The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent as a correctional officer on July 12, 1991, by correctional certificate number 22381, and as a law enforcement officer on September 7, 1994, by law enforcement certificate number 148252. As of the time of the hearing, Respondent maintained both certificates. The Administrative Complaint seeks discipline against both certificates. At the time of the alleged incident, Respondent was employed as a law enforcement officer with the North Bay Village Police Department. In the early morning hours of July 22, 2000, law enforcement officers of the North Bay Village Police Department responded to a possible domestic battery call made by Anabel Rodriguez. One of the first officers to arrive at the residence of Ms. Rodriguez was Steve Brent, with his wife, who was acquainted with Ms. Rodriguez and her boyfriend, Respondent. Officer Brent found Ms. Rodriguez, who had suffered a black eye, very upset and willing to talk only to him. Although she did not identify the person who had struck her, she repeatedly asked, "how could he do this?" Officer Brent walked Ms. Rodriguez to the nearby apartment of Officer Brent and his wife. Officer Brent's wife talked to Ms. Rodriguez and tried to calm her down. In the meantime, Sergeant Hatley, who had remained a short distance from Ms. Rodriguez's apartment in a backup position, observed Respondent leaving the underground parking area of Ms. Rodriguez's apartment complex and chatted with him briefly. As soon as Sergeant Hatley learned that the victim was Ms. Rodriguez, he contacted Respondent and directed him to return to the station. Because Ms. Rodriguez had still not named her assailant, Sergeant Hatley directed that she too be brought to the station. While at the station, Ms. Rodriguez sat with Ms. Brent alone in a report-writing room that adjoined the squad room in which Respondent was present. Although a wall separated the two rooms, the door between them was open. At one point, Ms. Rodriguez joined Respondent in the squad room and spoke with him. Respondent ordered Ms. Rodriguez to look at him, and he told her that her face would heal in a couple of weeks. He told her that this situation involved his job, and he reminded her that their baby, who was one-year-old at the time, required his health insurance. About 15 minutes after speaking with Respondent, Ms. Rodriguez wrote her statement. Upset and hesitant, she repeatedly picked up and put down the pen. After about 20 minutes, she completed her statement, in which she asserted that she had caused her injuries to herself. The same evening, Respondent also gave a statement in which he denied responsibility for Ms. Rodriguez's injuries. The following day, the City of North Bay Village Police Department opened an internal affairs investigation concerning Respondent arising out of the events of the preceding day. During the investigation, the investigator learned that Respondent might have had improper contact with Ms. Rodriguez before she had given her statement. After placing Respondent under oath, the investigator asked him: "OK, uh, at any time during your presence in the North Bay Village Police Department that evening [July 22], did you have any contact, and/or conversation, with Anabel?" Respondent answered, "No." Later in the interview, the investigator asked: "OK, uh, so you at [no] time you had any conversation, or did you make eye contact or anything with Anabel?" Respondent replied, "I saw her." The investigator stated, "OK." Then Respondent added: "I didn't make any verbal contact." The investigator asked: "OK, none whatsoever, no gestures or anything like that?" Respondent replied, "No." The investigator asked: "Did you at any time tell her quote, don't worry, it'll heal in a week or two end quote?" Respondent answered, "No." The investigator asked: "OK, at any time did you say quote, if you do this to me, the baby won't have any insurance, end quote, and quote you know what they do to cops in jail, end quote?" Respondent again answered, "No." While under oath, Respondent repeatedly lied in response to the questions that the investigator asked him. The lies were material and interfered with an internal investigation of Respondent. Lying to protect his job and possibly his correctional and law enforcement certificates, Respondent failed to maintain good moral character.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificates as a law enforcement officer and as a correctional officer. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 14th day of March, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Amador Alvarez 910 East 36th Street Hialeah, Florida 33013
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997). Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer. He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5 Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6 The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless, without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report. According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11 Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who confirmed that the gun was not loaded when he took it from the suspect. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence. Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12 Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13 Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit. It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15 In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator. First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms. Gilbert simply forgot that Officer Leon had asked her that one question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of June, 1999.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles E. Nelson, was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on February 23, 1990, and issued certificate number 99509. Based on what Officer Nelson told a fellow officer, he had previously worked in law enforcement for 20 years in Toledo, Ohio. On December 12, 1992, Sergeant Charles Anthony Wall of the Jacksonville Sheriff's Office and Dale Wayne Vermillion, a reserve police officer, responded to a call, reporting that a man and a woman were fighting near a convenience store. Officer John Michael McKim also responded to the call, in a separate vehicle, to serve as Sergeant Wall's backup. Tommy Goode and Teresa Pickens were found in a wooded area near the convenience store and were arrested for disorderly intoxication. Because Goode and Pickens were arguing with each other, they were placed in separate police cars. Goode was handcuffed and locked in the back of Sergeant Wall's caged police car, while Pickens was placed in Officer McKim's car. While Sergeant Wall was sitting in the driver's seat of his vehicle completing certain paperwork, including an arrest docket, Officer Nelson arrived in a third vehicle. From the back of Sergeant Wall's car, Goode was yelling offensive comments to all of the officers. After Officer Nelson, who is Black, approached the car, Goode included racial epithets, including the word "nigger," in his continuing offensive comments. Officer Nelson responded to Goode's taunting by saying words to the effect: "I'm not like the rest of these people, I don't need my job. I'll come back and get you." Officer Nelson unlocked the back door of Sergeant Wall's car, leaned in, grabbed, choked, and shook Goode. The reserve officer who could see Goode's face during the attack described it as follows: And when Officer Nelson went into the vehicle, I was standing looking in through the window, and Officer Nelson grabbed Mr. Goode around the neck with his hand and was choking him to a point that I had not seen a human's eyes extend out of their eye sockets so far, so he was choking him pretty hard and kind of shaking him back and forth. Transcript p. 24 Because of Officer Nelson's size and strength, Sergeant Wall needed the assistance of Officer McKim to pull him off Goode and out of the car. In the following excerpt of his testimony, Sergeant Wall described his response to Officer Nelson's actions: So I told him, you know, hey, "What are you doing, get off of him," something to that effect. And that didn't work, so I began to try to pull him off, me and Officer McKim. And it took great effort to get him off, and I don't know if I actually -- he let go, or the effort that it took to pull him off that got him off, I just remember that when he came out of the backseat, that he was like a wild man. I mean, I thought at one point he was going to jump on us. Transcript p. 10 Goode had red marks on his neck when Sergeant Wall transported him to jail. The Sheriff's Department initiated both criminal and administrative investigations of Officer Nelson's attack on Goode. Officer Nelson was first reassigned to a desk job and, ultimately, left the department. Officer Sandra M. Pike participated in the internal investigation of the incident by the Sheriff's Office. When she interviewed Officer Nelson, he told Officer Pike that he lost control and that he intended to shut Goode up. The force used by Officer Nelson was unnecessary. Goode was not posing a threat or trying to escape. The conduct of Officer Nelson constitutes a criminal offense and demonstrates a failure to maintain good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement, revoke certificate number 99509, issued on February 23, 1990, to Charles E. Nelson. DONE AND ENTERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Amy J. Bardill, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. . TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-278 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this 5 OM aay ° , 2009. Paula Ford Agency Clerk By U.S. Mail Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Shannon K. Eller Deputy General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, FL 32202 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
