Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1995),1/ to terminate Respondent's employment as a classroom teacher.
Findings Of Fact Respondent has been employed by Petitioner since 1985 as a classroom teacher pursuant to a professional service contract defined in Section 231.36(1). Petitioner terminated Respondent's employment for events that occurred on August 3, 1996, which Petitioner alleges constitute misconduct in office, wilful neglect of duty, and violations of professional ethics. On August 3,1996, Respondent was arrested by the Oviedo Police Department for possession of marijuana and drug paraphernalia in violation of Section 893.147(1). The prosecutor entered a nolle prosse to the latter charge. On September 5, 1996, Respondent entered a plea of nolo contendere to possession of marijuana. The court withheld adjudication, fined Respondent $100, and assessed costs of $230. On the evening of August 2, 1996, Respondent dated Ms. Tara Schutz for the first time. Respondent met Ms. Schutz through a dating service. Respondent is a single parent with custody of his two minor children. Ms. Schutz is also a single parent with two minor children. Respondent took Ms. Schutz to dinner at the Boston Lobster Feast. They spent approximately two hours at the restaurant. Respondent had one beer with his dinner. After dinner, Ms. Schutz asked Respondent to drive her to a friend's house in Oviedo to pay the friend some money she owed. Respondent had never been to Oviedo before and was unfamiliar with the area. As Ms. Schutz gave directions, Respondent drove to her friend's house. He stopped the car in front of the house. Ms. Schutz left Respondent in his car while she went into the house. After a few minutes, she returned to the car, and Respondent drove onto State Road 419. A police officer stopped Respondent because of an irregularity in Respondent's license plate. At that point, Ms. Schutz informed Respondent that she had marijuana with her. The police officer approached the driver's side of the car and asked Respondent to accompany him to the rear of the car. Respondent exited the car and accompanied the officer to the rear of the car. Respondent and the police officer stood between the rear of Respondent's car and the front of the police officer's car for about five minutes. During that time, the police officer gave Respondent a field sobriety test. Respondent passed the test, and the officer determined that Respondent was sober. The police officer called for assistance. Another patrol car arrived in about 10 minutes. One of the officers asked Respondent if there was marijuana in the car. Respondent stated that there was, but that it was not his. One of the officers assisted Ms. Schutz from Respondent's vehicle and searched her purse. Until that time, Ms. Schutz had been left alone in Respondent's car. Ms. Schutz was not kept under close surveillance while she was alone in the car. She had sufficient time and opportunity to place marijuana and paraphernalia under the driver's side floor mat. Her purse was large enough to hold marijuana and drug paraphernalia without it being detected by Respondent or the police. An officer asked for permission to search the car, but Respondent refused to give his permission. The officer requested a K-9 unit from the Casselberry Police Department, a neighboring community police department. The K-9 unit searched Respondent's vehicle and found marijuana and a pipe under the driver's side floor mat. The investigating officers did not ask Ms. Schutz if the illegal drug and paraphernalia was hers. The officers did ask Ms. Schutz if Respondent used drugs. She said, "No he didn't." Unknown to Respondent, Ms. Schutz has a history of drug use including a criminal conviction. Ms. Schutz informed the police of her drug history at the scene. Respondent told the police that he was a teacher and begged them not to arrest him. The police huddled together for a few minutes and then arrested Respondent in the early morning of August 3, 1996. The arresting officer concluded that the marijuana and drug paraphernalia belonged to Respondent "because of the location of the marijuana" in the car. 2/ Respondent truthfully completed an arrest form and answered all questions from the police truthfully. Respondent cooperated fully with the investigation. The police did not arrest Ms. Schutz. Respondent refused to allow Ms. Schutz to drive his car from the scene. He elected to have the police tow his car. Respondent entered a plea of nolo contendere on advice of his attorney. Respondent has no criminal history, no prior discipline by Petitioner, and believed that he would not be terminated from his employment. The Oviedo Police Department informed Petitioner of the arrest and plea. Petitioner began this proceeding. After learning of Petitioner's intent to terminate his employment, Respondent voluntarily took three drug tests over a three month period. Each test was negative. Even if Respondent had committed the acts alleged in the Administrative Complaint, Petitioner failed to show by a preponderance of the evidence that there is just cause to terminate Respondent's employment and sever his professional service contract. The incident has not seriously impaired Respondent's effectiveness as a teacher. The arrest and circumstances surrounding the arrest were not reported by the press or published by other means. The arrest and surrounding circumstances did not occur during Respondent's employment. They did not occur on school premises or during the term of Respondent's employment contract. They did not involve his official duties as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of wilful neglect of duty, misconduct in office, or violating the principles of professional conduct, and finding that there is not just cause, within the meaning of Section 231.36(1), to terminate Respondent's employment or sever his professional service contract. DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 29th day of July, 1997.
