The Issue Whether the Respondent's certification as a police officer should be disciplined for alleged violations of Chapter 943, Florida Statutes.
Findings Of Fact On December 19, 1986, Thomas Barrow was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission, Certificate Number 23-86-999-03. He was initially employed by the Santa Rosa County Sheriff's Department in April, 1986. Barrow has served as a deputy sheriff with three sheriffs. His duties have included at least five years as an investigator for the Santa Rosa County Sheriff's Department. He is currently serving as a corporal with Sheriff Jerry Brown. As a corporal under Sheriff Brown, Barrow is a line supervisor working in the field with the road deputies. Barrow assists the road deputies when questions arise and carries out the orders of his superiors. During Barrow's tenure with the Santa Rosa County Sheriff's Department, his performance evaluations can generally be characterized as above satisfactory or outstanding. Barrow's last evaluation, by Sheriff Brown, rates his performance as satisfactory (the highest rating available); however, both Sheriff Brown and Barrow's immediate supervisor, Lieutenant Joel Lowery, consider him to be a "very effective," and "good" supervisor. Barrow has been disciplined on three occasions as a deputy sheriff. On two occasions, the discipline was voluntarily withdrawn or overturned by the Santa Rosa County Civil Service Board. The remaining disciplinary action was a verbal reprimand for working overtime without authorization. In March, 1991, Barrow was discharged from his position as deputy sheriff by Sheriff E.M. Coffman for conduct unbecoming an employee and mishandling of evidence. Barrow successfully appealed his discharge through the Santa Rosa County Civil Service Board which found his discharge to be without just cause. Barrow was ordered reinstated to his position as deputy sheriff and granted full backpay and restoration of benefits. Corporal Barrow was not formally returned to his position as deputy sheriff until September, 1992. During the period from March, 1991, through September, 1992, Barrow did not visit the Sheriff's Department, have any current knowledge of the activities of the Department's narcotics division, its personnel operating as undercover agents or any narcotics investigations being conducted by the division. It is during the period of Barrow's termination that the allegations of misconduct outlined in the Administrative Complaint arise. Prior to Barrow's termination in March, 1991, he was working in the Sheriff's Department criminal investigations division. Through that duty, Barrow met an individual named Jimmy Joe McCurdy. McCurdy, a longtime resident of Santa Rosa County, was confined in the County jail as a result of a violation of probation for a federal arson conviction. Barrow met McCurdy when he assisted a federal agent in obtaining McCurdy's release on bond as part of a plea agreement. During the summer and fall of 1991, McCurdy would occasionally contact Barrow by telephone about problems he was having. On one occasion, McCurdy asked Barrow to help him correct a problem with a suspended driver's license. On another occasion, McCurdy asked Barrow to locate a vehicle which had been confiscated by the Sheriff's Department. Barrow provided McCurdy with information about how to correct the problem or persons to contact for assistance. McCurdy had somewhat attached himself to Barrow when he needed advice. Barrow did not attach any real significance to the telephone contacts made by McCurdy. They were infrequent, once every four or five weeks, and he had other major concerns at the time having lost his job. Barrow did not socialize with McCurdy, have any business dealings with McCurdy or loan him any money. Barrow was simply trying to pacify McCurdy, who was somewhat paranoid, that "everybody wasn't out to get him." During almost every conversation, Barrow advised McCurdy if he was not doing anything wrong, he did not have to worry. McCurdy always assured Barrow that he was not doing anything wrong. Barrow believed McCurdy because he could not imagine McCurdy or anyone stupid enough to commit criminal acts while on probation, awaiting sentencing for a federal crime, and while helping the federal government on the same matter. In early October 1991, Jimmy Joe McCurdy telephoned Barrow at his home. McCurdy wanted to know if Barrow had found out anything about his confiscated car. Barrow advised him he had not and that McCurdy should contact FDLE about the car. During the course of the conversation, McCurdy told Barrow he felt the County was trying to set him up and that cars were driving by his house. Barrow advised McCurdy that he needed to stay out of trouble. Barrow further advised McCurdy if he was not doing anything wrong, nobody could do anything to him, but if he was doing anything wrong, they would catch him. Finally, during the conversation, McCurdy asked Barrow about a car which had driven by his house and described it to Barrow. Barrow told McCurdy that it could possibly be one which belonged to the Sheriff's Department. At the time of the October, 1991, conversation between McCurdy and Barrow, Barrow did not know the Sheriff's Department was conducting an undercover narcotics investigation of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession and sale of illegal drugs. On the contrary, McCurdy assured Barrow on several occasions he was "staying straight." Had Barrow known of the narcotics investigation, he would not have disclosed to McCurdy the car was possibly an undercover vehicle used by the Sheriff's Department. On the evening of November 8, 1993, Jimmy Joe McCurdy was arrested for the possession of marijuana as a result of a narcotics investigation being conducted by the Sheriff's Department and FDLE. The undercover narcotics investigation had begun in early October, 1991, with Jimmy Joe McCurdy the subject of the investigation. The arrest of McCurdy on November 8, 1991, concluded the investigation. Thomas Barrow was not aware of the investigation of McCurdy by the Sheriff's Department at any time prior to the end of the investigation. During the course of the investigation, the Sheriff's Department became aware of Barrow's comments to McCurdy relating to the possibility of the car being an undercover vehicle. The Sheriff's Department did not contact Barrow to seek his cooperation in not revealing any additional information to McCurdy which might be damaging to the investigation. On the evening of November 8, 1991, after McCurdy was arrested by the Sheriff's Department and the FDLE, McCurdy telephoned Thomas Barrow at his home. The telephone call was made at the request of FDLE. McCurdy was asked to contact Barrow and describe several cars to him. McCurdy agreed to cooperate by making the telephone call. At approximately 10:00 p.m., on November 8, 1991, McCurdy telephoned Barrow. Barrow was already asleep, but answered the telephone. When McCurdy initially brought up the subject of a car, Barrow mistakenly believed that he was speaking about McCurdy's confiscated car and told him he had not been able to find out any additional information about the car. When McCurdy told Barrow he was referring to the possible undercover car from the Sheriff's Department, Barrow indicated it was the type of car driven by Leonard Thomas. McCurdy then told Barrow a man came by earlier in the evening "driving a silver or grey Camaro." Barrow told McCurdy the Sheriff's Department has undercover cars of that kind. During the conversation, McCurdy indicated the driver of the car was "asking a lot of questions" and was concerned whether the County was "out to get him." Barrow advised McCurdy: "No, now just be careful, you know, don't be messing with nothing, of course, you told me you hadn't been messing with anything you told me last time so." On two other occasions in the conversation, Barrow advised McCurdy to "keep it straight" and "stay outta anything." During the November 8, 1991, conversation, Barrow did not know the Sheriff's Department was conducting a narcotics investigations of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession or sale of illegal drugs. Had Barrow believed McCurdy was engaging in the sale of illegal drugs, he would have advised the Sheriff's Department or Charles Layman of FDLE concerning McCurdy's conduct. Corporal Barrow's disclosures of information to Jimmy Joe McCurdy relating to the possibility of vehicles and persons working undercover for the Sheriff's Department were unthinking, incautious and in poor judgment for a law enforcement officer. Barrow acknowledges the errors. The disclosures were not made by Barrow with any intent to obstruct an ongoing narcotics investigation or assist McCurdy in avoiding detection during the investigation. Barrow's family and friends are all involved in law enforcement. Barrow would never jeopardize a law enforcement officer by purposely revealing confidential information. Since the McCurdy incident, Barrow has returned to work with the Santa Rosa County Sheriff's Department. The McCurdy incident has been disclosed to Sheriff James Brown and Barrow's supervisor, Lieutenant Joel Lowery. While these individuals do not consider Barrow's conduct in the matter proper, it has not affected Barrow's performance as a law enforcement officer. Barrow is considered to be a very effective law enforcement officer who exercises good judgment in the field.