The Issue The issue is whether Robert J. Majka, Jr., violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Majka is subject to the Code of Ethics. Mr. Majka, during times pertinent, was Chief of Emergency Services for Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). On February 7, 2006, long after the events involved with this case, he was promoted to the position of Assistant County Manager. As Chief of Emergency Services, Mr. Majka was in charge of the County's corrections program. During times pertinent he employed a staff member named Ann Cahall, whose duties included interacting routinely with the County's privatized corrections provider, CCA. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed County Manager Jonathan A. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Majka, County Manager Mantay, and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Majka's role, in giving that plan effect, was to contact CCA and Maricopa County and determine dates that they could support a visit from persons from Bay County. He contacted Brad Wiggins, the Director of Business Development for CCA, and also talked to the public information officer with the Maricopa County sheriff's office, in order to determine convenient dates. This was Mr. Majka's only involvement with the planning phase of the proposed trip. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances, including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Majka was present during a conversation between the County Manager and County Attorney. The discussion concerned whether Bay County or CCA would fund all or part of the trip. Mr. Majka could not have learned from this discussion that CCA would fund all or part of the trip, and nothing occurred which would have required him to make further inquiry. He specifically heard County Attorney Zimmerman opine during this conversation, that the trip was "legal." Subsequently, Mr. Majka was contacted by a Ms. Rogers in the County Manager's Office. He was directed to go to the County Manager's office to obtain an airline ticket for the trip. He does not recall if he received that information directly from Ms. Rogers or whether it was relayed to him by Ms. Cahall, but it was clear to him that the County Manager was requiring him to participate in the travel. He picked up the ticket as directed. The ticket did not indicate how payment was made. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and television reporter Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Majka's airfare for the entire trip was $1,257. Mr. Majka did not learn that CCA paid for the airfare until three or more years after the trip was completed. Mr. Majka at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Majka, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Majka did not know who paid for the ground transportation. The travelers ate dinner, February 24, 2000, as a group that evening. Someone paid for Mr. Majka's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Majka and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Majka and the other travelers were transported by CCA to a dinner that was paid for by CCA. CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka was not aware of either the cost of the dinner or who paid for it. Mr. Majka and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka learned after checking out from the Marriott, on February 26, 2000, through talking with others, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Majka reasonably believed at that time that it was of a value of more than $100. On Saturday, February 26, 2000, Mr. Majka and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Majka's hotel bill in Phoenix was paid with a credit card issued to County Manager Mantay by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Majka did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Majka did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Majka had a County credit card in his possession but by County policy he was not allowed to charge meals on it. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the travel to Nashville and back to Panama City, and the cost of the hotel in Nashville, totaled more than $100 and Mr. Majka ultimately knew that the cost, when aggregated, was more than $100. Mr. Majka could not have acquired this belief, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Robert J. Majka, Jr. did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire Gary E. Early, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact In the spring of 1980, the City of Hollywood (City) engaged in collective bargaining negotiations with Hollywood Lodge No. 21, Fraternal Order of Police, due to the fact that the existing collective bargaining agreement between those parties was due to expire on September 10, 1980. By letter dated July 11, 1980, the City's personnel director who had conducted its negotiations informed the Public Employees Relations Commission (PERC) that an impasse existed in the contract negotiations and requested an expedited list of special masters. The letter also informed PERC that the International Brotherhood of Police Officers (IBPO) had won a representation election on June 26, 1980, and that an amended certification was anticipated. On July 16, 1980, PERC verified the election results and certified IBPO as exclusive bargaining representative in the police unit which included all sworn police officers and probationary police officers. Excluded were captains, chief, assistant chief, voluntary and reserve officers and clerical employees. (Testimony of Chandler, Martin, Exhibits 6, 15, 49) Despite the declaration of impasse and subsequent appointment of a special master to assist in its resolution, the City and IBPO continued negotiations into September, 1980. Several joint meetings were held with the bargaining representatives of the City's firefighters and civilian employees, whose contracts also were due to expire. The major issue between the parties to these agreements was the question of pay raises. Although the police unit had originally demanded a 25 percent increase for the two-year contract period, and the City had offered only three percent for the period, by late August IBPO had reduced its request to 15 percent for the first year and left the second-year increase open for bargaining. On September 5, 1980, the City offered a total of 15 percent over the two-year period plus payment for hospitalization, but its offer was rejected. (Testimony of Martin, Chandler, Exhibits 16- 20, 22) In September, 1980, there were about 423 total police employees, including 240 police officers. The Patrol Division operated in three shifts , i.e., morning - 8:00 A.M. - 4:00 P.M., afternoon - 4:00 P.M. - Midnight, and the night shift - Midnight - 8:00 A.M. Normally, about 100 police offers in the Patrol Division man these shifts during a one-day period. (Testimony of Martin, Hessler, Stipulation, Exhibit 6) The police department's operating manual concerning sick leave provides that members of the department who are unable to report for duty because of illness or injury shall notify their department one hour prior to the start of the working day. In the six-month period prior to September, 1980, about two to three officers assigned to the Patrol Division "called in" to the department per shift that they were ill and would be unable to work their shifts. (Testimony of Hessler, Exhibit 50) On September 11, 980, a number of Hollywood police officers signed resignations from their city employment which were retained by IBPO officials. Sergeant Frederick B. Lloyd, Jr., President of Local 621, informed the membership at the meeting on that date that bargaining negotiations had been difficult and that resignations might assist the organization in bargaining. He informed the group that it was up to each officer whether he wished to sign the resignation form. Discussions at the meeting centered on the status of contract negotiations and the availability of possible employment with other city police departments. Some 50 or 60 officers attended the meeting and most of them signed the form. It was understood by the officers that the forms were to be hand-carried to the Chief of Police by President Lloyd whenever the latter saw fit to do so. It was further understood that Lloyd would submit the resignations en masse if the City did not meet the IBPO wage demands. The impression was given that the threat of mass resignations was to be a "threat" which would not actually be carried out. Some of the officers signed the resignation forms during the next few days after being approached by representatives of IBPO. One of these officers was informed by Lloyd that he could have his resignation form back whenever he wanted it and that it wouldn't be used except to be "waved" before the City Commission as a show of strength. Lloyd stated to this officer, Eugene Pizzeri, that the City would never accept 200 resignations. (Testimony of Childers, Shoenthal, Nester, Landis, Pizzeri, Doyle, Primeau) At approximately noon on September 12, 1980, Assistant Police Chief Leroy Hessler, who was serving as Acting Chief in the absence of Police Chief Martin, was advised by one of his assistants that 11 police officers had called in sick for the evening shift. Assistant Chief Hessler informed James E. Chandler, the City Manager, of the situation and, at 1:20 P.M., Chandler issued an inter-office memorandum to all employees which read as follows: EFFECTIVE IMMEDIATELY ALL EMPLOYEES ARE DIRECTED TO REPORT TO THEIR REGULARLY SCHEDULED WORK ASSIGNMENTS. FAILURE TO REPORT TO YOUR REGULARLY SCHEDULED WORK ASSIGNMENT WILL RESULT IN IMMEDIATELY TERMINATION. Chandler told Hessler to notify all officers who called in sick that they were subject to termination. Hessler told his captains and lieutenants to read the memorandum to everyone who called in sick. Although Chandler had also informed Hessler to cancel all vacations and time off, and to require those officers calling in sick to report in order that they could have a medical examination, the extent to which such latter instructions were subsequently carried out was not established at the hearing. Kessler