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to and eligible for licensure as a Class "C" private investigator.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, 1/ I hereby make the following relevant factual findings. Pursuant to an application dated April 19, 1984, Petitioner, Gerald Saslaw, applied for a Class C private investigator's license. By letter dated June 15, 1984, Respondent, Department of State, Division of Licensing, by its Director, Mary Gast, advised Petitioner that his application for a Class C license was denied because "according to our investigative report, you do not meet the requirements. . . ." Director Gast cited Section 493.306(4), Florida Statutes, as statutory authority for the denial. (Respondent's Exhibit 1) The Respondent performed a background investigation of the Petitioner as required by Section 493.309, Florida Statutes. (Respondent's Exhibit 2) An applicant for licensure under Chapter 493, Florida Statutes, must demonstrate the proper qualifications for licensure and must furnish a statement of employement history and qualification on Section 7 of the application form and a separately attached affidavit of experience. (Respondent's Exhibit 3) Respondent verified Petitioner's educational experience acquired at Miami- Dade Community College during 1963 through 1965 and credited Petitioner with 6 months investigative experience. Respondent allowed the Petitioner to substitute his education credits on a ratio of 3 semester hours for 1 credit hour and based on his earnings of 31 hours which included credit for his attendance at the police academy and the fire college, he was awarded 3 times 31 hours or 91 hours, which translated to the award of 6 months credit toward the two-year experience requirement. Petitioner was employed as a patrolman with the City of Miami Police Department from July 5, 1966 through January 27, 1968. During his tenure with the police department, Petitioner served as a patrolman and worked in the Liberty City and inner- city sections of Miami, Florida. During this period of time, Petitioner never achieved a rank or level of responsibility above patrolman. Petitioner listed a Sergeant Quinn of the Miami police department as a reference from which the Respondent could determine verification of his experience with that department. Sergeant Quinn was no longer employed by the City of Miami police department during the time that Respondent conducted its investigation of Petitioner's investigative experience. A review of the available personnel records submitted by Petitioner and the City of Miami police department failed to satisfy that Petitioner acquired investigative experience within the meaning of Section 493.30, Florida Statutes, during his tenure of employment as a police officer with the City of Miami Police Department from 1966 through 1968. (Respondent's Exhibit 2) Petitioner was employed as a firefighter with the City of Miami from 1968 through 1981. During that period, Petitioner served as a firefighter and was transferred to the Fire Prevention Bureau on or about October 23, 1970 through approximately November 16, 1971. At that time, he was reassigned to regular firefighting duties. Respondent interviewed Chief Proli who, during times material herein, was Chief of the Miami Fire Department and he confirmed that Petitioner, during times noted hereinabove, was assigned to the Fire Prevention Bureau. That Bureau is separate and distinct from the Arson Investigations Bureau which works out of the Fire Marshall's office and is in charge of arson investigations. In the Fire Prevention Bureau, employees there check plans and look for violations of the fire code. Additionally, the Department interviewed a Mr. Easterling who is in charge of the State Fire Marshall's office and who is familiar with the various fire marshalls statewide. The interview with Mr. Easterling failed to reveal any evidence that the Petitioner served as an investigator with the Fire Marshall's office or that he performed any other investigative work other than that in the Fire Prevention Bureau's office. Mr. Easterling noted that the Fire Prevention Bureau is not involved with causes and origins of fires. Based on the investigation of Petitioner's work experience with the City of Miami Police Department and the Fire Department of the City of Miami, Respondent was unable to verify that Petitioner's duties involved experience as an investigator or that he had other investigative experience within the meaning of Section 493.30, Florida Statutes. Accordingly, Respondent did not award Petitioner any credit for investigative experience based on his employment with the City of Miami Police Department or with the Fire Department for the City of Miami. Petitioner offered no other evidence which could be credited as investigative experience within the meaning of Section 493.306(4), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Petitioner's application for a Class "C" private investigator's license be denied. 2/ RECOMMENDED this 17th day of July, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of July, 1985.