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against the Respondent. DONE AND ENTERED this 23rd day of March, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 23rd day of March, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-7100 The facts contained in paragraphs 1-4, 7-9, 95, 96 and 103 of the Petitioner's proposed findings of fact are adopted in substance, insofar as material. The facts contained in paragraphs 12-19, 25, 32, 33, 35, 42, 50, 63, 64, 69, 74-76, 78, 81-84, 88, 89, and 93 of the Petitioner's proposed findings of fact were not shown by the evidence. The facts contained in paragraphs 5, 6, 10, 11, 20-24, 26-31, 34, 36- 41, 43-49, 51-62, 65-68, 70-73, 77, 79, 80, 85(a)&(b)-87, 90-92, 94, 97-102, and 104-118 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1-24 of Respondent's proposed findings of fact are adopted in substance, insofar as material. COPIES FURNISHED: Monica Atkins-White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 Gene "Hal" Johnson, Esq. 300 East Brevard Street Tallahassee, FL 32301 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esq. General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489
The Issue Whether Petitioner was the subject of an unlawful employment practice in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Katrina Morgan, is a female who was employed by Respondent as a probationary Correctional Officer at the Columbia County Sheriff’s Office. Petitioner first worked for the Columbia County Sheriff’s Office from January 2001, through April 1, 2001, as a Correctional Officer. At the time, Petitioner was aware that the Columbia County Sheriff’s Office had a policy that required a Correctional Officer to personally call his or her immediate supervisor at least one hour before the scheduled start of the shift if he or she is unable to report for duty. The policy requires the officer to personally call so that inquiry can be made into how sick he or she is and when the officer might return. The information is necessary so that appropriate numbers of staff can be scheduled and planned for. Unfortunately, Petitioner’s son was involved in a serious traffic accident that resulted in serious injuries to him. As a result of her son’s injuries, Petitioner had many days of absence from her employment. She frequently failed to notify her supervisor when she was unable to report for duty. Such failure violated the Columbia County Sheriff’s Office policy regarding notification in such circumstances. As a result of the policy violations by Petitioner, she received several written warnings from her shift supervisor, then Sergeant Donald Little. In addition to written warnings, Sergeant Little spoke with Petitioner on the telephone about the proper utilization of the Columbia County Sheriff’s Office call- in policy. Eventually, after several such absences, Lieutenant Johnson contacted Petitioner to tell her that he could not permit Petitioner to stay employed with the Columbia County Sheriff’s Office and offered her an opportunity to resign. Petitioner verbally resigned her position with the Sheriff’s Office on March 21, 2001, and later faxed her written resignation to the Sheriff’s Office on March 22, 2001. After she left Columbia County, Petitioner was employed by the Florida Department of Corrections where she had, also, been previously employed. She worked for a period of approximately five to six months with the Department of Corrections and decided to return to the Columbia County Sheriff’s Office because it would give her better working hours for her family needs. On April 28, 2003, Petitioner reapplied for employment as a Corrections Officer with the Columbia County Sheriff’s Office. Knowing her past performance would be an issue and that attendance was an important issue at the jail, Petitioner stated on her April 28. 2003, application as follows: Was forced to give up my position with the Columbia County Jail back in 2001. If given the opportunity I will do whatever it takes to be sure the Columbia County Jail can depend on me. I will make sure I will report to my shift on time, no matter what the circumstances are, I hope you will give me a second chance to prove you can count on me. In the process of reviewing Petitioner’s background summary the Columbia County Sheriff’s Office became aware of some serious areas of concern in her employment history. Specifically, that she had been terminated from the Department of Corrections (DOC) New River Correctional Institute for attendance problems, and that she had poor work performance and problems with calling in at S&S Food Store. This history caused an initial recommendation against rehiring Petitioner. However, the Columbia County Sheriff’s Office was experiencing a severe staff shortage and as a result was desperately in need of new Correctional Officer. Because of the shortage, Petitioner was offered employment with the Sheriff’s Office. Petitioner was sworn in by the Sheriff as a Correctional Officer on November 6, 2003, and given a second chance to prove she was dependable. At this ceremony, the Sheriff personally spoke with Petitioner about attendance issues and that she was being given a second chance. In response, Petitioner gave the Sheriff assurances that this time she would comply with policies. The Sheriff told Petitioner that any further attendance problems would be cause for termination. On November 7, 2003, Petitioner began working in the Respondent’s field training program under the direction of Field Training Officer Howard. Beginning on November 19, she was placed on the night shift and assigned Officer Siraq as her field training officer. The field training program uses daily observation reports (DORs) to evaluate new officers through the field training process. The program is a multi-week training program that trains a new officer while on the job. Eventually, the new officer will work all three shifts at the prison. On November 19, 2003, Officer Siraq was not at work due to illness. Therefore, Petitioner was assigned Officer Chad Sessions as her field training officer. Petitioner was working in the control room at the Columbia County Jail with Officer Sessions, who engaged in a series of very explicit phone calls in Petitioner’s presence. In his telephone conversations he made a number of sexually explict statements, including stating he was going to fuck the girl he was speaking about; that he was “the candy man” and that he was coming to have sex with the girl and that he would do so from behind. Petitioner told Officer Sessions several times that she did not want to hear the sexual comments, but he nonetheless continued in his conversation. Officer Sessions engaged in three such phone calls lasting about 20 minutes. After repeating that she did not wish to have to deal with these types of comments, Petitioner left the control room approximately four times so that she did not have to listen to Officer Sessions conversations. On the daily observation report completed by Officer Sessions for that date, Officer Sessions wrote that Petitioner had engaged in several phone calls and breaks and that she needed to improve on staying at her assigned post without as many distractions. Petitioner spoke to Officer Sessions about his comments on the Daily Observation Report and told him that she did not agree with his statements and refused to sign the document because of her disagreement with him. Officer Sessions took the DOR to Corporal Barcia and informed Barcia that Petitioner would not sign the agreement. He thereafter came back to Petitioner and told her that Barcia had ordered the Petitioner to sign the DOR. Petitioner signed the DOR, but did not put any comments on the DOR in the “Trainee’s Comments” Section regarding her disagreement with Officer Sessions or the reason she