The Issue Whether the Respondent's suspension of Petitioner was in compliance with Chapter 110, Florida Statutes, and Chapters 22A-7 and 22A-10, Florida Administrative Code. Whether the Respondent's suspension of Petitioner should be sustained.
Findings Of Fact C. R. Dykes is a State Trooper employed by Respondent, Department of Highway Safety and Motor Vehicles, in the Division of Florida Highway Patrol in Pensacola, Florida. By certified mail letter dated September 30, 1977, Trooper Dykes, the Petitioner, was notified that he was being suspended for twenty-four (24) hours (three work days) without pay by the Respondent, Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, for: Conduct Unbecoming a Public Employee and Negligence of Duty, as a result of your failure to accept witness subpoenas, and your contact with civil deputies of Escambia County, Florida . . . (Y)ou failed to accept witness subpoenas and repeatedly used profanity when discussing these subpoenas with civil deputies of Escambia County. Trooper Dykes appealed this suspension. Petitioner presented testimony and documentary evidence that at least on one occasion the Respondent did not appear for a contested hearing before the County Court of Escambia County after a witness subpoena had been issued for him and the subpoena was served on Respondent by leaving it with Operator Wise at the distribution center at the Patrol Station. The subpoena was not picked up by the Respondent and the Respondent informed the court that he had not received the subpoena. On July 6, 1977, Trooper Dykes was served with a Grand Jury subpoena by Lieutenant G. C. Wiggins and Sergeant W. A. Clark who supervised Trooper Dykes and the other State Troopers in the Pensacola District. Personal service was deemed necessary. Testimony was entered that because of previous difficulty in serving subpoenas upon Trooper Dykes in the customary manner by having the Troopers pick up their subpoenas from the Radio/Teletype Operators of the Pensacola Florida Highway Patrol Station, Deputy D. L. Roland, Escambia County Sheriff's Office, served a witness subpoena upon Trooper Dykes by serving it at Trooper Dykes' home through his wife, Mrs. Dykes, who accepted service with no apparent objections at 1:30 p.m. on Friday, July 22, 1977. Trooper Dykes called Sergeant Vince Seely, now Lieutenant Seely, thereafter at 4:00 pm, on July 22, 1977, to complain about the witness subpoena served at his home address rather than at the Florida Highway Patrol Station. Lt. Seely testified that during the telephone conversation Trooper Dykes yelled into the telephone, cursed Lt. Seely and the Sheriff's Office, made unfounded accusations, and displayed unprofessional behavior, attitude, and lack of cooperation. The Respondent contended that the telephone conversation was strictly between Sergeant Seely and the Respondent; the service of the subpoena was not urgent; that 1:15 p.m. is not a reasonable time of day for a person working from midnight to 8 o'clock in the morning; that the birth of a child was imminent; and that the subpoena could have been left at the station rather than have been served at his home. There was some evidence presented that the Respondent "gave the dispatchers a hard time who informed him they had a subpoena for him."
Recommendation Sustain the agency action of suspension of Petitioner for the period of 24 hours without pay. DONE and ORDERED this 6th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 6th day of April, 1978. COPIES FURNISHED: C. R. Dykes 644 Timber Ridge Road Pensacola, Florida 32504 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Kirkman Building Tallahassee, Florida 32304
Findings Of Fact Petitioner, Cynthia Kuhn, was employed by the Pasco County Sheriff's office from January 4, 1977 and was continuously employed until she was discharged from employment with Respondent on March 8, 1989. Prior thereto, on February 16, 1989, Petitioner was demoted from the rank of lieutenant to sergeant. Petitioner was certified as a law enforcement officer in Florida in 1973 and began employment with the City of Newport Richey Police Department from 1973 until the end of 1976. Petitioner attended the Pinellas Police Academy where she graduated in the top ten percent of her class. Her class standing was number 3 in a class of 40 students. In her evaluation report from the Police Academy, she received an excellent rating in all areas except character and judgement where she received a good rating. When John Short was elected sheriff of Pasco County and took office in January, 1977, Petitioner along with several other Newport Richey Police Department employees transferred to the sheriff's office. During her first employment with the Pasco County Sheriff's Office in 1977, Petitioner was employed as a deputy sheriff working the first few months doing administrative work out of the Dade City office. For the next two years Petitioner worked in crime prevention and community services and organized a unit in the sheriff's office to function as such. Petitioner thereafter worked as the public information officer approximately four years. Petitioner was promoted to the rank of sergeant through promotional exams. During approximately 1984, Petitioner instituted the Crime Against Children's Unit and supervised that unit for a period. From that position, Petitioner took over the Detective Bureau and supervised the detectives. During 1987, Petitioner was promoted to the rank of lieutenant and took over the responsibility of supervising the special operations division which was comprised of the specialized units within the sheriff's office to include aviation and marine, traffic enforcement unit, a special deputy unit and the canine unit. From 1977 to 1987, Petitioner enjoyed an exemplary work record having received only a couple of disciplinary actions in her personnel file relative to traffic