The Issue Whether Petitioner demonstrated entitlement to issuance of a Florida Educator?s Certificate.
Findings Of Fact Respondent, as Commissioner of the Florida Department of Education, is charged with the duty to issue Florida Educator's Certificates to persons seeking authorization to become school teachers in the state of Florida. Petitioner is a second-grade teacher. She is in her third year of teaching. Pending action on her application for an Educator's Certificate, Petitioner has taught under the authority of temporary Statements of Eligibility. She currently teaches at George W. Monroe Elementary School in Quincy, Florida. On or about April 17, 2012, Petitioner submitted an on- line application for a Florida Educator's Certificate in Elementary Education. The application included a field with the heading “CRIMINAL OFFENSE RECORD(S)(Report any record other than sealed or expunged in this section). In her application, Petitioner disclosed the following criminal offenses, their dates, and their dispositions: Affray - June 2002 - Probation Conspiracy to Possess Marijuana - August 2006 - Guilty/Adjudicated Petty Theft - April 2000 - Pretrial Diversion Disorderly Conduct - February 2001 - Probation DWLS - February 2001 - Probation In conjunction with her application, Petitioner submitted information to substantiate those offenses that she could remember, as well as a set of fingerprints. Included in Petitioner?s submittals to Respondent was a copy of the Judgment in a Criminal Case, United States of America v. Torreya Haynes, Case No. 4:06cr10-03(S), from the United States District Court for the Northern District of Florida, dated August 3, 2006. Petitioner stipulated that she is the person identified in the Judgment as Torreya Haynes. The acts upon which the Judgment was based concluded on August 15, 2005. The Judgment established that Petitioner pled guilty to the offense of Conspiracy to Distribute Marijuana, and was sentenced to a three-year term of probation and payment of a special monetary assessment of one-hundred dollars. The parties stipulated to the following facts regarding Petitioner?s criminal record: On or about March 5, 2000, the Applicant was arrested and charged with Petit Theft in Leon County, Florida. The Applicant entered into a pre-trial diversion program and a “No Information” was filed on the charge. On or about July 20, 2000, the Applicant was arrested and charged with Affray in Leon County. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about August 20, 2001, the Applicant was arrested and charged with Disorderly Conduct/Affray in Leon County, Florida. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about June 9, 2004, the Applicant was arrested and charged with Battery in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about August 4, 2004, the Applicant was arrested and charged with Possession of Marijuana in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about February 2, 2005, the Applicant was arrested in Miami-Dade County, Florida, and charged with Possession of Cannabis. The Applicant entered into a pre- trial diversion program called “Court Options” and the charge was nolle prossed. In addition to the foregoing, Petitioner testified that she did not list a 2001 arrest for passing a worthless bank check, to which she pled no contest and received probation. Petitioner did not list the offenses in sub-paragraphs 7.b. through 7.f. and in paragraph 8. in the application. On September 19, 2012, Respondent served Petitioner with a 10-count Notice of Reasons advising her that her application for a Florida Educator's Certificate was denied. Petitioner timely filed an Election of Rights that requested a formal hearing. Petitioner will be unable to continue to teach students in Florida without a valid Educator?s Certificate. Thus, Petitioner is substantially affected by the intended decision to deny her certification, and has standing to contest the intended action. From her March 5, 2000 arrest for Petit Theft, which occurred when she was 19 years of age, until the August 15, 2005, date of the conclusion of the offense of conspiracy to distribute marijuana, which occurred when she had just turned 25 years of age, Petitioner was arrested and entered into some form of official disposition of the offenses on, at best count, twelve occasions. Despite the relatively light nature of the dispositions, generally consisting of pretrial diversion or probation, the charges were serious, including multiple drug charges, battery, and affray. “Chaotic” would be an apt description of those years of Petitioner?s life. In her application for an Educator?s Certificate, Petitioner answered truthfully that she had criminal offenses in her background, and listed what she remembered. Petitioner testified that she completed the application from memory and thought she had answered the questions posed, but did not try to recover paperwork or records from the clerk of court. Petitioner understood that her fingerprints submitted with her application would provide the Department with access to her complete criminal record, and expected that the background check would disclose her record in the application process. A review of the application form shows there to be five spaces for information to be entered. There was no evidence that additional spaces were provided. It is not known how offenses were to be listed if they numbered