left her post in the control room. At the end of the shift on the morning of November 20, 2003, Petitioner drafted a memorandum to now Lieutenant Little requesting time off from work. Petitioner did not mention the incidents with Officer Sessions that had occurred on her shift. In the memorandum, Petitioner stated that she had spoken with Beverly Jackson during her swearing-in ceremony regarding specific days off, and that Ms. Jackson had approved the time off. Also, Petitioner spoke to Officer Howard about the incident on the morning after her shift that ended on November 20, 2003. Petitioner told Officer Howard about Officer Sessions’ remarks and the fact that she initially refused to sign the DOR and Corporal Barcia’s orders to sign the DOR. Officer Howard was concerned when Petitioner gave him this information and told her that he would speak with Lieutenant Little. Officer Howard contacted Lieutenant Little to report the information given to him by Petitioner. Lieutenant Little was on vacation and received the call at home. Officer Howard stated that he needed to report this complaint because Petitioner stated she was uncomfortable with the language used by Officer Sessions in the control room. Lieutenant Little advised Officer Howard that the issue would be addressed upon his return from vacation. Upon returning to work on November 24, 2003, Lieutenant Little called a meeting to discuss Petitioner’s complaints about Officer Sessions’ DOR and phone calls. Petitioner attended the meeting, along with Officer Howard and Corporal Barcia. At this meeting, Petitioner stated that she disagreed with the DOR that Officer Sessions had issued her for November 19, 2003. Specifically, she disagreed with the ratings she received on the DOR. Petitioner was asked why she had not included her disagreements in the “Trainee’s Comments” Section of the DOR. After receiving no reply, Lieutenant Little instructed her that she could make those comments on the DOR, but that they would need to be initialed and dated accordingly. In the comments Section, Petitioner wrote: I had three phone calls, each one was no longer than three-four minutes. The phone calls were in regards to my children. (Staying in assigned post) Ofc[.] Sessions had me escorting I/M’s back and forth and taking paperwork to Ms. Morgan and other sections. When Ofc[.] Sessions was on the phone I would exit the main control room because I didn’t want to hear about his personal business. [Initialed: KM and dated 11-24-03] With regard to her complaints regarding Officer Sessions’ personal phone conversations, Petitioner was very vague in her recount at the meeting. Lieutenant Little asked Petitioner to state with particularity her complaint. She was asked to reduce her complaints to writing and to be as factual and detailed as she could so that Lieutenat Little could properly investigate the matter. Petitioner claims that Lieutenant Little instructed her not to be detailed about the incident. However, Petitioner’s recollection is not given any weight. He instructed her to write the incident report at a sergeant’s desk that was available to write her report. Corporal Barcia sat in the room with Petitioner while she wrote the report since the office was also used by him. Petitioner claimed she felt intimidated by the presence of Corporal Barcia. However, Corporal Barcia did nothing to intimidate her. He did not ask questions about her report or read her report. Petitioner’s testimony regarding her feelings of intimidation is not credible. Lieutenant Little forwarded the report up the chain of command to Captain Smithey. Officer Sessions was disciplined for his conduct and reprimanded in writing regarding his unprofessional phone conversations of November 19, 2003. Officer Sessions was also required to write a letter of apology to Petitioner. The letter of apology was also placed in Officer Sessions’ personnel file. Petitioner testified she never received Officer Sessions’ letter of apology. At some point after his return from vacation, Lieutenant Little received Petitioner’s memo requesting leave from work. After he reviewed the memo and noted Petitioner’s statements regarding Ms. Jackson’s approval, Lieutenant Little contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson told Lieutenant Little that she had not given any such approval and would not have done so since she did not have the authority to grant leave. Based on the information from Ms. Jackson and the fact that Ms. Jackson has no authority to approve leave requests for any Columbia County Sheriff’s Office employees, Lieutenant Little concluded that Petitioner was untruthful in her statements in the memorandum about time off. Such untruthfulness was a serious matter regarding Petitioner’s appropriateness to remain employed with the Sheriff’s Office. Lieutenant Little was also very concerned with the fact that Petitioner was already requesting time off since her attendance had been an issue in the past and she was being given a second chance for employment. In the meantime, as part of the field training program, Petitioner was assigned Officer Harris as her field training officer for a different shift. On November 28, 2003, only eight working days after being sworn in by the Sheriff, Petitioner became ill with a flu- type illness. There was no credible evidence that she was incapacitated by this illness to the point that she could not personally call her supervisor as the policy required. As in the past, Petitioner failed to report for duty and failed to properly call-in to her supervisor. This failure violated the Columbia County Sheriff’s Office policy for such absences. On November 29, 2003, Officer Harris, noted on Petitioner’s DOR that she exhibited unacceptable performance with regard to Columbia County Sheriff’s Office policies and procedures; namely, Petitioner needed to utilize the proper chain of command when calling-in. Petitioner wished to explain why she did not follow the call-in policy. Below Officer Howard’s comments, Petitioner inserted comments in a section of the DOR designated for field training officers’ use. Because her comments were in the inappropriate Section Petitioner was instructed to white-out the comments and to place them in the proper section titled, “Trainee’s Comments.” The original, whited-out statement read: The morning I called in Officer Howard was contacted first when I called main control. Mrs. Harris wasn't in yet and didn't have her number. When I called back at the main control, I was directed to speak with Corporal Green. The comments that Petitioner rewrote in the “Trainee’s Comments” Section on the same date were significantly changed by Petitioner to read as follows: The morning I was unable to come to work my husband contacted Ofc[.] Howard [and] was instructed to call Mrs. Harris[.] [W}hen he called Mrs. Harris wasn’t in yet so he was instructed to call back in 20 min[utes]. He was told to relay the message to me, for me to call Cpl. Green. I did so at 1:30 p.m. According to this account by Petitioner, she only made one phone call at 1:30 p.m. to her supervisor well-after the start of her shift and in violation of the Sheriff’s Office policy. Petitioner’s phone records reveal that five telephone calls were made on November 28, 2003, with four of them to the Columbia County Sheriff’s Office Jail. Petitioner testified that her husband, Ralph Morgan, made the first three telephone calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to her comments written on her November 29, 2003, DOR, the Petitioner testified that she telephoned the Jail two times that day, once at 6:24 a.m. and again at 1:20 p.m. However, Petitioner’s memory of the calls she made is not credible, given the more credible written statement she made on the DOR shortly after her absence occurred. Petitioner admits that none of the phone calls, either from Petitioner’s husband or herself complied with the Columbia County Sheriff’s Office policy regarding sick leave. On December 2, 2003, Lieutenant Little sent a memorandum to Captain Smithey recommending that the Petitioner be considered for termination. Lieutenant Little formulated his opinion based upon: Petitioner’s past attendance problems with the Columbia County Sheriff’s Office; her most recent failure to follow Columbia County Sheriff’s Office policy with regard to calling-in and attendance; and her untruthfulness with regard to her request for days off. As a result, and based upon the Sheriff’s recent imposition of strict probationary guidelines on Petitioner’s recent hiring Captain Smithey concurred in the recommendation. There was no evidence that either