accidents with a county vehicle. At the time of Petitioner's promotion to lieutenant, she was the only lieutenant actively employed by the Respondent. Throughout her employment with Respondent, Petitioner has received numerous commendations from local citizens and civic organizations including MADD, local news organizations, public school officials, and other home owners civic associations. Petitioner received three (3) outstanding performance evaluations for the three (3) years immediately proceeding her demotion and ultimate discharge by Respondent. Petitioner's performance evaluations attested to the facts that she was completely reliable and required minimum direction; was very well informed in all phases of her work; consistently made sound decisions; definitely interested and cooperated well; was a steady and hard worker; impressed favorably those around her and her output was consistently above job requirements. Her supervisors rated her above average and sound and noted that she was very articulate; always willing to help and was very good at motivating fifteen (15) detectives that she supervised. As Petitioner's tenure as a lieutenant grew in the Special Operations Division, she began to articulate her suggestions as to staffing, priorities, procedures, and budgeting. She also became engaged in arguments and discussions with Major Bogart regarding her suggestions/differences. The more that she began to express and otherwise articulate her suggestions, her relationship with Major Bogart began to deteriorate. As a result, Major Bogart started disciplining Petitioner over minor infractions of Respondent's rules. As example, Bogart disciplined Petitioner for failure to keep him advised about citizen's complaints directed at a particular deputy after each complaint was filed. Petitioner's plan was to collect all of the information about that deputy and then forward it to Bogart for action when all of the information was gathered. This had been the usual procedure in prior actions and one which had been followed by the other male lieutenants. However, Major Bogart wrote Petitioner up for not following the proper chain of command because she did not keep him informed, step by step. During this same period, Major Bogart specifically directed a male lieutenant to wait and collect all negative information about another deputy and bring it to his attention. When Petitioner followed this exact same procedure which was authorized by Major Bogart, Petitioner was criticized and disciplined. In another incident, Major Bogart disciplined Petitioner for an infraction committed while she was off-duty. Specifically, a male lieutenant was accused of shoplifting at Sears. Petitioner came to the scene and proceeded to show her badge and conducted an investigation on behalf of that deputy. Bogart charged Petitioner with self-initiating a report and conduct unbecoming a law enforcement officer. In Petitioner's written response to the allegations, she successfully pointed out to Bogart that he was citing the wrong standard operating procedure (SOP) in his charges. Rather than drop the charges, as Bogart would do later with a male deputy, i.e., Gary Albin, he amended the charge and recommended three (3) days suspension. The Career Service Board reversed Bogart, dropped the conduct unbecoming charge and suspended the Petitioner for one day for "not keeping her chain of command advised." The male lieutenant accused of shoplifting was not disciplined for any violation despite the fact that Respondent was aware of the situation and the fact that that lieutenant did not advise his superior of the allegations as he was required to do. By 1988, Petitioner sought and was given a transfer from Bogart's Operation's Division to Road Patrol under Captain Michael Phillips. Despite Petitioner's efforts to transfer in order to escape the criticism and ire of Major Bogart, Captain Phillips continued to criticize Petitioner for minor rule infractions. As example, Captain Phillips disciplined Petitioner for a violation of rolodex updating. Specifically, Petitioner's rolodex did not contain her address despite the fact that it had her phone number. Petitioner later reviewed the rolodex files of approximately 60 other male deputies, including Captain Phillips, and they all related the same failure to completely update their rolodexes, the identical violation for which Petitioner was disciplined and none of the other male deputies were similarly disciplined. On September 20, 1988, Sergeant William Stoner, a deputy with the Pasco County Sheriff's office, was involved in a one car accident while off-duty. A van swerved in front of Sergeant Stoner's jeep and boat causing Stoner to brake hard in an effort to avoid hitting the van. As a result, the tongue on the boat trailer separated causing the trailer to jackknife and Sergeant Stoner lost his boat on Highway 19 at approximately 5:00 p.m. There was some damage to the hull and stringers on the boat, and the trailer. Petitioner was on duty and came to the scene of Stoner's capsized boat and the resulting traffic jam. Stoner was angry about the incident, however he was physically capable of putting the clutch linkage back on the jeep and moving it off the roadway. He also radioed the marina for assistance in moving his boat off U.S. 19. Petitioner noticed an odor of alcohol on Stoner's breath. Otherwise, Stoner was able to speak, walk and climb aboard the boat in the roadway. Petitioner did not believe Stoner was intoxicated to the extent that his normal faculties were impaired. Nevertheless, Petitioner phoned her supervisor, Captain Phillips, advised him of the accident and her belief that Stoner had been drinking and to initiate an Internal Affairs investigation. To that end, Phillips instructed Petitioner to have Stoner transported to the Pasco County Sheriff's office for a mandatory breathalyzer test. Petitioner