directed the captain and lieutenants in charge of the Patrol Division to read the memorandum to everyone calling in sick. Off-duty personnel were requested to report for duty and 12-hour shifts were thereafter maintained by available personnel, including captains and lieutenants. (Testimony of Hessler, Chandler, Walsh, Flaugher, Exhibit 10) On Friday evening, September 12, 1980, the City petitioned the Broward County Circuit Court for a temporary injunction against IBPO Local 621 and officers thereof and other unnamed public employees. (Case No. 80-17915) PERC intervened in the proceeding after being contacted by the City. The Court entered a temporary injunction requiring the defendants to cease and desist from unlawful concerted activity and to return to work forthwith. At the hearing, the Court instructed IBPO President Lloyd to notify all organizational personnel of the terms of the temporary injunction. Accordingly, Lloyd and other representatives notified the membership by telephone and telegram of the injunction and urged personnel to return to duty to avoid being held in contempt of the court Order. Notification took place during the evening of September 12 and on Saturday, September 13, 1980. Additionally, while notifying members, Lloyd picked up radios of officers not reporting to work, pursuant to directions of his superiors, because it had been determined that a "clicking" of hand radios had interfered with the department's routine communications. In addition to the above notification, the court Order was published in a local newspaper on September 15, 1980. There was extensive media coverage of the situation during the period of September 12-15, 1980. (Testimony of Hessler, Chandler, Stipulation, Exhibits 1, 4, 11-13) In the early morning of September 13, City Manager Chandler received a call from Floyd who inquired as to the possibility of members retaining their employment status if they returned to work. Chandler told him in a subsequent telephone call that they would not be fired if he, Lloyd, would assure "labor peace" that morning, but that they would have to be disciplined by a brief suspension. Lloyd thereafter informed Chandler that he had talked to representatives of the fire department organization and that neither would accept such terms. (Testimony of Chandler) On September 13, members of the City fire department did not report in on their assigned shifts and the number of policemen calling in sick had increased. The City Manager considered there to be a potential for an emergency situation as to police and fire protection for the city because the working shifts were smaller than usual and the available men were working longer shifts. However, Acting Chief Hessler did not view the situation as an emergency during the weekend. (Testimony of Chandler, Hessler) On September 13, 1980, the City had its Code Enforcement Officers serve a Motion for Contempt and Notice of Hearing on the absent police officers. On Sunday, September 14, 1980, a hearing was held before the Broward County Circuit Court in Case No. 80-17915, after which the Court Adjudged Local 621 to be in contempt and assessed a fine against it of $5,000. (Testimony of Chandler, Exhibits 1, 14, 21) In spite of the various notifications and court Orders, most of the absent policemen did not report for duty on Saturday or Sunday of the weekend. On Monday, September 15, 1980, approximately 25 our of 33 police sergeants called in sick, in addition to the other absent personnel. Only 8 or 10 members of the bargaining unit were present for duty on that date. Although Acting Chief Hessler was concerned about the possibility of increased criminal incidents and inability to adequately patrol the city, no evidence was presented at the hearing to indicate an inability of the department to protect the populace. (Testimony of Hessler) The Circuit Court in Case No. 80-17915, on September 15, 1980, issued a Contempt Order against the defendants in the injunction proceeding for violating the Court's September 12 Order. The Court made Findings of Fact therein concerning the dramatically increased absences of Hollywood police officers "allegedly due to illness" on September 12-14, 1980 and that a strike, as defined and prohibited by Chapter 447, Florida Statutes, was in progress which had been instigated and supported by IBPO. The Court found Local 621 to be in direct contempt and ordered it to pay a $5,000 fine for each calendar day the strike continued beginning September 13, 1980. Judgment was deferred as to any measures to be taken against the individual "striking police personnel." By Order of the Circuit Court in the same clause on April 24, 1981, it was adjudged that final process issue against Local 621 in the amount of $15,000. (Exhibits 2-3, 5) On Tuesday, September 16, 1980, the bulk of the absent officers had returned to work and the police department operated on a normal staffing basis. Records of the police department show that during the four-day period of September 12-15, 1980, there were 115 sick days reported by the Patrol and Detective Divisions. Such a large number of absences during any four-day period was "unprecedented" in the department. They further reflected the following absences during that period as to the Respondents herein: John Childers - Sept. 13 Sharon Herring - Sept. 13 Phillip Perry - Sept. 15 Charles Shoenthal - Sept. 15 Richard Nester - Sept. 13-15 Henry Landis - Sept. 13-15 Sandra Alterizio - Sept. 13 Thomas Faeth - Sept. 15 Randolph Brown - Sept. 13 William Murphins - Sept. 13-15 Eugene Pizzeri, Jr. - Sept. 15 Kevin Doyle - Sept. 16 (night shift 9/15) Dennis Primeau - Sept. 13-15 Victor Gaston - Sept. 15 Otis Haney - Sept. 16 (night shift 9/15) Lee Tango - Sept. 13-15 James Rabbitt - Sept. 13-15 Deborah Riggerman - Sept. 15 Bertha Samuels - Sept. 15 Dennis Baney - Sept. 15 Randolph Brown was subsequently terminated from his employment with the department, and Bertha Samuels has resigned. (Testimony of Hessler, Locke) On September 18, 1980, the Hollywood City Commission held a public hearing to adopt its budget. This was the last day practicable for the Commission to approve employee pay increases in order to avoid the delay which would be occasioned by renotification of city taxpayers. The Commission voted to adjust the millage rate to include an increase in pay for the Hollywood Police Department of 15 percent the first year and 10 percent the second year. A new collective bargaining agreement was subsequently ratified in November, with the wage provisions retroactive to October 1, 1980. (Testimony of Chandler, Exhibits 23, 51) From the foregoing facts, it is further found that there was a concerted and intentional failure to report for duty during September 12-15, 1980, by a large group of the City's police officers which was designed to influence and induce favorable terms of employment in the form of higher prospective pay raises than previously had been offered by the City. The following findings relate to the evidence adduced by the individual Respondents at the hearing. John Childers - Case No. 81-789 John Childers has been employed as a police officer with the City for seventeen years. In September, 1980, he was assigned to the day shift. He is a member of IBPO. In the afternoon of September 11, 1980, Childers developed a bad headache. Nevertheless, that evening he attended a meeting of his bargaining unit at which he signed a resignation from the police department. He then went home, took aspirin, but his headache got worse. At 11:45 P.M., he called police headquarters to report that he was sick and would be unable to work the next day. He remained in bed on September 12. At 5:15 P.M. of that day, he again called in sick for the following day. In the early morning hours of September 13, while Childers was asleep, Lieutenant Walsh telephoned and told his wife that if her husband did not report for work he could be terminated. She told Walsh that her husband was ill. Childers later received a telephone call from a secretary of IBPO regarding the court injunction and requirement of notification to absent personnel to return to work. Childers told her that he was sick. Childers had planned for some time to commence his regularly scheduled vacation during that weekend. It was due to officially begin on Tuesday, September 16, because Sunday and Monday were his days off. Although his headache continued during Saturday, September 13, he decided not to postpone his out-of- state trip and departed that evening to visit relatives in West Virginia by private automobile. His headaches remained "on and off" during the trip and he was obliged to spend six hours in a motel en route. He arrived at his destination on September 15. He stayed in bed that day due to his headache. During his vacation and on his return home, he suffered intermittently with headaches. Officer Childers has a past history of "cluster" headaches which he treats with aspirin, and which are sometimes incapacitating. He was hospitalized in 1976 complaining of headaches and was diagnosed as having vascular headaches and possible early hypertension. However, the last time he had called in sick for reason of headache was in January, 1980. He also called in sick for that reason on January 11, February 21, and April 2, 1981. Respondent testified at the hearing that he was not in favor of signing the resignation form on September 11, but Sergeant Lloyd had stated that it might help bargaining efforts. Although he was "docked" for two days pay for September 12 and 13, he was reimbursed by the City for September 12. During the course of his career, he has received one reprimand and can retire at age 50 in two years. (Testimony of Respondent, P. Childers, J. Greaney, James Greaney, Reid, Exhibits 8-9) It is found that although Respondent was suffering from a headache during the period September 12-13, 1980, he was not incapacitated to the extent that he could not have reported for duty on September 13. This finding is based on the fact that Respondent attended an organizational meeting on the evening of September 11, at