STEVEN D. MERRYDAY, District Judge.
The United States' complaint was filed on July 24, 1980.
Featuring the signatures (in 1980, still pen and ink) of Attorney General Benjamin Civiletti and Assistant Attorney General Drew H. Days, III, the original complaint sues Pinellas County, Florida; the five County Commissioners of Pinellas County; the Chairman of the Personnel Board of Pinellas County; William T. Roberts, the Sheriff of Pinellas County; Sanford Jasper, the Tax Collector of Pinellas County; and even Fred Marquis, the Interim County Administrator. The complaint alleges that the defendants had violated a formidable array of federal statutes and infringed sundry constitutional rights:
(Doc. 41-1 at pg. 1, ¶ 1) With an alacrity that evidences some untold tale lurking behind these opaque proceedings, the County Attorney on the same day — July 24, 1980 — answered on behalf of all defendants (apparently no service of process occurred and no conflict of interest was detected among the defendants, each of whom was represented by the Pinellas County attorney).
About a month later, the parties stipulated to an amended complaint, designed by the plaintiffs "to give this court jurisdiction over all of the persons who have agreed to the Consent Agreement in settlement of this action." The amended complaint joined the Personnel Director, the Pinellas County Personnel Board, the Clerk of the Circuit Court, the Property Appraiser, and the Supervisor of Elections.
Like the original complaint, the amended complaint alleges that the defendants (the allegations are directed collectively at "the defendants") "discriminate against women, Spanish-surnamed Americans and blacks with respect to recruitment, hiring, assignment, and promotional opportunities within all the agencies and departments of Pinellas County." (Doc. 41-5 at 5, ¶ 17) Further, the amended complaint alleges that after an investigation, conducted with notice to the defendants, the United States discovered that "[t]he defendants and their officials have failed and refused to eliminate the effects of their past discriminatory policies and practices" and that "[u]nless restrained by order of this Court, the defendants and their officials will continue to pursue policies and practices the same as or similar to those alleged in this complaint." (Doc. 41-5 at 5, ¶ 20)
Soon after the amended complaint, Judge Wm. Terrell Hodges conducted a "status conference" at least in part because a review of the parties' submissions prompted a question about "whether, in the absence of a judicial determination of past discrimination, present employees of the Defendant County who are directly affected as a class by the provisions of the [parties' proposed consent] agreement, should be given notice and an opportunity to be heard." (Doc. 41-7, Att. G, at 1) Judge Hodges ordered the parties to brief the question.
Instead of submitting briefs directed to the question Judge Hodges identified, the parties submitted a stipulated consent agreement (Doc. 41-8, Att. H) that, among other changes, amended the proposed consent agreement to "reserve" the question of "job classification" and certain "promotional issues." The plaintiff and the defendants each submitted a brief (Doc. 41-9, Att. I, and Doc. 41-10, Att. J, respectively) in support of adoption of the modified consent agreement. The plaintiff's brief included citations to authority and legal argument, but the defendants' brief comprised three paragraphs, only one of which, the second paragraph, comprising one sentence, stated anything substantive:
On December 11, 1980, and by an order that notes, "The consent agreement expressly stated, however, that it did not constitute an admission by the Defendants of any violation of law" (Doc. 41-11, Att. K), Judge Hodges approved the amended consent agreement "as an enforceable decree of the Court." The fourteen-page (plus exhibits) consent agreement includes in paragraph 4 a specific statement of objectives:
The consent agreement remained in effect when the 1980 figures became available, but the record reveals no effort — then or now — to effect the agreed "modification" mentioned in paragraph 4. Apparently, neither party proposed anything — then or now.
The core of the present dispute resides in paragraphs 20 and 21 of the consent agreement, the paragraphs that govern "records" and that require the retention of certain records by the Sheriff and the disclosure of those records on DOJ's request, if requested "not so frequently as to be burdensome":
Paragraph 24 of the consent agreement explicitly states the parties' expectation for the implementation and termination of the consent agreement:
The docket remained empty for thirty-three years, from February 20, 1981, until May 29, 2014, when the parties moved (Doc. 18) "for an order partially dissolving the Consent Agreement . . . to release from the Agreement Pinellas County, its officials, and its hiring authorities," except for the Sheriff of Pinellas County, who "would continue to be bound by the terms of the Agreement." The motion states that after an investigation the "United States has determined that the alleged pattern-or-practice violations of Title VII by Pinellas County that the Agreement sought to remedy have been addressed to the extent practicable" and that "Pinellas County has cooperated in good faith with information requests sent by the United States . . . ."