Little’s or Smithey’s actions were related to any complaint Petitioner had made regarding Officer Sessions. Captain Smithey forwarded the recommendation to the Sheriff. The Sheriff consulted with members of his command staff and reviewed Petitioner’s performance during her probationary period. The Sheriff determined that Petitioner had not satisfied the agency’s standards for the probationary period and had failed in the second chance he had given her. On December 3, 2003, the Sheriff withdrew the Petitioner’s appointment as a probationary Corrections Officer. At hearing, Petitioner admitted that the Sheriff’s decision to terminate her had nothing to do with her complaints to Lieutenant Little about Officer Sessions, but was rather based upon Petitioner’s failure to follow Columbia County Sheriff’s Office call-in procedure. She felt that it was Lieutenant Little and other Officers who had conspired against her to get her terminated. However, there was no credible evidence to demonstrate that such a conspiracy existed. After Petitioner’s termination she contacted the Sheriff to schedule a meeting to discuss her termination. At that meeting, Petitioner spoke with the Sheriff about her complaints regarding Officer Sessions and the issues she had with her DORs. The Sheriff was unaware of the issues she had with Sessions. Specifically, Petitioner claimed that her DOR had been altered or whited-out because she had made complaints to her supervisor in it. Petitioner brought with her to the meeting correct DORs from Officer Sirak as well as the November 29, 2003, DORs. Petitioner told the Sheriff that she believed her DORs were altered in retaliation for a complaint she had made to one of her supervisors. The Sheriff testified that Petitioner did not talk to him about anything with regard to Officer Sessions or sexual harassment during the post-termination meeting. The Sheriff explained to Petitioner that his decision to terminate her was based upon her failure to follow Columbia County Sheriff’s Office procedures. With regard to Petitioner’s DORs, the Sheriff made copies and told her that he would look into her concerns. The Sheriff investigated Petitioner’s concerns, but discovered that all of the DORs that had been changed were changed in order to correct errors made on them. There was no credible evidence to the contrary regarding these DORs. The Sheriff did not discover any reason to change his decision regarding Petitioner’s termination. During discovery, Petitioner originally claimed that it was her November 19, 2003, DOR that had been whited-out, and that she had physically witnessed Officer Howard white it out in his office. Petitioner later recanted her testimony and stated that it was in fact her November 29, 2003, DOR which had been whited-out. With regard to her November 29, 2003, DOR being whited-out, Petitioner changed her testimony to reflect that she witnessed Officer Howard white-out the DOR on November 29, 2003. Despite Petitioner’s numerous attempts to explain her version of the facts with regard to who did what and when to her DORs, even her modified testimony is inconsistent with the facts on record. The record reflects that Officer Howard was not on duty on November 29, 2003. He was off for the holiday beginning on November 27, 2003. His time card reflects that he was on annual leave for the Thanksgiving holiday starting on November 27, 2003, and that he did not return to work until the following, Monday, December 1, 2003. The 29th was a Saturday and Officer Howard worked weekdays and did not go to the jail on the 29th. Regardless of the fact that Petitioner could not have seen Officer Howard white-out her DOR because he was not at work on the day she specified, Petitioner’s testimony with regard to the DORs themselves also proved to be inconsistent with the facts. Petitioner asserted that the reason her DOR was whited- out was that she had included comments regarding sexual language she had overheard Officer Sessions use on the night of November 19th. However, upon examination of the November 29th DOR in question, it was discovered that Petitioner did not mention anything at all with regard to sexual comments or Officer Sessions, but that the comments she had inserted were actually her attempts at justifying why she had failed to properly call-in to her supervisor the day before. As indicated earlier, the reason the comments were whited-out was that Petitioner had inserted them in a Section designated for field training officer use only. As a result, Petitioner was required to move them to the appropriate Section designated as “Trainee’s Comments.” At hearing, Petitioner produced, after her deposition had already been taken, a new DOR allegedly drafted on November 28, 2003, by Officer Harris. This DOR was not contained in Petitioner’s personnel file and it is not known where the newly discovered DOR came from. There is no record evidence, other than Petitioner’s own assertions, that Petitioner’s November 28th DOR is authentic. Suspiciously, Petitioner did not produce this document in response to Respondent’s Request for Production. Nor did Petitioner mention it in her Answers to Interrogatories. She testified that she did not find it in all her papers until after her deposition. Petitioner’s testimony regarding this newly discovered DOR is not credible. Finally, Petitioner offered evidence regarding purportedly similary-situated employees. These employees were Charles Bailey, Thomas Daughtrey and Chad Sessions. Officer Charles Bailey had been employed with Columbia County Sheriff’s Office two times in his career. During his first employment, Officer Bailey was terminated for attendance problems similar to the problems Petitioner experienced in her employment with Columbia County Sheriff’s Office. When Officer Bailey was hired back, he was given strict probationary terms to abide by, including that he: be on time for all scheduled tours of duty; follow all Columbia County Sheriff’s Office call-in procedures; and to generally abide by all Columbia County Sheriff’s Office policies and procedures. During his second- chance employment Officer Bailey abided by all of the conditions set out for him. He did not abuse sick leave and he called-in properly pursuant to Columbia County Sheriff’s Office policy when he needed to take leave. Officer Bailey left the Columbia County Sheriff’s Office on good terms after his second employment. Officer Bailey is not similarly situated in any relevant aspects to Petitioner. Unlike Petitioner, Officer Bailey abided by all of his conditions upon rehire and properly followed Columbia County Sheriff’s Office call-in policy when he missed time. Officer Thomas Daughtry was a new employee and in the field officer training program. He was not a second-chance employee. During his training he missed several days, however, despite the fact that Officer Daughtrey missed some days during his training, Officer Daughtrey followed Columbia County Sheriff’s Office call-in policy every time he requested time off. Nevertheless, because he did in fact miss days during his training, Officer Daughtrey was given unsatisfactory reviews and was required to re-do part of his training. Because he properly called in and he was not a second-chance employee, Officer Daughtrey is not similarly situated to Petitioner in any relevant aspects. Officer Chad Sessions was employed two times with Columbia County Sheriff’s Office. Both times Officer Sessions resigned under good terms. Petitioner has attempted to compare his second employment with that of her second, probationary employment, specifically with regard to a written reprimand Officer Sessions received for failure to follow call-in policy on September 10, 2004. When Officer Chad Sessions was given a reprimand for failing to call-in properly on September 10, 2004, he was not a probationary trainee. Rather, Officer Sessions was a Field Training Officer, and the reason he was unable to phone the jail was due to the phone outages caused by Hurricane Frances. Officer Sessions could not phone the jail and he could not be reached because of the high winds and heavy rain produced by Hurricane Frances. Because Officer Sessions was not a probationary employee, and taking into consideration the extenuating circumstances surrounding the incident, Lieutenant Little decided to issue him a written reprimand. Furthermore, there is no record evidence that Officer Sessions came to the Sheriff’s Office with a prior termination and a poor employment history similar to that of Petitioner. As a result, Officer Sessions is not similarly situated to Petitioner in all relevant aspects.