which time he signed a resignation form, and because he was able to commence an extended automobile trip on the evening of September 13. These factors, when considered against the totality of the evidence, lead to the conclusion that Respondent joined with other police officers to absent themselves from duty for the purpose of inducing or influencing a change in the terms and conditions of their employment. Sharon Herring - Case No. 81-830 Sharon Herring has been a police officer with the Hollywood Police Department since February, 1975. In September, 1980, she was assigned to the Patrol Division on the day shift. She is a member of IBPO. She was scheduled for duty on September 12, 1980, and worked her shift on that date. About midnight, she called in sick to the department based on the fact that she was commencing her menstrual period. She had stomach cramps and headaches. At about 3:00 A.M., she received a telephone call from Sergeant Walsh of the police department who informed her that if she was in a "work action," she was subject to dismissal. She informed him that she was ill. Her husband advised her to stay home in bed on the 13th in view of her condition. She did not report for duty on September 13. She would have been willing to perform "light duty" if she had been asked. She was not scheduled for duty on Sunday or Monday, September 14 and 15. She returned to duty on September 16. In October, 1980, she consulted a physician and determined that she had had an ovarian cyst which had eventually dissolved. She had occasionally been required to absent herself from duties in the past as a result of illnesses associated with menstruation. Officer Herring testified at the hearing that she had no knowledge that a "sick out" was taking place in the police department at the time she called in sick on September 12. She is a member of IBPO and attended the meeting on September 11 at which time she signed a resignation form. She intended to resign if the other officers did so. She testified that at that meeting when she heard rumors of an alleged "sick out," she left the meeting so that she would not be associated with such situation. She testified at the hearing that at no time did anyone request that she return to work, and further that she did not participate in an illegal strike. She experienced pain off and on until she consulted her physician in October and he recommended that she be placed on light duty for several weeks. (Testimony of Respondent, D. Herring, Exhibits 25-26) It is found that, although Respondent was experiencing menstrual cramps on September 13th, she was not totally incapacitated for duty on that date. This finding is based in part on the fact that she signed a resignation form and was therefore in support of union strategy at that time. She was placed on notice of the City's position by Lieutenant Walsh. She admitted that she could have performed "light duty" if she had been requested to do so. It is determined that she participated in a concerted failure to report for duty with other members of the Hollywood Police Department of September 13, 1980. Phillip Perry - Case No. 81-878 Phillip Perry has been a police officer with the Hollywood Police Department since October, 1979. In September, 1980, he was in a probationary status and remained so until February 1981. He was assigned to the night shift. He was not scheduled for duty on September 12. On September 13, he worked his regular shift. That evening, he experienced an upset stomach, diarrhea and cramping and felt too ill to perform his duties the following day. He reported this fact to headquarters at about 8:00 P.M. on September 13. On September 15, he reported for duty and worked a twelve-hour shift. He did not consult a physician because he lacked the necessary funds and considered his illness to be of a temporary nature. Officer Perry is a member of IBPO, but did not attend any meetings in September, 1980. In fact, he has only attended one meeting which was in the spring of 1981. Although he was aware that the department was short-staffed on September 13, and that a number of officers had signed resignations, he had not done so. He testified that he would have been afraid to participate in such an act since he was on probationary status and could be terminated at any time without any right to appeal. He received a telegram from IBPO over the weekend that the organization was not involved in any strike or "sick out." He also observed the television news during that period concerning an unusual number of personnel absences from the department. (Testimony of Perry) Officer Perry's explanation of his absence on September 14, 1980, is considered credible in view of his status as a probationary officer, and because he reported for regularly scheduled duty on September 15, 1980. It is found that he was incapacitated for duty on September 14, 1980 and did not participate with other officers in a concerted failure to report for duty. Charles Shoenthal - Case No. 81-895 Charles Shoenthal had been a police officer for the Hollywood Police Department for seven years. In September, 1980, he was performing duties as an advisor and instructor at the Broward County Police Academy located at the Broward Community College. His duties consisted of supervising trainees at the Academy's Criminal Justice Institute and serving as a part-time instructor for such courses as physical training, searching and securing prisoners, and the like. His assignment was pursuant to a contract between the City of Hollywood and the County Police Academy. He worked a 40-hour, 5-day week. Monday through Friday. On Sunday, September 15, 1980, Officer Shoenthal experienced aches, nausea, and a slight temperature. About midmorning, he went to his mother's house and told her he was not feeling well. She took his temperature and found that he had a slight fever. He spent the remainder of the day at her house mostly lying on the couch and dozing. At about midnight that evening, he notified police headquarters that he was ill and would not report for duty at the Police Academy the following day. He remained at his mother's home overnight and the following morning still felt "a little queasy and a little nauseous." He had a slight temperature at that time. He left his mother's home at mid-day and went back to his house. He notified Academy officials that morning that he was ill and would not report for duty. Respondent has used between 13-15 days sick leave per year since 1978. The reason for this is that he feels that if he is not "100 percent" both physically and mentally, he does not report for duty due to the responsibilities of his job. He also believes that his illness in September would have affected his duties significantly since he comes in contact with between 40 and 45 trainees who could become susceptible to illness due to proximity and close contact in the field and physical activities in the classroom. Respondent is a member of IBPO and attended its meeting on September 11, 1980, and either prior to subsequent to that time submitted a resignation to one of the organization's representatives. Respondent testified that he was unaware that there was a "job action" occurring September 12 - 15 in the department, and that he did not receive any calls or telegrams, or have any contact with any officers of Local 621. Although he watched television, he did not remember seeing any news. Respondent's disclaimer of any knowledge of the ongoing situation concerning the Hollywood Police Department is not deemed credible when considered in connection with the fact of his resignation, his admission that he watched television over the weekend, and that a copy of the Motion for Contempt and Notice of Hearing was left at his home on September 13, 1980. (Testimony of Respondent, E. Shoenthal, Exhibit 21) Although the evidence indicates that Respondent may have been slightly ill on September 15, 1980, his testimony in this regard, which was supported by that of his mother, is considered insufficient to warrant a finding that he was incapacitated on that date. His evasive testimony, coupled with the fact that he admittedly signed a resignation form, leads to the conclusion that he participated with other officers in a concerted failure to report for duty. Richard Nester - Case No. 81-871 Richard Nester has been employed as a police officer with the Hollywood Police Department for a period of six years. Approximately September 5 or 7, 1980, Respondent experienced a "wax buildup" in his ear. The condition became worse and he started suffering earaches. The ear eventually became completely blocked on or about September 11 or 12. He worked the day shift on September 12, but had difficulty hearing and had headaches from his blocked ear. Respondent was still troubled by his ear that evening and his wife telephoned the police department that he was ill and would be unable to work the following day. the call was transferred to Lieutenant Walsh who read her a "threatening letter." On September 13, Respondent was experiencing shooting pains in his ear and his hearing ability was impaired. Early Sunday morning, September 14, he called in sick for that day. He continued to suffer from earaches and headaches on September 14 and went to a hospital emergency room that afternoon where he was given a prescription and advised by his physician that he should seek medical assistance immediately if the problem occurred again. His condition continued and he called in sick again for September 15 which was a scheduled day of duty. He had days off on September 16 and 17, and returned to work on September 18. Although he still experienced some pain, it had dissipated by the following day. Respondent is a member of IBPO and attended a union meeting on September 11, 1980, at which the members were advised that the City was not negotiating and that the police officers were not going to get their raises. Respondent signed a resignation from the department at that meeting. He testified that: "There were 150 of us around and everybody rushed up to the table to sign . . . ." At about 8:00 