After a hearing, the magistrate judge recommended (Doc. 26) granting the motion and dissolving the agreement "as it relates to Pinellas County," except for the Sheriff. The magistrate judge's report (Doc. 26 at 2) notes that the Sheriff "objects to the statement that it will remain bound to the consent agreement." Without objection by the plaintiff or the defendants, the partial dissolution was granted on July 16, 2014, "as it relates to Pinellas County." The action was again administratively closed. (Doc. 27)
On January 5, 2015, the United States sent to the Sheriff a "Request for Information" (Doc. 29-15), which the United States designated an "RFI" and which comprised twenty-two separately numbered paragraphs (although paragraph 7 includes eight subparagraphs) describing the information that the United States requested. (The consent decree contains only eight paragraphs [Doc. 17-2 at pp. 11-12] describing the information the Sheriff must retain and disclose.)
Additionally, claiming that "the spirit of the Consent Agreement . . . supports such communication," the United States in the January 5, 2015 letter requests to "speak with PCSO personnel with knowledge of particular policies and practices not only to learn additional information, but also to explain in more detail our concerns and provide the PCSO an opportunity to address those concerns." The consent agreement includes nothing about permitting the United States to directly interview the Sheriff's employees.
Further, the United States' January 5, 2015 letter states that, although paragraph 21 of the consent agreement requires the Sheriff to provide specified records semi-annually, "according to [the United States'] records, the PCSO has not submitted such reports since 2008 . . . therefore, we are seeking some of this missing information through the RFIs below." Another letter (Doc. 29-19 at Exhibit R) from the United States on February 5, 2015, further presses and elaborates the same request.
On March 11, 2015, the Sheriff responded (Doc. 29-20) with a thirty-two page memorandum that explains the status of his work force and hiring practices and that emphasizes the distinction between detention and law enforcement deputies. On May 21, 2015, the United States replied with a nine-page letter (Doc. 29-6) that contains a litany of objections to the form and content of the Sheriff's disclosure of information, that requests an array of additional information, and that begins with a paragraph that illustrates the sharp deterioration in relations between the United States and the Sheriff:
Although the Sheriff provided additional information (Doc. 29-24) later in the year, the United States and the Sheriff remained at an impasse on the meaning of, and the continuing vitality of, the consent agreement; the status of the Sheriff's work force and hiring practices; and the sufficiency of the Sheriff's response to requests for information. The United States' December 30, 2015 response to the Sheriff's September 2015 transmittal of additional workforce data concludes:
On March 18, 2016, the Sheriff defended the sufficiency of his earlier disclosures of information but renewed his objection to what the Sheriff perceived as the United States' escalating requests for information outside the bounds of the consent agreement and the United States attempt to convert the records retention and disclosure requirements of the consent agreement into an amorphous form of perpetual and unbounded discovery, including "DOJ's request for explanations, clarifications, interrogatories, and interviews." (Doc. 29-25 at 233)
As explained earlier, the docket in this action contains nothing for thirty-three years — from February 20, 1981 until May 29, 2014. Fourteen entries appear during May, June, and July of 2014, as a result of which the consent agreement was dissolved by stipulation as to each Pinellas County defendant, except the Sheriff.
But the unquiet corpse of this action stirred again on November 9, 2016, the day after the presidential election of 2016. On November 9, 2016, stating that the Sheriff "flatly refuses" to comply with the consent agreement, the United States moved (Doc. 28) to re-open the case and moved (Doc. 29) for an order requiring the Sheriff to show cause why the court should not find the Sheriff in contempt. The motion alleges that paragraphs 20 and 21 of the consent agreement "obligate [the Sheriff] to maintain particular records and to report information to the United States, both proactively and in response to the United States' requests for documents" but that "in defiance of these paragraphs" the Sheriff "has refused to respond, in part or in whole, to many of the United States January 5, 2015 document requests." (Doc. 29 at 1-2) The United States' motion includes a lengthy history of the parties' intermittent but difficult relations. The narrative is unverified, either by affidavit or otherwise, and contested.
On May 15, 2017, the Sheriff responded (Doc. 32) that "[o]ver the years, [the] Sheriff has provided the records and documentation the United States has requested" in the RFIs but that, "although these RFIs clearly indicate it was a request for documents, the overwhelming majority of these 22 (excluding subparts) RFIs were questions and requests for explanations, clarifications, analysis, and descriptions of Sheriff's selection, hiring, recruitment, and policies and procedures." (Doc. 32 at 4) Further, in the response, the Sheriff insists that "nearly every single `deficiency' [about which the United States complains] was a request for clarifications, descriptions, dates, processes, and explanations." Finally, the Sheriff concludes that the records about the "non-sworn workforce" were "uneventful and easily understood by the United States" but that the records about the "sworn workforce," that is, the "hiring of law enforcement deputies and detention deputies," were a source of dispute between the parties.
Acknowledging "the threshold question of the continued vitality of the consent decree after more than thirty-five years of inactivity," a May 18, 2017 order re-opens the action "only to the extent that the Sheriff may move . . . to dissolve the consent agreement, and the United States may respond within fourteen days after the Sheriff's motion." (Doc. 33) On June 9, 2017, the Sheriff moved (Doc. 34) to dissolve the consent agreement, the United States responded (Doc. 36), and the Sheriff replied (Doc. 36). On September 12, 2018, a hearing occurred at which counsel for the United States, Candyce Phoenix, and counsel for the Sheriff, Shannon Lockheart, appeared and argued.