Recommendation Based on upon the above findings of fact and conclusions of law, it is RECOMMENDED that the Petition For Relief should be dismissed. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of November, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katrina R. Morgan 4777 Shavesbluff Road Macclenny, Florida 32063 T.A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Leonard J. Dietzen, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rules 11B- 27.0011(4)(a), 11B-27.0011(4)(b), and 11B-27.0011(4)(c), Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Osborne was employed as a police officer with the Winter Haven Police Department. Approximately 15 times during 2001, Osborne picked up a prostitute, Sandra Cornell (Cornell), in his police vehicle and had sex with her while he was in his police uniform. The first time Osborne picked up Cornell, he was in his police car parked near a church in Winter Haven, Florida. Cornell was walking down the street, and Osborne called her over to the police car and asked her what she was doing that night. She told him that she was trying to make some money, and he told her to get in the back seat of the car. She got in the vehicle, and he drove to a spot near Publix and a nursing home. He told her, "Nobody will bother a police car." They got out of the car, and she performed oral sex on him. Osborne paid her $10 and gave her some cigarettes. The second time that she had sex with Osborne, he gave her $5. However, he discontinued paying Cornell for her services after their second encounter. Cornell continued to have sex with Osborne without payment, believing that he would arrest her if she did not continue to have sex with him. Another time Osborne picked Cornell up in the parking lot of the Regency Inn and told her to get in the back of the police car and lie down. She did as she was told. Osborne drove them to a water tower near the Regency Inn, where they had sex. Another time Osborne, while in his police uniform, picked Cornell up in the early morning hours and took her to Silver Lake in his police car. Osborne was on duty at the time. While the couple was having sex, Osborne received a police call. He left Cornell at Silver Lake so that he could respond to the call, and she had to walk back to town. The Winter Haven Police Department conducted an Internal Affairs investigation of Osborne's activities with Cornell. On July 19, 2002, Osborne was interviewed under oath by Lieutenant Katy Goddard and Lieutenant Jim Allen. During the interview, Osborne was asked the following questions and gave the following answers under oath: Q. Have you ever rode uh Sandy Cornell in your patrol vehicle . . . A. No, I have not. Q. . . . let me finish the question--in an unofficial business? A. No. * * * Q. Have you ever had sex with Sandy Cornell on duty? A. No, I have not. Q. Have you ever had sex with Sandy Cornell off duty? A. No, I have not. On December 6, 2002, the Department filed an Administrative Complaint against Osborne, alleging that the Criminal Justice Standards and Training Commission had issued Osborne an auxiliary law enforcement certificate and a law enforcement certificate on December 28, 1994. Osborne filed an elections of rights form on January 8, 2003, requesting an administrative hearing and disputing only the factual allegations dealing with having sexual relations with Cornell and soliciting another prostitute for sex. Osborne has not contested that he is a certified auxiliary law enforcement officer and a certified law enforcement officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jimmy Osborne did not violate Subsection 943.1395(6); finding that Jimmy Osborne did violate Subsection 943.13(7) and Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code; and revoking his certification as an auxiliary law enforcement officer and a law enforcement officer, pursuant to Subsection 943.1395(7). DONE AND ENTERED this 9th day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 9th day of October, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jimmy Osborne 902 9th Street, Northeast Winter Haven, Florida 33881 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto, respondent, Charles P. Williams, was a counselor at South Miami Heights Elementary School (SMHES) in Miami, Florida. He was under a continuing contract with petitioner, School Board of Dade County (Board). Respondent has been a teacher or counselor in the school system since 1967. On August 19, 1987 the Board voted to dismiss Williams without pay effective that date for "immorality and misconduct in office." The action stemmed from respondent being arrested in May, 1987 and charged with possession of cocaine, a felony. A Notice of Specific Charges was later issued on November 30, 1987 setting forth the charges in greater detail. On the evening of Friday, May 22, 1987 the City of Miami Police Department assigned a special task force unit known as the Street Narcotics Unit (SNU) to conduct a reverse sting operation in an area of the city where narcotics were being sold. In such an operation, the police officers became the sellers of drugs and then arrested their customers. On this day, SNU selected the area around 15th Avenue and 68th Street, a "known narcotic area" of the city. The officers took over the complete block and "moved out" all known sellers and lookouts. The officers wore baggy street clothes and were given cocaine rock, powder cocaine and marijuana to sell to buyers. They also carried weapons and a badge, both hidden. One officer was Sharon Troy who was assigned the job of "selling" drugs on the east side of 15th Avenue and 68th Street. Officer Troy is an experienced officer who has participated in some ten to fifteen sting operations and has made approximately 150 to 200 arrests. Around 10:58 p.m. that evening, Officer Troy was approached by respondent who happened to be in the neighborhood. Williams asked Troy where he could find some narcotics. She replied, "Well, what do you want?" Williams said "cocaine." When offered a choice between rock and powder cocaine, Williams chose "rock." Officer Troy then sold him two "rocks" for $20 cash. After the exchange of money and drugs took place, Officer Troy identified herself as a police officer and arrested Williams. She immediately placed the $20 cash and the two rocks in an empty pocket. Williams was escorted by Officer Troy and another officer to a nearby apartment complex that had been converted into a temporary holding area. At the holding area, Officer Troy elicited certain information from Williams and filled out an arrest affidavit received in evidence as petitioner's exhibit 4. The money and drugs were placed in an envelope, the envelope was sealed with tape, and Officer Troy placed her name, the contents and the arrestee's name on the outside of the envelope. The envelope was then placed in an evidence box which was carried to the property unit of the Police Department. Williams was transported from the holding area to the Metro-Dade jail where he was fingerprinted, photographed and placed in a small cell with approximately twenty to thirty other arrestees. He remained there until Monday morning. After the evidence was taken to the property unit, Officer Troy retrieved the envelope, broke the seal and placed the money and drugs into two separate envelopes. The envelopes were resealed with evidence tape and given to the property specialist who placed them in the vault. The sealed envelope with the drug was not broken until the contraband was hand- delivered to the Metro- Dade laboratory on September 9, 1987. There, a Metro-Dade criminalist tested the substance and determined the rocks contained 0.2 grams of cocaine, a controlled substance. The envelope was resealed and remained in that posture until final hearing. The seal on the money bag was not broken until the bag was opened in the undersigned's presence at final hearing. Therefore, it is found that the chain of custody was not broken between the time of the arrest and the submission into evidence of the money and drugs. A few days after respondent's arrest, a Metro-Dade social worker heard a radio news report on a Spanish radio station, WQBA, concerning the arrest of an unnamed SMHES counselor. At SMHES, a few secretaries made comments about respondent's arrest and most of the faculty asked the principal about the matter. There was no television or newspaper commentary on the arrest nor was there any indication that students, parents or other community members were aware of the same. According to Dr. D. Patrick Gray, who has been accepted as an expert in the area of ethics and professional standards for educators, respondent's effectiveness as a counselor and employee of the Board has been seriously impaired by virtue of his arrest for possession of cocaine. This opinion was echoed by the school principal. It was also Dr. Gray's opinion that respondent has violated the standards of ethical conduct of the teaching profession. More specifically, Dr. Gray opined that Williams failed to maintain the respect and confidence of his colleagues, students, parents and other community members. Both at hearing and at a conference for the record, respondent denied that he purchased the drugs. Instead, he maintained that he was in the neighborhood that evening searching for a funeral home to ascertain the time of a family friend's funeral to be held on Saturday, May 23. According to Williams, Officer Troy approached him and, after asking what he was doing, without any cause handcuffed and arrested him for purchasing cocaine. Although there are two funeral homes within a few blocks of where Williams was arrested, his story is not deemed to be credible and is accordingly discredited. Williams received a satisfactory evaluation at SMHES for school year 1986-87. He was the school's only full-time counselor and worked with troubled students. Ironically, he was in charge of the school's "say no to drugs" program and the youth crime watch" program. His principal described him as having done a good job at school and characterized his work as "very satisfactory." There is no evidence of any prior disciplinary action against the licensee. Williams stated he loves the teaching profession and desires to continue teaching. He has successfully completed a court imposed "Self-help Program" which required, among other things, that respondent submit himself to a weekly test for drugs. After completion of the program, the court withheld adjudication of guilt and authorized the expunction and sealing of respondent's criminal record. Williams has taught for some twenty years, and during his recent suspension, has taken additional college course work to sharpen his education skills.