was given instructions from Phillips as to the procedure to follow in the event that Stoner objected to the taking of a breathalyzer test. Stoner consented to the test without being ordered. Prior to informing Stoner of the potential Internal Affairs investigation, Petitioner asked Sergeant Sandra Reed, the backup deputy who was dispatched to assist in relieving the traffic jam, to smell Stoner's breath to determine whether or not she could determine if he had been consuming alcohol. Reed got close enough to Stoner to confirm Petitioner's suspicion that the odor was in fact alcohol. Sergeant Michael Ferrantelli also came on the scene to direct traffic. Neither he nor Sergeant Reed have ever stated that Stoner was intoxicated that day. Stoner also denies that he was intoxicated. In spite of the fact that three (3) on-scene deputies and Stoner himself denied intoxication and impairment, both Phillips and Bogart determined that Stoner was intoxicated to the extent that his faculties were impaired. Neither were at the scene nor did they speak to Stoner that night. The case was referred by Petitioner to the State Attorney's office on September 20, 1988. On or about mid-December, 1988, the State Attorney's office elected not to file charges against Stoner because "there are no witnesses who witnessed the defendant operate a motor vehicle but more importantly, there are not witnesses who testified defendant was impaired. Some witnesses say defendant was drinking but none feel he was impaired. The only evidence of impairment comes from a breath test given to defendant prior to arrest. A pre-arrest test is inadmissible and no post-arrest breath test was ever given." On February 10, 1989, Major Bogart decided that Petitioner had "botched" the DUI investigation of Stoner on September 20, 1988 and recommended her demotion from lieutenant to sergeant. Prior to Petitioner being afforded an opportunity to respond and challenge the demotion, Bogart recommended her termination based on an Internal Affairs investigation conducted after the Stoner incident. On March 8, 1989, Petitioner was dismissed allegedly for being untruthful and conduct unbecoming a deputy. Prior to questioning Petitioner, Bogart never advised her of her rights and he demoted her without considering her proffered mitigation in response to the charges. The charge of untruthfulness which was filed against Petitioner was based on statements given by Deputy Ferrantelli on February 27-28, 1989 and subsequent statements given by Sergeant Stoner on March 1, 1989 when they were questioned by Internal Affairs about the September 20, 1988 incident involving Sergeant Stoner. Internal Affairs charged Petitioner and sustained the charge of untruthfulness against her allegedly because: (1) Deputy Ferrantelli stated that Petitioner approached him at the scene and advised him that she believed that Sergeant Stoner had been drinking and she was going to make believe she did not see anything; (2) Sergeant Stoner stated that he was ordered by Petitioner not to talk to the Florida Highway Patrol; (3) Petitioner denied making such a statement to Deputy Ferrantelli and denied ordering Sergeant Stoner not to talk to the Florida Highway Patrol trooper. On reviewing Deputy Ferrantelli's statements and contrasting those statements with the statements by Petitioner, her only contact with Deputy Ferrantelli related to her assignment to him to assist in traffic control. Deputy Ferrantelli's statement to the effect that Sergeant Stoner had been drinking but that she would act like she didn't see anything is incredible in view of Petitioner's request to Sergeant Reed to get close to Sergeant Stoner to determine if he had been drinking or if she could detect an odor of alcohol, Petitioner's call to her superior, Captain Phillips, to initially advise him of her perception that she detected an odor of alcohol on Sergeant Stoner and Deputy Ferrantelli's documented past problems regarding his untruthfulness and prior disciplinary problems while under Petitioner's supervision. In this regard, Deputy Ferrantelli was previously assigned to check on a "high risk" inmate every fifteen minutes and to verify his checks in a sworn documentation which was used to verify that the checks were in fact made. Deputy Ferrantelli did so while the inmate had been released from prison and therefore the checks could not have been made despite the fact that he swore that he had made the checks every 15 minutes as he recorded them on the sworn document. Deputy Ferrantelli was not discharged despite Respondent's contention that the penalty for untruthfulness is discharge. Deputy Ferrantelli admitted and it was found that he was untruthful in the past and he was not discharged for such untruthfulness. Other indicia of Respondent's disparate treatment as relates to Petitioner is evident based on the fact that Deputy Ferrantelli was given a polygraph exam to determine the truthfulness of his statements and Petitioner, despite her request to take a polygraph exam, was denied such an opportunity. This evidence is a clear case of disparity and was not explained by Respondent. 