more than five. Petitioner listed her federal conviction as “conspiracy to possess marijuana,” and indicated that she was adjudicated guilty. Petitioner testified that she had originally been charged with conspiracy to both possess and distribute marijuana. She was convicted of conspiracy to distribute marijuana, but confused the charges when filling out the application. Petitioner provided Respondent with a copy of the conviction, which plainly identified the offense for which she was convicted. There was no effort to conceal or falsify the nature of the conviction. Rather, the error was just that, an error. In the more than eight years that have passed since the conclusion of the last acts that constituted the conspiracy to distribute marijuana, Petitioner appears to have turned a corner. Petitioner?s actions since 2005 show a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. She married, and has a child with a second on the way. She is active with her school, her family, and her church. She went back to school and earned a Master?s Degree in Public Administration. She has taught for more than two years without incident or complaint. Petitioner expressed a sincere interest and concern for the children under her tutelage. Petitioner?s testimony that “I?ve grown up. I?m not the same person that I was before,” was convincing, and leads to the conclusion that she has substantially rehabilitated herself. Based on Petitioner?s demeanor and sincerity at the hearing, the undersigned finds her testimony to be credible and worthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Torreya Landrea Davis?s application for an Educator?s Certificate, subject to such reasonable conditions as will allow the Commission to monitor and ensure Ms. Davis?s continued attention to and compliance with the standards necessary for maintaining the Educator?s Certificate in good standing. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S GARY EARLY 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 13th day of December, 2013.
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, 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 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, 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 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Parties. Petitioner, Robert L. Wright, is an African-American. Officer Wright was, at all times relevant to this proceeding, employed by Respondent as a police officer. Respondent, the City of Gainesville (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. The City provides law enforcement services through the Gainesville Police Department (hereinafter referred to as "GPD"). At all times relevant to this proceeding, the Chief of GPD was Wayland Clifton, Jr. The City is an "employer" for purposes of this proceeding. Officer Wright's Employment With GPD. Officer Wright was hired by GPD in 1984. Officer Wright has served as a police officer with GPD continuously since being hired. From approximately 1985 until July of 1990, Officer Wright was assigned to Crime Prevention or Neighborhood Services. Officer Wright served as "Officer Friendly" and as the Explorer Advisor. While employed with GPD Officer Wright has received several awards and honors. See Petitioner's exhibit 10 for a list of Officer Wright's awards and honors. Officer Wright was awarded a B.A. degree in Criminal Justice from the University of Florida in 1983. Officer Wright's annual evaluations have been above-average. Officer Wright has received the following sustained internal affairs complaints prior to March of 1993: March 1, 1988: Involvement in an at-fault vehicle accident; October 12, 1990: Inefficiency in job performance; October 12, 1990: Offensive conduct toward the public/person - physical abuse; October 12, 1990: Offensive conduct toward the public/person - verbal abuse; October 22, 1990: Failure to appear for any legal process; December 17, 1990: Inefficiency in job performance; February 21, 1991: Inefficiency in job performance; and November 23, 1992: Inefficiency in job performance. The three complaints of October 12, 1990 all arose out of the same incident. Officer Wright received a written warning for each of the foregoing sustained complaints. A written warning is the lowest recorded punishment for a sustained complaint. A written warning may not be appealed. Officer Wright also received sustained complaints after 1991, but the evidence failed to prove that any of those sustained complaints were taken into account in determining whether to promote Officer Wright. Prior to 1990, Officer Wright had received overall ratings of 7 and above on his annual evaluations. A score of 5 is considered average. During 1990, Officer Wright and his former spouse were involved in divorce proceedings and a contested custody dispute over their daughter. These disputes caused disruptions for Officer Wright and GPD. As a result of the disruptions and the fact that Officer Wright was reassigned to patrol in 1990, Officer Wright's overall evaluations declined. For the period April 2, 1990 to April 1, 1991, his overall evaluation was 6.0. His overall evaluation for April 1, 1991 to March 30, 1992 was 6.2, and for March 20, 1992 to March 29, 1993 was 6.6. Officer Wright was counseled by his immediate supervisor, Lt. David Huckstep, about the performance of his duties during the time that Officer Wright was involved in the dispute with his former wife. Lt. Huckstep talked to Officer Wright about being late to