P.M. on Sunday, September 14, Respondent attended another union meeting at which approximately 150 police officer were in attendance. Although Respondent did not recall exactly what was said at the meeting, he recalled that "quite a few people had called in sick." Respondent had been notified by President Fred Lloyd of IBPO on Saturday, September 13, of the Court proceeding and tried to get Respondent to return to work. In 1976, Respondent shot and killed an individual in the line of duty. He also received a shot which caused a bruise on his hip. He became disillusioned with the police department because he was interrogated and later appeared before a grand jury which rendered a finding that he had justifiably killed the victim. He also felt that the Police Chief and other superior officers had not treated him properly in connection with this incident. After signing his resignation with the Hollywood Police Department, Respondent applied for a job with the Dade County Police Department. During the weekend, Respondent received a telegram from IBPO concerning the pending Court proceedings and learned that officers were calling in sick while watching the news on the evening of September 13. (Testimony of Respondent, M. Nester, Miller, Exhibit 27) It is found that, although Respondent Richard Nester was suffering from an earache during the period September 13-15, 1980, insufficient evidence has been presented to establish that his condition prevented him from reporting for duty on those dates. This finding is supported by the fact that on September 11 he signed a resignation, and that on September 14, Respondent was well enough to drive an automobile to and attend a union meeting. It is further found that he participated in a concerted failure with other police officers to report for duty on September 13-15, 1980. Leo Soccol - Case No. 81-904 Leo Soccol has been a police office officer with the Hollywood Police Department for a period of eleven years. On September 13, 1980, he was scheduled to work the afternoon shift. He played tennis in the morning of that day and injured his ankle which became swollen, stiff and hard to move. Respondent had suffered this type of injury before while engaged in sports. After he returned home, he laid down several hours, treated the injury with ointments, and bandaged it. He called in to the police department and advised that he would not be able to report for duty that afternoon. He was informed that he was required to report in view of the current policy of the City Manager. Accordingly, Respondent's wife drove him to the station and he reported for duty. He explained his problem to Assistant Chief Hessler and said that, although he was unable to work full duty, he could perform any other desired service. Chief Hessler stated that he could not use him in a light-duty position and therefore authorized him to return home. Respondent was using crutches at the time. Hessler had looked at Respondent's ankle and was convinced that it was inflamed and a bona fide injury that incapacitated him from full performance of duty. After Respondent returned home, he treated his injury with icepacks and heat, and remained home during the weekend. He reported for his next scheduled day of duty on Tuesday, September 16, 1980. (testimony of Respondent, Hessler) It is found that Respondent Soccol was incapacitated for duty on September 13, 1980, by reason of his injured ankle. Henry Landis - Case No. 81-850 Henry Landis has been employed as a police officer by the Hollywood Police Department for about four and one-half years. He is a member of IBPO. In September, 1980, he was assigned to the Patrol Division working the day shift. Landis worked his regularly assigned shift on September 12, 1980. He was scheduled for duty on September 13 through 15, but did not work on those three days. During the evening of September 12, he became nauseous with diarrhea and vomiting. He called in sick to police headquarters at approximately 5:00 A.M. on September 13. He called in sick for each of the three days and did not return to duty until Thursday, September 18. He was not scheduled to work on September 16 and 17th. On September 11, 1980, Respondent signed a letter of resignation from the department at an IBPO meeting. His reasons for doing so were that working conditions in the city were intolerable due to lack of respect toward police officers, low pay, and disregard of the city in arriving at salary increases for policemen. Landis planned to leave the department and seek employment with the Dade County Police Department which paid higher wages. Respondent testified at the hearing that the fact that he had made a decision to sign a resignation upset him considerably and brought about his illness over the weekend. He claimed that he always called in sick if he did not feel "100 percent" and that he had done so many times in the past. Over the weekend, Landis received a telephone call from Fred Lloyd of IBPO requesting that he report to work, but Landis informed him that he was not able to return to work. At the September 11 meeting, most of the police officers present also signed resignations and left them at the desk. Landis testified that the resignations were to be "hand carried" to the Chief of Police at the discretion of Lloyd, if the City did not negotiate a reasonable salary increase. Officer Landis decided to stay with the department after receiving the subsequent pay raise. (Testimony of Respondent, Blumenfeld) It is found that Respondent Landis was not incapacitated from the performance of his duties with the Hollywood Police Department on September 13-15, 1980. This finding is based in part on the fact that he signed a resignation, was well aware of the labor problems in the department, and otherwise is deemed to have adopted the union strategy to induce favorable contract terms. Further, the nature of his illness was not disabling and he did not seek medical attention, even though absent for three days. He is considered to have jointed with fellow police officers in a concerted failure to report for duty on those dates. Sandra Alterizio - Case No.81-775 Sandra Alterizio has been employed as a police officer by the Hollywood Police Department for approximately three years. In September, 1980, she was working the day shift in the Patrol Division. Additionally, she had outside employment at Memorial Hospital and for a pool company. Also, she was finishing a bachelor's degree in criminal justice at Nova University by attending night classes. She has a fourteen year old daughter whom she is raising by herself. In the summer of 1980, Respondent was experiencing headaches, dizziness, and nervousness. A physician attributed her condition to overwork, lack of sleep and inadequate diet. On July 31, 1980, while driving her patrol car on duty, Respondent experienced a blackout. She called her supervisor, who took her to a hospital emergency room. The physician told her that she was suffering from low blood sugar and that she should reduce her working hours and see a specialist. Respondent performed duty on September 12, 1980, and was scheduled to work September 13. On the evening of September 12, she called police headquarters indicating that she would not be able to work the following day because of illness. She was then experiencing dizziness and weakness and light- headedness, with a numbness in her fingers and left arm. She felt that she was unfit to drive a patrol car. She received a call from Lieutenant Walsh in the early morning hours of September 13 informing her that anyone involved in any type of a job action was subject to dismissal by the department. Respondent informed him that she was not involved in any type of job action. Respondent received a notice of the court proceeding sometime over the weekend, but did not understand what it said and ignored it. In December, 1980, Respondent apprehended an escaping prisoner and again experienced severe dizziness. In the opinion of the physician, she suffered nervous tension and exhaustion. She received a commendation from an Assistant State Attorney of Broward County for her actions in apprehending the prisoner on December 4, 1980. After completion of her college work in December, 1980, Respondent ceased having problems with dizziness and tension. (Testimony of Respondent, Von Stein, Exhibits 28-33) It is found that Respondent was not incapacitated for the performance of duty on September 13, 1980. She did not seek medical treatment for her condition at the time, was aware of the labor conditions extant in the department, but took no action to justify her absence during the critical period. She is deemed to have jointed with fellow officers in a concerted failure to report for duty. Eugene Pizzeri, Jr. - Case No. 81-880 Eugene Pizzeri, Jr. has been a police officer with the Hollywood Police Department for over fifteen years. He is a member of IBPO. In September, 1980, he was assigned to an administrative position at police headquarters where he reviewed case files and assembled court cases. Respondent was formerly in the active military service and served in the army for three years, during which period he performed duty in Vietnam and received the Silver Star and other decorations. He remained a member of the Active Army Reserve and currently serves as a Master Sergeant with a Reserve unit which trains at Miami, Florida. On September 12, 1980, after performing his police duties, he proceeded to Homestead, Florida for a staff meeting preparatory to weekend drill on September 13 and 14th. He returned home that evening and went back to Homestead at 5:00 A.M. on September 13. He returned again that evening and the following morning went back to complete his Reserve activities. He returned to Hollywood at about 5:00 P.M. on September 14 and, while attempting to start a lawn mower, pulled a muscle in his back. He thereupon took some medication and went to bed. Respondent had suffered a back injury in 1973 as a result of an automobile accident, and has since suffered periodically from that condition. It manifests itself by muscle