1/ Secondly, a review of Sergeant Stoner's statements during questioning by the Internal Affairs personnel reveal that the interrogator, Roger Hoefs, was slanting his questioning in a manner to obtain a result which would justify his later decision to sustain the charges levelled against Petitioner. Specifically, Sergeant Stoner's initial statement, in regard to Petitioner's statement to him "I don't think it's a real good idea for you to be talking to him" (a reporter) gave no indication of an order. However, when the Internal Affairs personnel rephrased their questioning to Sergeant Stoner, Petitioner's statement became an order. There's no indication that the opinionated statement to Sergeant Stoner could have met a definition of an order as first stated without regard to how Sergeant Stoner may have interpreted it almost six months after the alleged statement was made. Significantly, Sandra Reed denied that Petitioner made any statements to her regarding any effort to cover up anything of any sort or that she, for that matter, heard any rumors respecting any alleged cover up. This is so despite the fact that in the manner that the questions were put to Reed (very suggestive), she was emphatic on the fact that Petitioner never, in any manner, indicate that she was going to help Stoner or to treat him differently than she would any other member of the public. In this regard, Reed thought that Petitioner was perhaps trying to shield Stoner from the press and even made the remark "that press guy is all over him." (Respondent's Exhibit No. 4, Reeds I. A. Statement Page 7.) The suggestive questioning continued by the remark "OK well . . . but removing him from the scene . . . did it, in fact, seem odd to you . . . considering the whole investigation - as how it should have gone." Petitioner had remarked to Reed that he (Stoner) dumped his boat and "I think he's been drinking. ." The I.A. interrogator remarked that "OK but that was brought out immediately [upon her arriving at the scene]." The suggestive questioning by Hoefs continued by the following question "and how quickly after that was it that she had you kind of push . . . get him out of there?" Respondent's exhibit 4, Reed's I.A. statement page 8. The suggestive questioning continued even though Reed remarked that she had denied any alleged cover up by Hoefs remark during a question to the effect that "he had sworn testimony that Petitioner told more than one individual on the scene that 'Stoner is drunk' and I'm not going to see it." To that suggestive question, Reed remarked that Petitioner never told her that or anything resembling that statement as Hoefs suggested in his questions to Reed. Other indicia of the faulty conclusions reached by the Internal Affairs investigation is evidenced by Reed's statement that Petitioner showed her displeasure that the FHP refused to work the accident by relating to her that "FHP is not working it immediately after she returned to the station." (Page 10 of Respondent's exhibit 4, Reed's I.A. statement). Trooper Barfield related to Petitioner that he preferred that she worked the accident since it involved a fellow worker (of Petitioner). Barfield told Petitioner of an earlier accident investigation that he conducted involving a local law enforcement employee and he came under intense pressure from other law enforcement officials as it was so close to an election. Trooper Barfield begged off working the Stoner incident as he was fearful that he would undergo similar criticism if he worked the Stoner incident. Petitioner relented as she felt that she could not order Trooper Barfield, who worked for an independent agency, to conduct the investigation. Sergeant Stoner was taken to the station to take a breathalyzer test by Sandra Reed. Stoner left his gun unattended in his jeep. When Petitioner's superior was told that she was about to have administered to Sergeant Stoner a breathalyzer test, her superior ordered her to place the breathalyzer test on hold and to that order, Petitioner expressed her displeasure based on the fact that she correctly considered that the longer a suspected intoxicated driver is detained from taking the breathalyzer test, the results may be flawed based on the hiatus between the time of driving the vehicle and the time the test was administered. Despite the fact that it took approximately 2 1/2 hours for clearance to be given Petitioner, when Sergeant Stoner took the test, he blew a .101 and a .106 blood alcohol content. Prior to Sergeant Stoner being questioned by Internal Affairs on September 20, 1988, Stoner was given a rights advisement prior to the questioning whereas Petitioner was not accorded the same right. Additionally, Stoner received a two-day suspension for being .10 blood alcohol level whereas Petitioner was demoted and ultimately discharged. Another indicia of disparity of treatment by Respondent is evident from the degree in which Petitioner was disciplined whereas Sergeant Stoner left his gun unattended on the evening of September 20, 1988, a clear departure from Respondent's SOPs, and he was neither charged nor disciplined for leaving his gun unattended. Bogart agreed that Stoner could have been terminated for just being .10 blood alcohol level but despite the two-day suspension, Bogart gave Stoner a satisfactory performance evaluation just one week after he gave testimony against Petitioner in this cause. As stated, during the hearing, Bogart maintained that anyone who is untruthful in sheriff's office investigations is fired and that there are no exceptions to this policy. A review of the evidence herein reveals that this is not true. Specifically, Deputy Gary Albin was not terminated when he was found to have lied to Internal Affairs on February 3, 1988. Bogart accused Albin of theft whereupon the Career Service Board changed its charge to false or otherwise untrue statements concerning official sheriff's office matters. If Respondent's policy is as Bogart testified, Bogart should have changed the original erroneous charge he filed against Albin and charged him with untruthfulness in accordance with the Board's findings. This is especially true in view of the fact that Bogart did not hesitate to change the erroneous charge he initially filed against Petitioner in the Sears incident. Bogart maintains that that matter was "totally out of my hands" although the facts does not bear him out in this regard. Indeed, four months after Gary Albin had been found to have been untruthful, Bogart gave him a satisfactory performance evaluation. This is so despite Bogart's contention that he maintains high performance expectations and standards respecting