Through his counsel, Ms. Lockheart, at the hearing the Sheriff confirmed that some exchange of information has occurred "throughout the past 38 years on and off." However, the content, frequency, and thoroughness of these irregular disclosures over the years is uncertain because from 1980, when the consent agreement was entered, until 1989, the Sheriff was part of a "unified personnel system" that conducted the disclosure, if any, to the DOJ, for all the Pinellas County defendants. Apparently, a 1989 civil service act created an office of human rights, to which the Sheriff submitted records and which in concert with the county attorney submitted records to DOJ. Although aware of the documents sent to the office of human rights, the Sheriff cannot identify the records disclosed to DOJ. In 2010, the Sheriff became separately represented by counsel and assumed the direct disclosure of documents to DOJ. Ms. Lockheart claims confidently (and, apparently, correctly), "I can tell you exactly what was sent to DOJ — when, where, and how — since 2011."
However, Ms. Lockheart confirms that the documents produced to DOJ are "not even close" to the same each year because the requests from DOJ — outside the "four corners" of the consent agreement — differ from year to year as "the manner in which the Department of Justice would like to conduct their review has changed or evolved." Ms. Lockheart confirms that the documents and other matter provided to DOJ are different from, and exceed, the disclosure required by the consent agreement. Ms. Lockheart described the disclosure as follows:
Ms. Lockheart explains as follows the conclusion of the Sheriff's co-operation with DOJ:
When asked "[H]as the course of conduct between the parties given the [consent] agreement an ongoing vitality," Ms. Lockheart on behalf of the Sheriff candidly stated, "I would answer that `Yes'." In explanation, Ms. Lockheart offered that:
Ms. Phoenix began her presentation for DOJ by adopting Ms. Lockheart's presentation of the parties' course of conduct under the current agreement:
In response to the suggestion that history shows that for thirty-five years "[DOJ] was trying to keep up with the Sheriff's practices and the sheriff was trying to provide the information that was available, then and now" but that, nonetheless, "the [parties'] relations have drifted far away from the provisions of the consent agreement," Ms. Phoenix responded, "I wouldn't disagree with that characterization, Your Honor." Ms. Phoenix explained that — using the information available under the consent agreement — DOJ could not determine whether the "core principles" of the consent agreement are satisfied, that is, whether artificial impediments to equal employment with the Sheriff were removed.
Speaking for the United States, Ms. Phoenix confirmed that "the United States is certainly anxious to bring this to a close" but that the Sheriff's data was insufficient to permit the necessary evaluation. In fact, this telling exchange occurred:
A fair interpretation of the statements by the parties' respective attorneys explains the dilemma presented by the present circumstance: Although neither party can reliably identify the documents and other information provided by the Sheriff and received by the United States during the thirty-plus-year life of the consent agreement, the United States claims persuasively that the information allowed under the consent agreement will not permit the conclusion at which the United States feels compelled to arrive (as the governing issue is framed in 2019 — but not in 1980). On the other hand, the Sheriff claims persuasively that the information provided to the United States already exceeds the requirements of the consent agreement and that the United States currently asks for analyses and interviews neither specified in nor ever contemplated in the consent agreement. Neither party quarrels with the other's conclusion, but each party persists in wanting something the other has opposed.
A court is not established to determine — without standards and as a matter of first instance — who should get what and what requests or responses are fair or useful. In this instance, the business of the court is to determine whether the consent agreement remains enforceable and meaningful and whether the parties are complying with the consent agreement. With that objective in mind, I directed (Doc. 47) the magistrate judge as follows:
The magistrate judge convened the parties to determine what information, if any, was both required by the consent agreement and undisclosed by the Sheriff and what, if anything, the United States demanded that was not required by the consent agreement. The Sheriff asserted that all available documentation required by the consent agreement was provided. The United States agreed, except for "the subparagraphs within paragraph 21" (Doc. 59 at 3), specifically, subparagraphs 21(b), 21(c), and 21(g).
After the hearing, the magistrate judge issued a report and recommendation (Doc. 59) that leads to an obvious, commendable, and final resolution of the current dispute:
(Doc. 59 at 12) Neither the United States nor the Sheriff objects to the report and recommendation.
In response to the invitation from the United States the Sheriff on June 20, 2019, moved (Doc. 60) again to dissolve the consent agreement. The Sheriff's motion remains unopposed. Because, as the United States concedes, the Sheriff has substantially complied with the consent agreement and substantially accomplished the purpose of the consent agreement, the disclosures required by the consent agreement no longer serve any purpose of the United States (or the Sheriff or the public), and the passage of time has rendered obsolete both the consent agreement and the parties' disagreements about the consent agreement, the report and recommendation is ADOPTED, the Sheriff's renewed motion (Doc. 60) is GRANTED, the consent agreement is DISSOLVED, these proceedings are DISMISSED, and the clerk must CLOSE the case.