spasms, difficulty in breathing, and bursitis in the shoulders. Respondent sought to see a physician on September 15 and obtained an appointment in the afternoon. He was found to have muscle spasms and advised to use heat and rest at home. A combined tranquilizer, muscle relaxant, and pain reliever was prescribed for treatment. Respondent had called in sick to police headquarters on the morning of September 15. He had not been aware that there was a so-called "sick out" of police officers until that day due to the fact that his Reserve duties had taken him out of Hollywood for most of the weekend. He had not received any notification or phone calls regarding labor unrest during that period, and had not attended any union meeting during the preceding week. Several days following Respondent's return to work on September 16, he testified that he was finally "coerced" into signing a resignation form by Sergeant Lloyd. Lloyd told him that he could have it back at any time and that it was "just to be waved in front of the Commissioners" and that it would never be used. Lloyd further told Pizzeri that the City Commission would never accept 200 resignations, but that he was collecting them as a show of force or strength. Respondent observed some 150-200 resignation forms at the time. He later attempted to recover his resignation, but it had disappeared and he was told that they had been destroyed shortly after the City Commission meeting at which the Commission approved a pay raise for the police officers. (Testimony of Respondent, A. Pizzeri, Exhibits 34-35) It is found that Respondent Pizzeri was incapacitated for the performance of duty on September 15, 1980. Kevin Doyle - Case No. 81-807 Kevin Doyle has been a police officer with the Hollywood Police Department for four and one-half years. He is a member of IBPO. In September, 1980, he was assigned to the night shift in the Patrol Division. Officer Doyle was not scheduled to work in September 12 through 14, 1980, but was due to perform duties on September 15. On Sunday, September 14, Doyle, an avid sports enthusiast, was playing tennis in the afternoon and injured his back. He went home and put "wet heat" on his back and stayed in a prone position. He testified that he remained in that position through Monday, September15, and reported for the night shift on the following day. On Wednesday, September 17, he sought chiropractic treatment. Respondent had been under the care of a chiropractor since March, 1980, for treatment of chronic lumbral sacral strain. On September 12, 1980, he had a routine appointment for chiropractic therapy. The chiropractor considered that he was in pain on that day and that he was experiencing a "setback." He told Respondent that it would be to his advantage to take time off until he felt better. On September 11, 1980, Respondent attended an IBPO meeting at which time he signed a resignation from the police department. He testified that he did so to go along with the "flow" to see if "we, you know, could pressure the City, I would imagine, into giving a better contract from the City." (Testimony of Respondent, Kaplan) It is found that Respondent Doyle was not incapacitated from performing his regularly scheduled duties on September 15, 1980. Doyle admittedly suffered from a chronic back condition but did not restrict his activities and continued to indulge in strenuous sports. Although he may well have excerbated his condition on September 14, it is noteworthy that he did not seek medical attention until September 16th. It is considered that he joined with fellow officers in a concerted failure to report for duty on September 15, 1980. Dennis M. Primeau - Case No. 81-882 Dennis M. Primeau has been employed as a police officer with the Hollywood Police Department for about five and one-half years. In the month of September, 1980, he was assigned to the day shift. He was scheduled to work on September 13 through 15, 1980. He is a member of IBPO. After finishing his shift on September 12, Officer Primeau was informed of the City Manager's memorandum that anyone calling in sick would be terminated. Primeau had been having dental problems for approximately three months. At the beginning of the week he had started getting severe toothaches. When he went home on Friday, September 12, he had a minor headache and the right side of his mouth was bothering him, due to cavities. He called police headquarters in the early morning of September 13 to report that he would be unable to work that day, and was connected with Lieutenant Walsh who read him the City Manager's memorandum and advised him to report for duty or possibly be terminated. Primeau told him that he was unable to report in his condition. Officer Primeau was unable to chew any solid food or sleep on September 13. He did not attempt to see a dentist on that date because he was without funds to pay for treatment. Primeau worked at extra jobs as a security guard at a grocery store and also operated a lawn service to support his wife and three children. His condition continued through Sunday, September 14, and he borrowed $50 that evening from his father in order to see the dentist on Monday. His wife obtained some medication on Sunday for his pain from a next door neighbor who is a nurse. Primeau's wife attempted to obtain a dental appointment on Monday morning, but was only able to schedule an emergency appointment in the afternoon. At that time, the dentist told Primeau that he had numerous teeth that were broken down and in need of immediate repair. Two teeth were filled at that appointment and some twelve or thirteen cavities were filled from September, 1980 to May, 1981. Respondent reported back for duty on September 16, 1980. During preceding years, Primeau called in sick a number of times with headaches or toothaches. Officer Primeau testified that he did not condone "sickouts" by police officers and that he did not participate in such a "job action." However, he did sign a resignation from the department out of "sheer frustration." He was told by one of the union officers that it was symbolic gesture and not to worry about it being accepted. He wrote a letter to the editor of a local newspaper which was published on November 18, 1980, wherein he criticized a City Commissioner for his lack of concern for the safety of the citizens of Hollywood by favoring the "mass firing" of over 200 police and fire personnel." (Testimony of Respondent, J. Primeau, Exhibits 36-40) It is found that Respondent Primeau was not incapacitated from the performance of duty on September 13 through 15, 1980. The condition of his teeth was chronic, but did not justify his absence from duty for three days during the critical period in September. He did not seek dental treatment on September 13 in spite of knowledge as to the position of the department on absences. He signed a resignation, thus accepting the union strategy in the labor negotiations. It is found that he acted in concert with fellow employees in failing to report for duty on September 13-15, 1980. Victor E. Gaston - Case No. 81-819 Victor E. Gaston has been a police officer in the Hollywood Police Department for a period of 18 years. In September, 1980, he was performing duties as liaison officer to the State Attorney's Office. Officer Gaston suffered various back injuries over the years, and in May, 1980, his back became quite painful. It was determined at that time that he had a pinched sciatic nerve, causing numbness in his leg and foot. Bed rest for several days was prescribed at that time. Subsequently, Gaston consulted chiropractors and had received treatments during the summer. He also consulted a neurosurgeon who performed various tests, including a brain scan which showed negative results. In September, 1980, he fell and sprained his ankle and again visited his chiropractor. On September 8, the chiropractor diagnosed lumbral sacral strain and sprain, sciatic radiculities, and parathesia of the left foot. He prescribed bed rest for three or four days. Nevertheless, Gaston took his granddaughter to Disney World and returned in the evening of September 12. He felt bad during the weekend and stayed in bed most of September 13 through On September 14, he called headquarters to report that he would be unable to work the next day. Lieutenant Flaugher spoke to him and asked him if he was on the "sickout." Gaston responded that he didn't know what the Lieutenant was talking about, but that he wasn't coming in because he could not walk. Respondent has recently been diagnosed to have a ruptured disk and a "drop" foot. He has applied for permanent disability from the police department. (Testimony of Respondent, Exhibits 4.) It is found that Respondent Victor E. Gaston was not incapacitated from the performance of duty on September 15, 1980, and that he joined with other police officers in a concerted failure to report for duty on that date. Although he has a chronic and aggravating back condition, no evidence was presented other than his own testimony that he was unable to work on September 15. He did not seek medical treatment over the critical weekend. His testimony as to his incapacitation is not deemed credible. Otis B. Haney - Case No. 81-826 Otis B. Haney has been a police officer with the Hollywood Police Department for seven and one-half years. In September, 1980, he was working the night shift in the Patrol Division. In 1975, Officer Haney broke his left kneecap while on duty and has had problems with it since that time. Several years ago, the kneecap had to be "scraped" to reduce the friction on the underlying bones. On August 25, 1980, he reinjured the knee while on duty. The knee remained sore and he received medical attention on August 29, consisting of pain pills and placement of an Ace bandage on the knee. He continued to work during the next two weeks, but experienced pain during that period, particularly in entering and leaving his police car. During the week preceding September 15, Respondent was aware of rumors going about the police department that there was a possibility of a "sickout." He attended