those employees who he supervised. Another example of Bogart's disparate treatment of Petitioner versus male contemporaries is evidenced by the explanation of why Stoner only received a two-day suspension for being .10 BAC on September 20, 1988. Bogart felt that a mitigating factor for Stoner was the fact that he was off-duty however when Petitioner was off-duty during the Sears incident, Bogart made no effort to use that as a mitigating factor when he imposed discipline against Petitioner. The only mitigation Petitioner received was the action by the Career Service Board which mitigated the punishment of Petitioner from that recommended by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be reinstated to the rank of lieutenant as of February 16, 1989. Petitioner be provided all back pay, to include all raises and costs of living allowances for which she would have been entitled to had she been continuously employed at the rank of lieutenant from February 16, 1989 to the date of the entry of the final order. Provide opportunities that Petitioner be tested for and receive any promotions to which she would have been entitled had she not been demoted on February 16, 1989. DONE and ENTERED this 26th day of June, 1991, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of June, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 8th day of December, 1988.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Criminal Justice Standards and Training Commission, (Commission), was and is the state agency responsible for the certification of law enforcement officers in this state. The Respondent, Douglas E. Szczepanik, was and is certified in Florida as a law enforcement officer. Late on the evening of August 22, 1988, Respondent was employed as a police officer with the Delray Beach, Florida, Police Department, (Department). While at the hospital with Officer Eberhart collecting a blood specimen from a third person for use in another police matter, he heard a police radio call relating to the hot pursuit of a felony suspect. He and Eberhart went to the scene of the expected apprehension and found that the suspect had been apprehended after a high speed chase by several police cars including one driven by Officer Thomas A. Whatley. It was subsequently determined that the suspect had lost control of his vehicle, a stolen car, and had ended up abandoning it on the city's municipal golf course adjacent to West Atlantic Avenue. He then ran off on foot across the course with Officer Whatley in pursuit in his police cruiser. The suspect ran up a hill and down the other side. Whatley, surmising that the hill was no more than that, and that the other side of the hill was a down slope, drove up the hill after the suspect at a speed of approximately 45 to 50 mph. As he reached the crest, he found that he was on the lip of a sand trap and since he could not stop, his car became airborne, coming to rest some 25 - 30 feet further along, in the sand trap. Though it did not bear significant outward signs of damage, the vehicle was, in fact rendered inoperable as a result of the impact. Fortunately, the suspect was apprehended by other officers on the scene. As a result of the serious nature of the suspect's alleged crimes, suspected murder of an officer and car theft, many Delray Beach officers were involved in the chase and were, therefore, on the scene at the time of the apprehension and Whatley's vehicular mishap, including his Lieutenant, Woods, and his patrol sergeant, then Sergeant Musco. Lt. Woods directed Sgt. Musco to block traffic on Atlantic Avenue and another officer to get the damaged vehicles towed away. He directed Respondent, then at the scene, to write the traffic accident report relating to Whatley's car. There is some indication that initially Woods did not think a report was necessary, but he ultimately became convinced it was and gave the job to Respondent. Since both Respondent and Eberhart were traffic investigators, Eberhart indicated he would do it and Respondent acquiesced. Respondent and Eberhart both discussed the accident and both developed their own theory as to how it happened. Neither, however, bothered to question Whatley who remained at the scene for some time before being directed to resume patrol, using Respondent's cruiser. Even when that was being set up, Respondent did not question Whatley as to what had happened, speaking to him only to caution him not to lose his keys when he turned them over to him. Based on their examination of the scene on Atlantic Avenue, and without even looking at Whatley's vehicle and where it ended up, Eberhart concluded that the accident occurred when the suspect lost control of his vehicle and ran into Whatley's forcing him to lose control and run up the side of and into the sand trap. Had Eberhart bothered to look at the vehicle, he would have seen no body damage consistent with collision. Eberhart was subsequently convinced by Respondent, who did look at Whatley's vehicle, that an alternative theory, indicating that the suspect lost control of his vehicle and prompted Whatley to lose control of his in an effort to avoid a collision, was what happened. In any event, Respondent claims that later that evening, back at Police Headquarters, he saw Whatley attempting to write out his report. Whatley allegedly asked Respondent for help in writing it since he was relatively new to the force and this was his first accident. Respondent also claims that he merely told Whatley the format for the report and the type of information to put in it. He admits that, as an example of what to say, he told Whatley his theory of the accident. When Whatley indicated that was not how it happened, Respondent allegedly told him, then, to write in what did happen as he, Whatley, recalled it, and he denies suggesting that Whatley use his scenario if it was not correct. Whatley, on the other