work, an "attitude problem" and the negative impression of GPD being caused by the problems associated with Officer Wright's divorce. Lt. Huckstep also discussed these problems with Captain Richard Carroll. Captain Carroll was part of the Command Staff that was involved in discussions of candidates for promotion to corporal, discussed, infra. Officer Wright's Activities on Behalf of African- American Issues. Officer Wright has been active in promoting the betterment of African- American officers of GPD since becoming a police officer. Officer Wright's activities on behalf of African-American issues has been very vocal and open. There are some who perceive Officer Wright's methods as too aggressive or vocal. The evidence, however, failed to prove that perception is held by Command Staff or Chief Clifton. On September 25, 1985, Officer Wright, along with ten other officers, were appointed by Chief Clifton as "recruitment team members". Petitioner's exhibit 3. Chief Clifton informed Officer Wright and the other team members that they would be assigned, as needed and on a rotational basis to recruitment functions by the Police Personnel Office. Officer Wright and the other team members had expressed interest in assisting with recruitment. On September 20, 1988, Officer Wright and eleven other individuals were appointed by Chief Clifton as a "Minority Recruiting and Training Task Force". On October 3, 1990, Officer Wright and fourteen other officers were appointed by the Professional Standards Commander, Captain Eugene K. Ross, to participate in the oral interview board for police officer applicants. Appointment to this task was based upon the expressed interest of the participants. Officer Wright has questioned the success of GPD's efforts to recruit and promote African Americans and has questioned the discipline of African American police officers. The evidence, however, failed to prove that Officer Wright's activities on behalf of African Americans amounted to opposition to any unlawful employment practice under Chapter 760, Florida Statutes, by GPD, except as discussed in section D of this Recommended Order. Officer Wright's Meeting with the City Manager. At some time during 1990, Officer Wright, Captain Tony Jones, Lt. Alena Buggs (then known as Alena Lawson) and Sergeant Wayne Ashe met with Paul White, the City of Gainesville City Manager. The meeting with Mr. White was requested for the purpose of discussing the hiring and promotion of African-Americans at GPD. A perceived disparate treatment of African-American officers with regard to disciplinary actions at GPD was also briefly discussed with Mr. White. In particular, Officer Wright gave Mr. White a copy of an Internal Affairs report concerning a complaint against Officer Dan Schilling (hereinafter referred to as the "Schilling Report"). See Petitioner's exhibit 2. Officer Schilling had been found to have used the words "those God damn niggers" in front of others. When the report was forwarded to Chief Clifton from internal affairs an Employee Notice form summarizing the incident was used to send the actual detailed report to Chief Clifton. Petitioner's exhibit 2. Under the "Comments" section of the Employee Notice the offending words were quoted. Chief Clifton sent the report back with a note indicating that he would sign the report and accept the recommended punishment when the quoted offensive words were removed. The words were later removed and Chief Clifton approved the report and the proposed punishment. Mr. White told the officers that he would look into the Schilling Report. The evidence, however, failed to prove whether Mr. White ever spoke to Chief Clifton or any other individual about the Schilling Report or the meeting. Officer Wright's Transfer to Patrol in July of 1990. On or about July 3, 1990, a transfer order was issued transferring Officer Wright to the Patrol Division. See. Respondent's exhibit 1. The transfer order of July 3, 1990 was issued after Officer Wright had given the Schilling Report to Mr. White. The evidence failed to prove how long a period of time had passed after the meeting with Mr. White before the transfer was ordered. Pursuant to the transfer order, four other officers were also transferred. During the month of July of 1990 a total of eight officers were transferred to patrol. None of the officers transferred had attended the meeting with Mr. White except Officer Wright. Of the individuals who attended the meeting with Mr. White, only Officer Wright was transferred. The transfer was effective July 23, 1990. Initially Officer Wright was to be assigned to the midnight shift. Officer Wright was absent on leave when the transfer order was issued. He learned of the transfer on July 10, 1990. Captain Jones informed Officer Wright of the transfer. Officer Wright spoke to Captain Noel Thomas, the commander of Patrol, on July 10, 1990 concerning the transfer. Officer Wright requested orally and by memorandum that he be assigned to a day-shift. See Respondent's exhibit 7. This request was made because Officer Wright was a single parent with custody of his three-year old daughter. Although Captain Thomas initially told Officer Wright that he would be assigned to the midnight shift, the next day, July 11, 1990, Captain Thomas told Officer Wright that his request to be assigned to a day shift would be approved. Patrol is the largest division of the GPD and is the primary service provided by GPD. All commanders, including the commander in charge of the Neighborhood