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be suspended from his position for two years, said suspension to be retroactive to August 19, 1987. The remaining charge should be dismissed. DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Burton B. Griffin, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 56974 on August 3, 1979. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO). This controversy involves charges that respondent (a) unlawfully possessed drug paraphernalia in October 1992, (b) unlawfully possessed a crack pipe in July 1992, and (c) falsified an arrest and booking docket for one Beverly Hay in July 1992. In 1991, respondent was assigned to the Zone 3 Community Problem Response Team (team). The team, which consisted of 6 to 8 officers at any given time, worked the "core city downtown" area, which was the most crime-ridden, dangerous and violent part of the City. As a member of the team, respondent often engaged in the dangerous task of performing undercover narcotics work, which required him to make undercover purchases of drugs from local dealers. Through undercover assignments, he also apprehended local prostitutes. In order to effectively carry out his responsibilities as an undercover agent, respondent was required to wear disguises, which included such "props" as civilian clothes, a beard, and glasses. In addition, respondent would drive an unmarked car and carry a bottle of liquor and crack pipes. The pipes were placed in the ashtray of the car and in his shirt pocket to convince the drug dealer that respondent was a "street person" and not an undercover law enforcement officer. When not being used, the props were kept in a bag in the trunk of the vehicle. On July 13, 1992, respondent and his partner were flagged down by a female prostitute named Beverly Hay on a downtown street. After solicting respondent, Hay was told she would be charged with prostitution, a misdemeanor. She was also in possession of what appeared to be a crack pipe, another misdemeanor. Hay had a previous record of prostitution arrests, and she did not want to be incarcerated for a long period of time. In return for not being arrested, she agreed to act as a confidential informant and make purchases of drugs from various crack houses in the neighborhood. With this information, JSO could then obtain search warrants for each of the illicit houses. After obtaining the approval of his supervisor not to arrest Hay, respondent released Hay but gave her his pager number and instructions to call him as soon as she was ready to make a buy. Respondent kept the crack pipe in his vehicle as leverage to insure that Hay would fulfill her side of the agreement. In other words, if she did not fulfill her part of the agreement, the pipe would then be used as evidence to arrest her for possession of drug paraphanalia at a later date. Before she was released, Hay was told that this would happen. This type of arrangement was not unusual for officers working in undercover narcotics. As of July 16, 1992, Hay had still not provided the agreed upon assistance. That evening, respondent observed Hay in the 700 block of West Monroe Street. After apprehending her, respondent learned that Hay did not intend to provide any assistance. Accordingly, he prepared an arrest and booking report in which he stated that Hay was being arrested for possession of the crack pipe which he had found on her three days earlier. In the "narrative" portion of the report, however, respondent stated that Hay had the pipe in her possession on July 16, rather than the correct day of July 13. The report and crack pipe were filed with the JSO, and Hay served approximately 16 days in jail before being released. Respondent filled out the report in this manner because both he and his partner were unsure how to fill out a "deferred arrest" for a misdemeanor offense. Indeed, while most witnesses in this case were generally familiar with the procedure for a felony deferred arrest, no one had ever made a deferred arrest for a misdemeanor. The report would have been accurate had respondent simply stated that Hay was arrested with the pipe on July 13, released that day on the condition that she would provide information, and after failing to perform under her agreement, she was again arrested on July 16 for the original offense. Respondent candidly acknowledged that in hindsight he was wrong and had used poor judgment in filling out Hay's arrest report in the manner that he did. Even so, there was no intent on his part to intentionally violate any JSO policy, Commission rule or state law. More specifically, he did not intend to falsify an official record as charged in the administrative complaint. Rather, the report was incorrectly prepared due to respondent's lack of knowledge on how to make a deferred misdemeanor arrest. On October 27, 1992, the JSO internal affairs section searched all team vehicles. While searching respondent's vehicle, the section found two crack pipes (and other props) that were used by respondent during his undercover work. Even if the pipes were used as props, under a JSO general order the pipes should have been returned to the property room at the end of each shift. By failing to turn them in, respondent unintentionally violated the JSO policy. In addition, by not turning in the Hay pipe for three days until she was arrested, respondent unintentionally violated the same policy. Respondent had found the two pipes used as props laying on a street during one of his many sweeps of known drug areas. Since they were necessary props for his undercover work, he kept them in a bag with his other props. Although the JSO had an informal policy calling for paraphanalia to be checked out of the property room before each undercover assignment, respondent was unaware of this requirement, and he knew of no other officer who had ever done the same. In addition, respondent believed the items had no intrinsic value, and under another JSO general order, unclaimed property having no intrinsic value did not have to be turned into, or checked out of, the property room. At the same time respondent was using the pipes as props, it was common knowledge among JSO officers that another JSO strike force, with its supervisor's approval, was using similar props without turning them into the property room each day. Therefore, it is found that respondent could have reasonably believed he was not violating any general order by keeping his props in a bag in the trunk of his vehicle. In any event, there is no suggestion, or even a hint, that the three pipes were used for any purpose other than official police business. For violating a general order pertaining to "Competency and the Handling of Evidence," respondent received a written reprimand and a limited suspension of sixty working days in 1993. The JSO did not sustain the allegations pertaining to unlawful possession of contraband and falsifying a report. Under Rule 11B-27.003(2), Florida Administrative Code, the employing agency (JSO) is required to forward to the Commission a completed form reflecting only those violations that are sustained. For reasons unknown, in the form filed with the Commission, the JSO internal affairs section incorrectly recited that all allegations had been sustained. Thereafter, the Commission issued an administrative complaint, as amended, seeking disciplinary action against respondent's law enforcement certification for the unsustained allegations. Except for the discipline meted out by JSO in 1993, respondent has had an exemplary career as a law enforcement officer, having served with various departments since 1979. He has continued his employment with the JSO since this incident and is now in a position of special trust as an evidence technician. At hearing, his superiors lauded his integrity, honesty, work ethic and dedication as a police officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the administrative complaint, with prejudice. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 16th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2909 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 4. 5-8. Partially accepted in finding of fact 12. 9-13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. Rejected as recitation of testimony. Partially accepted in finding of fact 12. 18-24. Rejected as recitation of testimony. 25. Rejected as being irrelevant. 26-27. Rejected as being recitation of testimony. 28-29. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. Rejected as being unnecessary. 33 Rejected as being irrelevant. 34-49. Rejected as being recitation of testimony. Partially accepted in finding of fact 11. Rejected as being recitation of testimony. Respondent: Partially accepted in findings of fact 1 and 17. Partially accepted in finding of fact 17. Partially accepted in finding of fact 3. 4-7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 14. 12-14. Partially accepted in findings of fact 12 and 13. 15-16. Partially accepted in findings of fact 13. 17. Rejected as being unnecessary. 18-29. Partially accepted in findings of fact 5-11. 30-34. Partially accepted in findings of fact 15 and 16. 35. Partially accepted in finding of fact 11. 36-42. Partially accepted in finding of fact 17. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street Jacksonville, Florida 32202-2715 T. A. Delegal, III, Esquire 5530 Beach Boulevard Jacksonville, Florida 32207 A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed the violations charged in the Administrative Complaint, involving possessing and introducing onto the grounds of a state correctional institution, certain controlled substances and, if so, what if any penalty is warranted.