hand, claims that while they were still at the scene of the accident he talked with Respondent and told him what had happened. Respondent supposedly walked around the wreck and then told Whatley to put in his supplement to the accident report that he had been taking evasive action. When Whatley told him that was not the way it happened, Respondent is alleged to have said that the people "upstairs" wanted police accident reports to reflect no fault on the part of the officers. Whatley claims that Sgt. Musco was present at the time but Musco does not profess to have heard that and Respondent categorically denies that Whatley told him at the scene how the accident occurred or that he went to the sand trap to look at the vehicle. In a statement made to Captain Schrader in November, 1988 as a part of the Internal Affairs investigation, Respondent again denied he spoke with Whatley at the accident scene. No evidence was presented by the Petitioner as to what benefit Respondent would gain or what detriment he would avoid by telling Whatley to falsify his supplement. Musco claims that when he first saw Whatley, he appeared depressed about the incident and Musco told him to write it up as it had happened and not to worry about it because he, Musco, was not worried about the car. When Respondent, who Musco had assigned to write up the report, said he was going to show it had happened when Whatley attempted to avoid an accident, Musco told him to write the report honestly as he had been trained to do, and as Whatley had reported it. Musco did not follow up to see if the report or Whatley's supplement thereto was prepared properly. Since he had assigned the duty to a trained traffic/homicide investigator, (Respondent), he presumed it was done correctly. He knows of no policy to falsify reports of police accidents and in fact has had an accident himself, in which he was at fault, and which was written up accurately. Respondent claims that after he spoke with Whatley at Police headquarters and told him to write the report honestly, he left and met Lt. Woods outside. He told Woods that Eberhart was going to write the accident report and that Whatley was going to write his supplement honestly. Woods reportedly responded that was no good because he had already told everyone it had happened because of Whatley's attempt to evade the suspect's car. Because of that, even though Woods did not give him any instructions to do so, Respondent claims he went back inside and told Whatley to write his supplement the way he remembered it. Respondent claims that at no time did he ever tell Whatley to write a false report. He also claims that he never made the statement attributed to him regarding the people "upstairs." He would have nothing to gain or to lose by convincing Whatley to falsify his supplement. After getting advice from Respondent and from Sgt. Musco, Officer Whatley, for some reason, wrote his supplement indicating he had the accident in an attempt to evade the suspect's out of control vehicle. Whatley cites two meetings with Respondent that evening, as does Respondent, but their stories of what transpired differs radically. Whatley claims that Respondent told him to make sure his supplement conformed to what was in Eberhart's report. He did, and when he gave it to Lt. Woods to read, Woods rejected it because it was false and Woods knew it to be false. Woods then told him to hold off on the supplement and about a week later, Whatley was told by Captain Cole to write another supplement which was accurate. Respondent, on the other hand, claims he had little contact with Whatley at the scene of the mishap and denies any direct conversation with him about the accident. All he said, he claims, was, "it doesn't look too bad." Respondent asserts that at no time did Whatley tell him how the accident occurred. Later that evening, when, at the station he saw Whatley writing his report, Whatley asked him for advice as to how to construct and what to put into his supplemental report. Respondent claims he told Whatley to go back and tell the story as it happened. He admits to telling Whatley how he felt the accident occurred but when Whatley said that was not how it was, Respondent again told him to write it as it happened. This whole conversation took no more than a minute or a minute and a half. The only direction he gave Whatley was as to the format of the supplement, not the substance, other than that it be the truth. When, a few minutes later, Respondent saw Woods and told him that Whatley was having trouble, Woods told Respondent how he felt the accident had occurred. At that time, Woods gave Respondent no directions, but Respondent went back into the station and again told Whatley to write up his supplement the way he, Whatley, recalled the accident happening. The following day, according to Respondent, Woods pulled him aside and told him he had just spoken to Major Lincoln who said the report was to be written as Respondent had originally said the accident had occurred, incorrectly. At no time did Respondent speak directly with Lincoln about the accident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case by the Commission dismissing the Administrative Complaint filed against the Respondent. RECOMMENDED in Tallahassee, Florida this 17th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, regarding the Proposed Findings of Fact submitted by the Petitioner in this proceeding. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. - 14. Not phrased as Findings of Fact but more as restatements of testimony. However, the substance of the restatements is correctly stated and has been accepted and incorporated herein. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein as an accurate recitation of Whatley's story. 24. & 25. Again, not phrased as Findings of Fact. Here, however, the substance of Whatley's statement is rejected as not proven. 