an IBPO meeting that week, but testified that he could not recall whether he had signed a resignation form. Officer Haney testified that on September 15, 1980, he was having "problems" with his knee and telephoned his physician who recommended that he stay off of it for a while and see if it got any better. He did not visit the physician, however. That evening, Haney telephoned police headquarters and advised that he would be unable to report for his night shift that evening. (Testimony of Respondent, Exhibits 43-44) It is found that Respondent Otis B. Haney was not incapacitated for the performance of duty on September 15, 1980. His testimony as to his lack of knowledge as to the events which occurred during the period September 12-15, 1980, is not deemed credible. Although it is true that he suffered from a recurring knee injury, he had been able to perform duty during the previous weeks and the mere fact that he telephoned a physician on September 15 with complaints does not establish his inability to have worked on that day. His testimony is otherwise unsupported or uncorroborated. It is found that he acted in concert with other police officers in failing to report for duty on September 15, 1980. Lee M. Tango - Case No. 81-933 Lee M. Tango has been a police officer with the City of Hollywood for almost eight years and was assigned to the Detective Bureau in September, 1980, working a day shift, seven days a week. The reason for his unusual hours of work was that he and several fellow officers had been assigned to convert an old warehouse into a simulated store to conduct an undercover operation regarding stolen property. During this period, he and his colleagues engaged in carpentry, removal of walls, and other physical work to create the fictituous store and an office. It was a dusty and hot place to work. On September 5, 1980, Officer Tango began treatment under a physician's care for multiple actinic keratoses on his forehead, nose and cheeks. These are small pre-cancerous growths caused by excessive exposure to the sun. The treatment consisted of chemotherapy by the application of a medication called Efudex. The medication is applied by the patient twice a day for a period of ten days, at which time the physician determines whether subsequent application is necessary. Although the effects vary with a particular patient, the desired reaction produces some degree of pain, scaling, a burning sensation, and redness of the skin. These reactions progress and normally reach their peak at the end of the ten-day period. Officer Tango applied the medication in the prescribed manner subsequent to September 5, and by September 12, his face was inflamed and he was suffering considerable discomfort in the sweaty environment where he was performing his duties. A fellow officer noted that his face got worse day by day and that Tango frequently complained that he was not feel well. He worked on September 12, but early the following morning, called the physician to determine if he should discontinue the medication since his face was becoming quite raw and he was concerned as to whether it would return to its natural state. Tango testified that the doctor advised him to refrain from working that day. However, the physician has no recollection of that telephone call. Thereafter, Tango reported his inability to work to police headquarters. He spoke to Lieutenant Mitchell who read him a letter concerning "termination." The following morning on September 14, Respondent again called police headquarters to report that he was unable to report for duty because of illness. During the morning he received a telephoned telegram from the union advising him to report to work. That afternoon, Lieutenant Ceritelli, one of his superiors, came to his home to pick up his department radio, due to the fact that there had been some interference with radio communications over the weekend. Ceritelli observed that Respondent's face was red, blotchy and scaly, and that he looked terrible. He testified at the hearing that he would not have wanted Tango to perform duty in that condition where he would be obliged to approach the public. Later than day, Tango received a copy of the Circuit Court Order concerning the possibility of being held in contempt of court. That evening, he attended a meeting at the Police Benevolent Hall to try to find out "what was going on" and how he could verify his illness. However, he did not derive any beneficial information from that meeting as to his status because it was "kind of a madhouse." Respondent testified that at the time he called police headquarters on September 14 to report that he was ill, he talked to Sergeant Krysiak and asked him if he would like for him to see a City doctor, but that Krysiak had replied in the negative. He testified that he made the same request to Lieutenant Flaugher when he reported ill on September 15, but received the same negative response. Later, on the morning of September 15, Tango had a regular appointment with his physician. At that time, the physician determined that Tango had arrived at the desired reaction from the medication in that his face was red, sore and scabby, but that he had not had quite enough of the treatment. He prescribed an additional three more days of treatment and advised Tango to remain off work until September 22, 1980. The physician testified at the hearing that, although he did not recall receiving a phone call from Tango on September 12, he could infer from his condition on September 15 that he had been unfit to work on September 13 and 14. Officer Tango followed his physician's advice and called in sick on September 16 and 17, 1980. (Testimony of Respondent, Kellert, Bresk, Ceritelli, Exhibits 45-48) Officer Tango is not a member of IBPO and did not sign a resignation form. Based on the foregoing, it is found that Respondent Lee M. Tango was incapacitated from the performance of duty on September 13-15, 1980 and for several days thereafter. James Rabbitt - Case No. 81-883 James Rabbitt has been employed as a police officer by the Hollywood Police Department for eleven and one-half years. In September, 1980, he was performing duties as a patrol officer assigned to the afternoon shift. He was scheduled to perform duty on September 13 through 15, 1980. On September 12, Officer Rabbitt became ill with vomiting, stomach cramps, and diarrhea. His illness continued on September 13 at which time he went to the emergency room at Doctors' Hospital in Plantation. A physician prescribed medication and diagnosed his problem as viral gastroenteritis. The physician told Rabbitt to go home and get some rest. A note which the physician prepared on September 13 read in part: "Above patient excused from work as police officer 9/13/14/80 due to viral gastroenteritis." However, in a letter written on May 6, 1981, the physician stated that Rabbitt was advised to proceed home to bed for a minimum of a few days bed rest. Officer Rabbitt called in sick for the afternoon shift on September 13. Lieutenant Chamberlain read a memorandum from the City Manager directing police officers to report to their regular work assignments or be subject to possible termination. Rabbitt testified that he was suffering from the same condition on Sunday, September 14, and Monday, September 15. He did not recall whether he had called in sick for September 14 or 15, since he had Lieutenant Chamberlain that the doctor had advised him to remain at home until his condition improved. He further testified that he did not feel able to return to work on the 15th, but that he did return on the 16th even though he felt uncomfortable and weak. On September 13, Rabbitt had spoken with several fellow squad members who had also called in sick and they discussed the statement that had been read to them at the time. Officer Rabbitt was not a member of IBPO in September, 1980, and is sure he did not sign a resignation form even though he was aware that other officers had done so. He had received notification of the court injunction proceedings at some time over the weekend of September 13-14. (Testimony of Respondent, Exhibits 52-53) Based on the foregoing, and in context with the evidence presented by Petitioner, it is found that Respondent Rabbitt was incapacitated for the performance of duty on September 13 and 14, 1980, but was not so incapacitated on September 15, 1980, and on that day participated in a concerted failure to report for duty with other police officers. Deborah Riggerman - Case No. 81-885 Deborah J. Riggerman has been employed as a police officer with the Hollywood Police Department for four and one- half years. She is a member of IBPO. Officer Riggerman was scheduled to work on September 13 and 14. On September 2, she requested those days off chargeable to leave and compensatory time in order to visit her sick aunt in Orlando. Her regular days off were September 11 and 12. Her request was approved and after working her shift on September 10, she drove to Orlando and visited her aunt and parents. She returned to Fort Lauderdale the evening of September 14. During her visit to Orlando, she had no phone conversations with anyone concerning the labor difficulties in Hollywood. Prior to her departure from Orlando in the late afternoon of September 14, she complained of stomach cramps to her relatives. In September, she was staying with friends in Fort Lauderdale while attending an assigned polygraph course. Her residence is in Hialeah and the course was being given in Fort Lauderdale. When she arrived at her friends' home about 8:00 or 9:00 P.M., September 14, she was experiencing stomach and leg cramps. Based on past experience, she knew that she would be unable to work the following day. She went to bed and used heating pad while sleeping that night. She awakened with the cramps about 4:00 A.M. on the morning of September 15 and called in sick to police headquarters. Her call was transferred to the shift lieutenant who merely asked questions regarding her illness, but did not indicate that there was a large number of officers who were not working on that