Findings Of Fact The Respondent, Erlene Stewart, has been employed as a correctional officer at Union Correctional Institution (UCI). She was so employed on February 1, 1999, and had been employed there for almost five years at that time. The Respondent was working on Saturday, January 30, 1999. On that day, officers at UCI examined employees coming to work by conducting an "Ion Scan" of employees to attempt to detect any drug or drug residues on or about their persons when they entered the institution to go on duty. The Respondent was subjected to such an Ion Scan and successfully passed it. Thus, she was aware that a drug detection effort was being conducted on Saturday, January 30, 1999, at UCI. February 1, 1999, was the Monday after that Saturday. The Respondent was working that day in tower number five of UCI. She had driven to work that day in the black Pontiac Grand Am in question, which is registered in her name. She was working on the 8:00 a.m. to 4:00 p.m., shift on that Monday. It was very unusual for a drug detection operation to be conducted on that Monday, immediately succeeding the Ion Scan drug detection operation which had been conducted on Saturday, two days before. Such a drug detection operation was conducted in the parking lot of UCI on Monday, February 1, 1999, however, using a drug detection dog. It was very unusual for a drug detection dog to be used so soon after an Ion Scan drug detection operation and also unusual for the dog to be used at 12:30 in the afternoon. The Respondent was surprised to find that a drug detection dog was being used in the parking lot of UCI on February 1, 1999. When the Respondent came to work on that day she locked her car leaving the windows slightly cracked and went inside to go on duty. Later that day, at approximately 12:30 p.m., a drug detection dog, handled by Sergeant Box of UCI, was examining vehicles in the parking lot and "alerted" to the presence or odor of narcotics inside or on the Respondent's vehicle. The dog had been trained and certified to be capable of passively alerting to the odors of four narcotics: marijuana, powdered cocaine, crack cocaine and heroin. After the dog alerted to the presence of contraband drugs in or on the Respondent's vehicle, the Respondent, who was then working in tower number five, was relieved of duty and summoned to her vehicle in the parking lot on the grounds of UCI. When she arrived in the vicinity of her vehicle, she was informed that a drug detection dog had alerted to her vehicle. She provided a written consent, to the officers present, to a search of her vehicle. The Respondent had to unlock her vehicle in order for the drug detection officers to begin their search of its interior. Upon gaining access to the interior of the Respondent's vehicle, Sergeant Mobley of Hamilton Correctional Institution, discovered an aluminum foil package containing a white powder suspected to be cocaine, on the passenger's side of her vehicle. Sergeant Mobley turned that package over to the custody of Inspector Bailey. Sergeant Dugger found what appeared to be marijuana on the driver's side of the Respondent's vehicle. Prior to his entry into the vehicle, Sergeant Dugger and Inspector Bailey had observed through the window what appeared to be marijuana and marijuana seeds on and about the driver's seat. The Respondent is familiar with the appearance of marijuana and cocaine. Moreover, she is aware that cocaine is commonly wrapped in aluminum foil. Her former husband had been known to use cocaine according to the Respondent's testimony. Inspector Bailey took custody of the suspected cocaine and marijuana and conducted two tests on both substances. The results of his field test and Ion Scan test were positive for marijuana and cocaine. The evidence was then turned over to Inspector Yaw who conducted another Ion Scan test on the white powder confirming it as cocaine. Sergeant Dale Pfalzgraf of the Union County Sheriff's Office, was summoned to UCI on that day, after the suspected drugs were located in the Respondent's vehicle. Inspector Yaw turned over to him a sealed plastic bag containing what appeared to be marijuana and a tin-foil package of what appeared to be cocaine. Deputy Pfalzgraf placed the Respondent under arrest and transported her and the evidence to the Sheriff's office. He placed the evidence into a secure locker with the evidence custodian, pending its transportation to the Florida Department of Law Enforcement (FDLE) laboratory. Deputy Tomlinson of the Union County Sheriff's Office was given the evidence that was seized from the Respondent's vehicle by the evidence custodian and transported it to the FDLE laboratory in Jacksonville, Florida, for testing. At the FDLE laboratory, Allison Harms received the evidence from Deputy Tomlinson. The evidence bag remained sealed until testing was performed by Ms. Somera, the FDLE chemistry analyst. Ms. Somera tested the substances contained within the bag and positively identified them as cannibis and cocaine. The Respondent maintains in her testimony that her former husband had access to her vehicle and had used it in the last several days with some of his friends. She contends that he is a known illicit drug user (cocaine). She also states that she left the windows to her car slightly cracked for ventilation when she parked it in the parking lot on the day in question to go to work. She states, in essence, that either the illicit drug materials found in her car were placed there without her knowledge by her former husband or his friends or, alternatively, that the correctional officers involved in the investigation planted the drug materials in her car in order to remove her from employment and/or licensure as retaliation for past employment-related friction she states she had with prison authorities. She also contends that another prison employee told her in private that she was being "framed" but that that person refused to testify on her behalf because of fear of potential loss of his job. In any event, her self-serving testimony is not corroborated by any other witness or exhibit and is not credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent be found guilty of failure to maintain good moral character as defined by the above-cited legal authority and that her certification be suspended for a period of two years. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Erlene Stewart Route 1, Box 52 Sanderson, Florida 32087 A. Leon Lowry, II Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts." Shortly after beginning his association with Ms. Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on September 21, 2002. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter. If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good." More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty. S DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-9675 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky, P.A. 438 East Government Street Pensacola, Florida 32502
The Issue Whether Respondent's certification as a law enforcement officer should be suspended or revoked pursuant to Chapter 943, Florida Statutes for alleged conduct as set forth in Amended Administrative Complaint dated April 16, 1982. This proceeding was initiated by an administrative complaint issued by the Police Standards and Training Commission on May 26, 1981, alleging certain grounds under Chapter 943, Florida Statutes, for the suspension or revocation of Respondent's certification as a law enforcement officer. The case was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the case was thereafter set for hearing on September 15, 1981. Pursuant to a request for a continuance by the Petitioner, the hearing was continued and rescheduled for March 16, 1982. The case was again continued upon motion of Petitioner due to injuries sustained by its counsel. A prehearing conference was held on March 9, 1982 at which time the Criminal Justice Standards and Training Commission was substituted as the Petitioner in this proceeding, pursuant to Section 943.255, Florida Statutes. The final hearing was rescheduled for April 13, 1982. Thereafter, on March 31, 1982, L. Sanford Selvey, II, Esquire filed a Motion for Continuance based on the incapacity of Respondent's counsel, M. Howard Williams, Esquire as a result of an apparent heart attack. The motion requested that final hearing be continued until such time as Mr. Williams had recovered from his illness. The motion was granted and final hearing was cancelled by Order, dated April 7, 1982, wherein counsel for Respondent was directed to advise the Hearing Officer within thirty days as to when he anticipated medical recovery. On April 20, 1982, Petitioner filed an Amended Administrative Complaint seeking disciplinary action pursuant to subsection 943.145(3)(a), F.S. for failure to maintain