Services Division of GPD, Captain Jones, were informed that there was a shortage of personnel in the Patrol Division. Therefore, the Chief directed Captain Jones and the other commanders to look within their respective divisions and make recommendations about any officer that could be transferred to patrol. Captain Jones decided that either the school resource officer at Gainesville High School, Officer Burke, or the Explorer Advisor, Officer Wright, should be returned to Patrol. Captain Jones decided that it was more important to retain an officer at the high school than to have an Explorer Advisor. This decision was based upon Captain Jones' belief that, if the high school resource officer was removed, patrol would simply take the officer's place by having to respond to calls from the high school. Captain Jones recommended that Officer Wright be transferred to Patrol. Captain Jones was not directed by anyone to select Officer Wright. Captain Jones' recommendation was accepted by Captain Clifton. After Captain Jones had recommended that Officer Wright be transferred and Chief Clifton had accepted the recommendation, Captain Ross met with Chief Clifton. During this meeting the question was raised as to whether Officer Wright's transfer might be perceived as retaliation for his having met with Mr. White. The evidence concerning this meeting, however, failed to prove that Chief Clifton made the decision to transfer Officer Wright based upon his involvement in the meeting with Mr. White. Captain Ross was unable to recall exactly who participated in the meeting, whether Chief Clifton made any statement to the effect that his decision to transfer Officer Wright was based in any way on the meeting with Mr. White or whether Chief Clifton was aware of the meeting with Mr. White prior to the decision to transfer or the meeting with Captain Ross. The evidence also failed to prove whether Chief Clifton was informed that Officer Wright had given the Schilling Report to Mr. White or otherwise suggested that the action in the Schilling Report was an example of disparate treatment based upon race in violation of Chapter 760, Florida Statutes. The evidence failed to prove that Officer Wright was transferred to patrol for any discriminatory reason. No complaint was filed by Officer Wright within 365 days of his transfer to patrol alleging that his transfer was for discriminatory reasons. The 1991 Corporal's Eligibility List. Effective December of 1991 a group of officers qualified for promotion to corporal. They qualified for promotion by successfully completing a test and assessment. The officers that qualified for promotion to corporal in 1991 were listed alphabetically on the "1991 Corporal's Eligibility List" (hereinafter referred to as the "Corporal's List"). Respondent's exhibit 11. All of the individuals that qualified for promotion were listed alphabetically. Officer Wright was the last person on the Corporal's list. Inclusion on the Corporal's List meant that each of the individuals listed met the minimum requirements for promotion. Inclusion did not, however, mean that each individual on the list was equally qualified. Some judgment was necessary to decide which individuals on the list were actually promoted absent a need to promote all of the individuals on the list. Officer Wright was one of the individuals listed on the Corporal's List. Pursuant to contract with the union representing employees of GPD, the Corporal's List was valid for an eighteen month period: December, 1991, to May, 1993. There were twenty-six individuals listed on the Corporal's List. Promotions From the Corporal's List. Chief Clifton was provided with information from the Commander in Charge of Personnel concerning each candidate's personnel record, including their annual evaluation scores, training and the length and type of their service at GPD. Chief Clifton was also provided with information from the Internal Affairs Commander concerning each candidate's sustained internal affairs complaints. Prior to January 6, 1992, when the first promotion from the Corporal's List was made, Chief Clifton met with the Commander in Charge of Personnel, the Internal Affairs Commander, the Deputy Chief and the Captains of each division of GPD to discuss the individuals on the Corporal's List. The purpose of the meeting was to allow Chief Clifton to receive input from his command staff concerning the individuals on the Corporal's list. There were more than 200 officers employed by GPD. Chief Clifton was not familiar with all of the officers and, therefore, he looked to his command staff for input. Chief Clifton insists that any comments for or against an officer on a promotion list be supported by specifics. The discussion of candidates on a promotion list can be extensive, lasting two to three hours. Chief Clifton considers comments made by his command staff concerning officers on promotion lists along with the other information he is provided about candidates mentioned in finding of fact 50. Chief Clifton, however, makes the final decision as to which officers are promoted. If someone speaks highly about a candidate for promotion on a promotion list, that individual has a better chance of being promoted. The decision is not, however, a popularity contest in which the person most liked gets promoted. If an individual is spoken highly of by his or her supervisors, it is reasonable that the Chief would give those comments great weight. Chief Clifton asked for comment about each person