others,
Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already
filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed.
Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police.
Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement.
On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement.
After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed
agreement which had previously been signed by the Sheriff, never took effect.
The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions.
Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison.
Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance.
The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001.
The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson.
Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different.
According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement.
Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with
Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness.
Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001.
Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral
right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later.
A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release.
There were no further negotiations on an interlocal agreement.
Corporal Harrison next served as interim City Police Chief.
In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian.
Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell.
No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement.
Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Chapter 760, and Section 120.57(1), Florida Statutes.
No employer-employee relationship between Petitioner and Respondent City has been proven. See Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979).
Petitioner's assertion that pursuant to Virgo v.
Rivera Beach Associates Ltd., 301 F.3d 1350 (11th Cir. 1994), some type of "joint employership" existed between the Sheriff's Department and the City is not reasonable and not accepted.
While Chapter 760, Florida Statutes, prohibits racial discrimination by a potential employer in the hiring process, and prohibits the refusal of a potential employer to hire an applicant on the basis of his or her race, neither of those situations occurred here.
Here, a municipality (the Respondent City) considered whether or not to enter into a contract with an independent contractor (the Sheriff). The independent contractor was the employer of the Petitioner, and Petitioner was to remain an employee of the Sheriff at all times. It was this all-important element of control by the Sheriff that was the basis of the oppositional votes of the two Commissioners who voted against the proposed interlocal agreement. The Commissioners did not want to turn over control of the City Police Department to the Sheriff or to any Sheriff's representative, regardless of race. Petitioner's race as a reason for rejecting the proposed agreement has not been proven.
For the foregoing reasons, it is concluded here, as it was concluded by the Florida Commission on Human Relations in its April 9, 2004, Determination: No Cause, that no employer- employee relationship existed or could have existed between the City and the Petitioner sufficient to create jurisdiction of this case before the Florida Commission on Human Relations, derivatively before the Division of Administrative Hearings.
Moreover, looking at the June 25, 2001, tied vote resulting in rejection of the Sheriff's proposed interlocal agreement, it is concluded that no racial animus by either Commissioner Fell or Commissioner Edmonson has been clearly demonstrated. The most that has been shown is that Edmonson knew some City police officers might harbor animus toward Petitioner on a personal, not a racial, basis.
Assuming arguendo, but not ruling, that Commissioner Edmonson, himself, harbored some racial animus toward African- Americans, Petitioner still cannot prevail. The racially discriminatory motive of only one member of a three-member majority of a five member elected council will not give rise to civil rights liability against the council. See Mason v. Village of El Portal, 240 F.3d 1337 (11th Cir. 2001), where a police officer unsuccessfully sued a village council, pursuant to a federal 1983 action for racial discrimination in the process to reappoint him. In the same context, see Horne v. Russell County Commission, 295 F. Supp. 2d 1289, (M.D. Alabama 2003), in which it was held that existence of an unconstitutional motivation by only one county commissioner is insufficient to impute such a motive to the commission as a whole.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief for lack of jurisdiction.
DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 7th day of June, 2004.
ENDNOTES
1/ Note Finding of Fact 38 that Commissioner Fell ultimately voted against the final draft of the proposed interlocal agreement and Commissioner Henry voted for it.
2/ Note Finding of Fact 38 that Commissioner Fell and Edmonson ultimately voted against the final draft of the proposed interlocal agreement.
3/ Note the remainder of this Finding of Fact that Commissioner Edmonson ultimately voted against the final draft of the proposed interlocal agreement.
COPIES FURNISHED:
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Davis Glasser, Esquire Glasser and Handel Suite 200, Box N
150 South Palmetto Avenue Daytona Beach, Florida 32114
James A. Scott, Esquire
4440 North Oceanshore Boulevard Palm Coast, Florida 32137
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 23, 2005 | Agency Final Order | |
| Jun. 07, 2005 | Recommended Order | A tie vote of the City Commission, which resulted in the defeat of an interlocal agreement, was not sufficient racial animus or connection to the sheriff`s employee, who might be hired if the agreement passed. There is no jurisdiction. |