26. & 27. Rejected as not supported by evidence of record. - 30. Accepted and incorporated herein. Accepted. Rejected as not supported by the evidence. Whatley and Respondent did meet at the station that evening, but the allegation that Respondent told Whatley to falsify his report is not supported by credible evidence. & 34. These are restatements of testimony but are accepted. 35. - 37. An accurate restatement of the testimony, but the testimony is rejected as unsupported. Even Lincoln denied making the statement. 38. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted as accurate recitations of the testimony. COPIES FURNISHED: Rodney Gaddy, Esquire Michael R. Ramage, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Salerno, Esquire 242 Plaza Office P.O. Box 1349 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director CJSTC Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. him. If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.) The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week. Included in the report is the number of written warnings and faulty equipment notices issued by the trooper. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices: Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices." Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident. Libby has been previously disciplined for negligence in the performance of his duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP. DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. B. M. Libby Post Office Box 322 Green Cove Springs, Florida 32043 Edwin E. Strickland, Esquire General Counsel Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304 Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by falsifying official records of the Florida Highway Patrol with intent to mislead her supervisors in violation of Section 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Between March 13, 1987, and July 9, 1987, Respondent was a law enforcement officer certified by Petitioner. All events incident to the findings of fact in this Recommended Order occurred while Respondent was working in the ordinary course of her employment as a Florida Highway Patrol trooper in Miami, Florida. On April 7, 1987, Respondent stopped motorist Donald McCarron for driving a vehicle with an expired tag. Respondent issued Mr. McCarron a correction card for driving a vehicle with an expired tag but did not issue motorist McCarron a written warning. Respondent claimed both a correction card and a written warning as work activity in her weekly report to her supervisor. On June 23, 1987, Respondent stopped motorist James Merklein for speeding. Respondent issued Mr. Merklein a citation for speeding. Mr. Merklein did not have his vehicle registration in the car. Respondent verbally warned Mr. Merklein to carry his vehicle registration in the car, but did not issue motorist Merklein a written warning. Respondent claimed both a citation and a written warning as work activity in her weekly report to her supervisor. The existence of incidents in addition to those involving motorists Merklein and McCarron was not established by competent and substantial evidence. One or two incidents in which Respondent failed to give correction cards and written warnings to motorists is not clear and convincing evidence of lack of good moral character. 2/ Respondent admitted to Lieutenant John C. Baker that she "on occasion" writes warnings and cards, leaves them in her patrol car seat, and forgets to give them to the violator. Such occasions occur only when Respondent has given a motorist a lengthy explanation. The record does not reflect that Respondent admitted to additional incidents alleged to have been documented by Sergeants Alvarez and Pelton. Instead, in the words of Lieutenant Baker, "she did not deny the allegations in the complaint." Florida Highway Patrol trooper work activity, in the form of claimed written warnings and correction cards issued to motorists, form a significant portion of a trooper's report of weekly work performed. In order for a trooper to legitimately claim credit for written warnings or correction cards, the trooper must have given a copy of the document to the motorist in question. A Florida Highway Patrol supervisor, in formulating a subordinate performance evaluation for a given period, compiles statistics of the trooper's work activity and utilizes these statistics to rate the trooper's work performance. Evaluations form the basis of Florida Highway Patrol decisions concerning trooper retention, promotion, and salary increases. During the Respondent's June, 1986, to June, 1987, Florida Highway Patrol work evaluation cycle, her work activity, as reported by her, was considered by the Florida Highway Patrol to be in the "low satisfactory" range. Discounting the two incidents established by clear and convincing evidence in which Respondent claimed written warning and correction card work activity on her weekly report but failed to give the written warnings and correction cards to the motorist would not have caused her work activity to fall below satisfactory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of March, 1990. DANIEL MANRY 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 20th day of March, 1990.
The Issue The issues to be determined in this case are whether Respondent, Deputy John Bradshaw, engaged in conduct prohibited by the rules promulgated by Petitioner, Pinellas County Sheriff’s Office, and, if so, whether the disciplinary action taken against Deputy Bradshaw was consistent with action taken against other members of the Sheriff’s Office.