qualifications for certification under subsection 943.13(4) and (7), F.S. On May 19, 1982, Petitioner filed a Motion for an Order Deeming Requests for Admissions Admitted and Amended Complaint Filed. No opposition was filed against this motion and it was granted by Order dated June 7, 1982. That Order provided that the final hearing was rescheduled for July 21, 1982, in view of the failure of counsel for Respondent to advise the Hearing Officer as to his anticipated date of medical recovery. A copy of the Order was furnished to M. Howard Williams, Esquire and L. Sanford Selvey, II, Esquire. Neither Respondent nor his counsel appeared at the final hearing on July 21, 1982. Upon inquiry by the Hearing Officer, counsel for Petitioner stated that he had previously been advised by Mr. Selvey's office that the case files of Mr. Williams had been referred by the Circuit Court to Dexter Douglas, Esquire as an inventory attorney, and that upon inquiring of Mr. Douglas' office, he was informed that two letters had been sent to Respondent informing him of the hearing date in this proceeding. Upon direction of the Hearing Officer, counsel for Petitioner again contacted Mr. Douglas' office to ascertain if any response to the letters had been made by Respondent. Counsel was advised that letters, dated June 29 and June 30, 1982, had been sent to Respondent, advising him of the date of hearing and of the need to obtain representation, but no response was received. Based upon these representations, and under all the circumstances, it was determined that adequate notice of the hearing had been provided Respondent, and Petitioner was permitted to proceed with presentation of its case as an uncontested proceeding. Petitioner presented the testimony of four witnesses and submitted four exhibits in evidence.
Findings Of Fact Respondent, Earl Junior Beagles, was first employed with the Tallahassee Police Department in January, 1967. He received certification as a "grandfathered" law enforcement officer in June of 1967. In 1979, he was a sergeant in charge of the Vice and Narcotics unit of the Police Department. (Testimony of Tucker, Westfall) In November or December of 1979, Respondent obtained $200 from the Police Department informant fund upon authorization of Police Chief Melvin Tucker. At the time, Respondent told Chief Tucker that he wanted the funds to compromise a prostitute in order to obtain access to a local drug dealer. In March, 1980, one Patricia Dalton made allegations to police officials that on December 19, 1979, Respondent had coerced her into having sexual relations with him. Specifically, she told police investigators that she was a prostitute and had previously received a telephone call from someone identifying himself as "Bill", and that they arranged to meet at a local motel. At that meeting in the motel room, they arrived at an understanding that she would furnish her services for $150. She produced a small portion of cocaine, at which point Respondent placed her under arrest for drug possession and prostitution whereupon she commenced to cry, but Respondent told her that he was sure they could work things out and make a deal. Respondent turned the cocaine over to his partner, Officer Lewis Donaldson, and told him that he would take Miss Dalton home. She alleged that she departed with Respondent and that later, at his request, she registered at another hotel under a fictitious name where he coerced her into having sexual intercourse and fellatio with him. (Testimony of Tucker, Coe) Police investigators verified the fact that Miss Dalton had been transported in a taxicab to the motel where she had allegedly met Respondent on December 19, 1979, and also that she had registered under a fictitious name at the second motel on that date. As part of the investigation, Miss Dalton was equipped with a "body wire" to enable the investigators to monitor a conversation that she had with Respondent at the Greyhound Bus Station in Tallahassee. Although the investigators observed Miss Dalton enter the bus station, they did not personally see Respondent from their monitoring location nearby. However, they were able to recognize his voice from the tape recording made of the conversation. Respondent made admissions during the conversation which gave credence to Dalton's contentions that he had had prior sexual relations with her and had not pursued criminal charges against her. A transcript of the conversation shows that he made the following statements to her: "No, you're unarrested, no charges, forget it, it's over. Call it washed clean." and "For God's sake, don't mention my deal about dropping those God-damn charges". Police records reflect that Respondent never initiated charges against Patricia Dalton and that he returned the entire amount of $200 which he had obtained from the informant fund. (Testimony of Coe, Runo, Petitioner's Exhibit 2) As a result of the investigation, Respondent was indicted for sexual battery, extortion, and bribery in the Leon County Circuit Court on April 23, 1980. On that date, Chief Tucker advised Respondent of the Dalton complaint, but Respondent denied all of her allegations of misconduct. Respondent was then suspended from his employment with the Police force pending disposition of the criminal charges. (Testimony of Tucker, Petitioner's Exhibits 1, 4) On October 17, 1980, Respondent entered a plea of nolo contendere to one count of unlawful compensation (Section 838.016, F.S.) which is a third degree felony, and one count of simple assault which is a misdemeanor. Adjudication of guilt and imposition of sentence was withheld and he was placed on probation for a period of two years. In the opinion of Chief Tucker and Lieutenant Thomas R. Coe, Jr. of the Tallahassee Police Department, Respondent's actions in connection with the Dalton incident did not meet the required standards of moral character required for certification as a law enforcement officer. After the indictment, Respondent was discharged from his employment with the Department. (Testimony of Tucker, Coe, Petitioner's Exhibit 1) Although hearsay testimony was received from a police investigator concerning another incident of sexual misconduct involving another alleged prostitute in 1977, insufficient competent evidence was received upon which to base findings of fact. (Testimony of Runo)
Recommendation That the Criminal Justice Standards and Training Commission issue a final order revoking the certification of Respondent as a law enforcement officer. DONE and ENTERED this 30 day of August, 1982, 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 30th day of August, 1982. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Earl Junior Beagles Star Route, Box 506B Tallahassee, Florida 32304 Sheriff Don R. Moreland Chairman Criminal Justice Standards and Training Commission Marion County Sheriff's Department P. O. Box 1987 Ocala, Florida 32670 M. Howard Williams, Esquire Post Office Box 382 Tallahassee, Florida 32302 William S. Westfall, Jr., Bureau Chief Bureau of Standards Division of Criminal Justice Standards & Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated Facts The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10. Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached. In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty: Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint. Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence. Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment. The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year. Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol. Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes. Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority. Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment. Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines. To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes. Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation. Other Facts The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers. FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9. While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale. Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses. As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy. Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered. Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty. Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately $1,000 per month in additional, private income. Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future. In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records. The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent. It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation. While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited. Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