listed on the Corporal's List. Chief Clifton took the names on the Corporal's List in reverse alphabetical order. Therefore, Chief Clifton first asked if there were any pro's or con's concerning Officer Wright. No one in the meeting made any comment concerning Officer Wright. Chief Clifton repeated Officer Wright's name a second time. Again, there was no response. Chief Clifton then went on to the next name. Of the twenty-six individuals on the Corporal's List, Officer Wright was the only officer that received no comments whatsoever during the meeting to review the Corporal's List. After the meeting with the command staff, Chief Clifton met with Lt. Scott and Deputy Chief Johnston and informed them of his decision. Chief Clifton subsequently made promotions of seventeen individuals on the Corporal's List. The following promotions were made from the Corporal's List: January 6, 1992: Terry Converse, Paul Forsberg, Shelly Grulke, Stephen Kramig and Jeffrey Rouse (or Reese); April 27, 1992: Edward Posey and Larry Seale; November 23, 1992: Mary Birkhold, Mason Byrd, Corey Dahlem, Steve Dean, David Riker, Stephen Weaver and L. Dale Witt; January 4, 1993: Timothy Hayes, Martin Krpan; and March 29, 1993: Edward Legall. Chief Clifton met with Lt. Scott and Deputy Chief Johnston prior to each of the promotion decisions on the Corporal's List. Lt. Scott reminded the Chief during these meetings of the first meeting with the command staff. The last person to be promoted from the Corporal's List was Edward Legall. Officer Wright continued to be eligible for promotion off the Corporal's List until it expired in May of 1993. Officer Wright was not selected by the Chief for promotion from the Corporal's List. Eight other individuals on the list were also not promoted. Officer Wright could not have known that he would not be selected for promotion until May of 1993. Officer Wright has not qualified for any other promotion list. The Basis for Not Promoting Officer Wright. The evidence in this case failed to prove that Officer Wright was not promoted due to his activities on behalf of African American officers. The evidence also failed to prove that Officer Wright was not promoted due to his having given the Schilling Report to Mr. White. Although Mr. White indicated that he would speak to Chief Clifton about the Schilling Report, the weight of the evidence failed to prove whether he actually did. To conclude that Mr. White actually spoke to Chief Clifton would require inappropriate speculation. The evidence also failed to prove that Officer Wright was not promoted due to his having met with Mr. White. One of the other individuals that met with Mr. White, Wayne Ashe, was subsequently promoted to Sergeant in November of 1992. Sergeant Ashe was on the sergeant's promotion list considered at the same time as the Corporal's List. The evidence also failed to prove that Officer Wright was more qualified than any of the officers selected for promotion off the Corporal's List. The only evidence presented by Officer Wright concerning any of the officers promoted was evidence comparing his education with theirs. That evidence indicated that Officer Wright had more formal education than most of the promoted officers. The evidence, however, proved that more than education was taken into account in deciding who was promoted. Also considered by Chief Clifton was: interval affairs history, performance appraisals, service with GPD, the location and circumstances surrounding the position to be filed and input from the Commanders about a candidate's performance, abilities and interaction with other officers. Officer Wright failed to present evidence concerning all of these factors with regard to the officers promoted off of the Corporal's List. Finally, the evidence failed to prove that Officer Wright was denied a promotion because GPD or Chief Clifton perceived Officer Wright as a "racist". I. Officer Wright's Complaint. Officer Wright filed a Charge of Discrimination with the Commission on or about November 11, 1993 alleging that Chief Clifton had subjected him to certain retaliatory actions. In his complaint, Officer Wright suggested that the transfer to patrol and the failure to promote him were retaliatory actions of GPD. On or about July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about August 19, 1994, Officer Wright filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings on August 29, 1994. In his Petition for Relief, Officer Wright alleged that Respondent violated the Florida Civil Rights Act of 1992, as amended, in the following manner: I contend that I was not promoted as a retal- iatory measure resulting from my questioning the Department's commitment to increasing the numbers of African-American police officers. My comments, as reported to me by Deputy Chief Darryl [sic] Johnston, led to be being perceived as a "racist" by command staff, and he further suggested that this perception influenced my not being selected for promotion. Officer Wright also alleged the following "ultimate facts": I allege that discriminatory labor practices occurred by my lack of promotion due to: a) retaliation for raising racial hiring issues, and b) issues of race, whereby command staff's perception of my being "racist" influenced the decision to not promote me. For entitlement, I request the following: a) finding of cause that discrimination did occur, b) promotion, and c) retroactive pay. Officer Wright did not challenge his transfer to patrol in the Petition for Relief.