day. Officer Riggerman remained in bed all day Monday. Respondent testified that she was unaware in September that there was to be a "job action" by officers calling in sick, nor had she heard any rumors that officers would be submitting resignations as a group. She was never approached by anyone to participate in such actions. She reported back to work in Tuesday, September 5, 1980. Respondent has called in sick approximately ten or eleven times for menstrual cramps during her tenure with the department. Although she called in sick on September 22, 1980, with "cramps and nausea," she testified that those were leg cramps occasioned by jogging. She has occasionally reported for duty during periods when she was having stomach cramps. (Testimony of Respondent, Beer, Exhibits 54-56) Based on the foregoing, it is found that Respondent Riggerman was incapacitated for the performance of duty on September 15, 1980. Thomas Faeth - Case No. 81-813 Thomas Faeth was a police officer employed by the Hollywood Police Department in September, 1980. He was absent from duty for alleged illness on September 15, 1980. (Testimony of Locke) Respondent was not present at the hearing. Counsel for Officer Faeth announced at the hearing that the Respondent would not present evidence in his behalf. Accordingly, the case was conducted as an uncontested proceeding. Based on the evidence presented by Petitioner, it is found that Respondent Faeth was absent from duty on September 15, 1980, and is deemed to have joined other police officers in a concerted failure to report for duty. Randolph Brown - Case No. 81-787 Randolph Brown was a member of the Hollywood Police Department in September, 1980. He did not report for duty on September 13, 1980, allegedly due to illness. He has since been terminated from employment with the police department. (Testimony of Locke) Respondent was not present at the hearing. Respondent's counsel moved to dismiss the allegations based on the fact of termination. Petitioner did not contest the fact that Officer Faeth had been terminated, but objected to the motion on the basis that Section 447.507(5), F.S., provides for certain restrictions concerning reappointment of an employee who has been terminated pursuant to Section 447.505, F.S. Ruling was reserved on the motion. It is now determined that the motion is granted. In this proceeding, Petitioner can only seek termination or some lesser personnel action against a public employee for violation of Section 447.505. In view of the fact that Respondent has already been terminated from his employment, there can be no basis for application of subsection 447.507(5), F.S. Bertha Samuels - Case No. 81-892 Bertha Samuels was a member of the Hollywood Police Department in September, 1980. She did not perform duty on September 15, 1980, allegedly due to illness. (Testimony of Locke) Respondent was not present at the hearing. Counsel for Respondent announced at the hearing that she had previously resigned from her employment with the police department and moved to dismiss the allegations against her. Petitioner did not dispute the fact that she was no longer with the department, but objected to the motion on the basis that Section 447.507, F.S., provides for certain restrictions concerning reappointment of an employee who has been terminated pursuant to Section 447.505, F.S. Ruling was reserved on the motion. It is now determined that the motion is granted. In this proceeding, Petitioner can only seek termination or some lesser personnel action against a public employee for violation of Section 447.505. In view of the fact that Respondent has already been terminated from her employment, there can be no basis for application of subsection 447.507(5), F.S. William Murphins - Case No. 81-870 William Murphins was employed as a police officer with the Hollywood Police Department in September, 1980. He was absent from duty on September 13 through 15, 1980, allegedly due to illness. (Testimony of Locke) Counsel for Respondent announced at the hearing that Officer Murphins would not present evidence in his behalf. However, he made an unsworn statement which did not address his absences. In view of the foregoing, the case was conducted as an uncontested proceeding. Based on evidence presented by the Petitioner, it is found that Respondent Murphins was absent from duty on September 13 through 15, 1980, and is deemed to have joined other police officers in a concerted failure to report for duty. Dennis Baney - Case No. 81-778 Dennis Baney was a police officer employed by the Hollywood Police Department in September, 1980. He failed to report for duty on September 14, 1980, allegedly due to illness. (Testimony of Locke) Respondent was not present at the hearing. Counsel for Respondent Baney announced at the hearing that Officer Baney would not present any evidence in his own behalf. Accordingly, the case was tried as an uncontested proceeding. Based on the evidence presented by Petitioner, it is found that Respondent Baney was absent from duty on September 15, 1980, and is deemed to have jointed other police officers in a concerted failure to report for duty. The parties stipulated that as the result of the drastically increased rate of absenteeism in the City of Hollywood Police Department between September 12 and September 16, 1980, the City of Hollywood sustained damages in the form of increased overtime costs, legal expenses and court costs. (Exhibit 24)
Recommendation It is RECOMMENDED that: The Public Employees Relations Commission dismiss the allegations against the National Association of Government Employees, through its division the International Brotherhood of Police Officers, International Brotherhood of Police Officers Local 621, and those individual police officers listed in Attachment A hereto. The Public Employees Relations Commission dismiss the allegations against Gary Anderson, Theodore Coombs, Jack Smith, Cheryl Weigand, James B. Smith, Debbie Getz, March Lee, Randolph Brown, Bertha Samuels, Phillip Perry, Leo Soccol, Eugene Pizzeri, Jr., Lee Tango and Deborah Riggerman. The Public Employees Relations Commission order the City of Hollywood to impose a three-month suspension without pay against John Childers, Sharon Herring, Charles Shoenthal, Richard Nester, Sandra Alterizio, Kevin Doyle, Dennis Primeau, Victor Gaston, Otis Haney, James Rabbitt, and Henry Landis under the provisions of subsection 447.507(5), F.S. for violation of Section 447.505, F.S. The Public Employees Relations Commission order the City of Hollywood to terminate the employment of Thomas Faeth, William Murphins, and Dennis Baney, pursuant to the provisions of subsection 447.507(5), F.S., for violation of Section 447.505, F.S. DONE AND ENTERED this 7th day of August, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: William E. Powers Chairman, Public Employees Relations Commission 2600 Blair Stone Road Tallahassee, Florida 32301 Mike Switzer and J. W. Cheatham, Esquires 2600 Blair Stone Road Tallahassee, Florida 32301 Gordon F. Rogers, Esquire City of Hollywood Suite 1800 - 1 Biscayne Blvd. Miami, Florida 33131 Gordon Ramsey, Esquire One Washington Mall Boston, Mass. 02108 Randy Cohen, Esquire 2130 Wisconsin Avenue, N.W. Washington, D.C. 20007 Jeffrey Solomon, Esquire 111 S. 17th Avenue Hollywood, Florida 33020 William Rodriguez, Esquire 4520 NE 18th Avenue Suite 200 Fort Lauderdale, Florida 33334 ATTACHMENT A CASE NOS. 81-484, 81-769 through 945, and 81-1031 774 Alleva, Barbara 770 Lyon James 776 Amann, Robert 856 Lewis, Jdene 779 Baney, Gary 852 Lijoi, Louis 780 Barber, James 769 Lloyd, Frederick, Jr. 781 Bennett, John 854 Loiwke, Thomas 782 Billberry, Cathy 771 Lopez, Jose 783 Billbery, James 858 Maines, Don 784 Boardman, E. Henry 772 Malick, Robert 785 Brand, Gregory J. 860 Manger, Vincent 786 Bresk, Frank 861 Marotta, Joseph 924 Brickman, Richard 862 Marrano, Jeffrey 780 Brodlieb, Gary 863 Marshall, Allen 788 Buschman, William 864 Mattingly, William 790 Christensen, Jerry 865 May, Mark 791 Clarke, Robert 866 McDaniels, Williams 792 Commella, Davis 867 McKenna, Timothy 793 Condon, Donald 842 Michael, Jadwin 794 Condon, Lee 868 Miller, Dawn 926 Cormican, Russell 869 Moltimore, Thomas 927 Covino, Claude 929 Naylon, Dennis 796 Cross, Cynthia 872 Nickmeyer, Joseph 797 Cunningham, Richard 873 O'Connor, Shawn 798 Dalick, Steven 874 Parker, Glenn 799 Daniel, Phillip 875 Parrott, Beverly 800 David, William 876 Patla, Craig 801 DeFalco, Anthony 977 Patty, Susan 928 DeHeron, William 879 Pinder, George 802 Dell, Royce 881 Powell, Derek 803 DeNuccio, Ernest 884 Raccioppi, Ronald 804 Diecidue, Philip 930 Richardson, Lucious 805 Diemer, Thomas 886 Roberts, Marvin 806 Doerr, Dennis 887 Russo, Ben 808 Drabik, Fred 888 Rust, James 809 Dubberly, Marshall 889 Saffran, Michael 810 Dunbar, Robert 890 Salas, Ralph 811 Dykema, Dwight 891 Sampson, John 812 Ellis, Gerald 893 Sauvola, Wayne 814 Feder, Scott 931 Schiano, Richard 815 Feise, Robert 894 Schilling, Rodger 816 Ferraro, Stanley 896 Schubert, Edward 817 Frazer, Kathleen 897 Sejda, Dennis 813 Gaston, Antonio 898 Shaloo, William 820 Gerhard, Lawrence 899 Shipley, George 822 Gibbons, James 900 Singleton, Jr. Don 823 Graves, David 901 Slagle, Jeffery 824 Grella, Joseph 905 Sorenson, Theodore 825 Hague, Curtis 906 Standley, Melvin 828 Harris, Joel 932 Stanley, Ward 829 Hart, Doris Autrey 907 Taylor, Robert 831 Hickman, Ronald 908 Tiger, Charles 832 Hobard, William 773 Tortorici, Philip 833 Hobbs, Frederick 934 Vaughn, Cornelius 834 Hoffman, Jackie 910 Vignau, Carlos 835 Hoisington, Larry 911 Von Stein, Raymond 836 Holloway, Roy 912 Vrancik, William 837 Hopkins, Thomas 913 Wagoner, Lewis 827 Horn, James 914 Warrick, John 838 Horne, Randall 915 Weaving, James 839 Horton, Gregory 917 White, Kenneth 840 Howard, Blaine 935 Wilks, Paul 841 Hummel, Carl 918 Williams, Edward 843 Knox, George 919 Wood, Mark 844 Kohler, Robert 920 Wynn, William 845 Kon, Joseph 921 Young, Bruce 846 Korn, Donald 922 Zahn, Norman 847 Krysiak, Edward 923 Zahn, Steven 848 Lakosky, Fred 848 Lallance, Larry
The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