Findings Of Fact At all times relevant to this case, John Bradshaw was a deputy employed by the Pinellas County Sheriff’s Office. The Pursuit On September 22, 2006, one or more deputies were “staking out” an area along Ulmerton Road in Largo where burglaries of vehicles had been reported. At about 1:30 a.m., a suspicious vehicle was observed in the area by Sgt. Lawrence Palombo. When the driver of the vehicle began to drive recklessly (traveling southbound in a northbound lane), Sgt. Palombo decided to make a traffic stop of the vehicle. He called other deputies for assistance before doing so. When Sgt. Palombo turned on his flashing lights to make the traffic stop, the suspicious vehicle slowed, pulled to the right as if to stop, but then sped away. A pursuit of the vehicle was immediately initiated. The testimony of the deputies involved in the pursuit differed as to where the pursuit began, but the exact location is not material in this case. The pursuit started on 49th Street somewhere between 110th Avenue and 126th Avenue and traveled south on 49th Street. Sheriff’s Office regulations limit the number of Sheriff’s Office cruisers that may participate in a pursuit to three. The three cruisers involved in this pursuit were driven by Sgt. Palombo, Deputy Bradshaw and Deputy Jeff Martin. The pursuit reached speeds of 85 or 90 mph. It passed through a number of intersections along 49th Street that had traffic lights. At some of these intersections, the traffic light was red for southbound traffic, but the deputies proceeded through the intersections on the red lights. As the pursuit approached the intersection of 49th Street and 38th Avenue, the order in which the pursuing deputies were aligned behind the suspect vehicle was Sgt. Palombo in the lead, then Deputy Bradshaw, and Deputy Martin last. Deputy Bradshaw’s cruiser was a 2005 Crown Victoria 4-door sedan. All the cruisers had their lights flashing. The record shows that Sgt. Palombo had his siren on. The record does not show whether the other two deputies in the pursuit were using their sirens, but it was not a disputed factual issue and it would be reasonable to infer that all three deputies were using their sirens. The intersection at 38th Avenue has four southbound lanes, including a left turn only lane, two through only lanes, and a far right lane which can be used for through traffic or to turn right. Sgt. Palombo testified that, as the pursuit neared the intersection, he saw “vehicles . . . stopped at the intersection,” and “we came up on cars that were at that intersection going in the same direction.” These “civilian” vehicles must have been stopped in the two right lanes because its was undisputed that Sgt. Palombo was in the left turn lane and Deputy Bradshaw was in the lane next to Sgt. Palombo, the leftmost through lane. The suspect vehicle proceeded through the intersection at 38th Avenue. Sgt. Palombo slowed to a stop in the left turn lane. He thinks he stopped his cruiser at the “stop bar” or “maybe in the crosswalk.” The Crash Grace Umali, driving a 2002 Toyota 4-Runner was traveling westbound (coming from the deputies’ left) through the intersection on a green light. Her three-year-old son was also in the vehicle. Sgt. Palombo, stopped in the left turn lane, saw the Umali vehicle come from his left, pass in front of him and then collide with Deputy Bradshaw’s cruiser. A subsequent crash scene investigation found no pre-crash skid marks, which indicates that neither driver braked hard before impact. There was no dispute that the collision occurred in the leftmost, southbound through lane, only about one car length beyond the “stop bar” where vehicles must stop for a red light. Following the initial impact, Deputy Bradshaw’s vehicle continued south across the intersection and hit a traffic light pole at the southwest corner of the intersection. The cruiser caught fire as a result of the crash. The Umali vehicle also traveled south across the intersection after impact, rolled over, and came to rest upside down along the western curb of 49th Street, beyond Deputy Bradshaw’s cruiser. Both vehicles were “totaled.” The crash resulted in Deputy Bradshaw suffering a broken leg and minor cuts and bruises. Ms. Umali and her son also suffered injuries, but the record does not identify their injuries. Evidence was presented on the disputed factual issue of which vehicle struck the other. Deputy Bradshaw contends that the Umali vehicle struck him, somewhere near his left front wheel. Deputy Martin, who was 50 to 70 yards behind Deputy Bradshaw when the crash occurred, said it appeared to him that the Umali vehicle struck Deputy Bradshaw. However, Deputy Linda Willett, who was a member of the Major Accident Investigation Team (MAIT) that responded to the Bradshaw crash, said the crash scene investigation, primarily the physical evidence of damage on each vehicle, made her conclude that Deputy Bradshaw struck the Umali vehicle. She could not recall seeing any damage to the front of the Umali vehicle. Captain Nicholas Lazaris, the leader of the MAIT Team, and Lt. Timothy Pellela, another MAIT Team member, also concluded that Deputy Bradshaw had struck the Umali vehicle. The parties placed more importance on this factual dispute then it warranted because the difference between the two scenarios is a fraction of a second.1 However, the more persuasive evidence is from the crash scene investigation –- indicating that Deputy Bradshaw struck the Umali vehicle -- because the vehicle damage evidence is more objective and reliable than human memory of split-second events during stressful circumstances. The Speed of the Vehicles The most important factual dispute in this case was how fast Deputy Bradshaw was going when the crash occurred. Deputy Bradshaw claims he slowed to about 35 mph. Sgt. Palombo estimated Deputy Bradshaw’s speed was 40 mph. However, at the hearing, Sgt. Palombo stated in response to a question about how far Deputy Bradshaw was behind him, “To be honest with you, you really don’t want me to know the answer to that question.” His clear meaning was that his attention needed to be elsewhere. This and other testimony by Sgt. Palombo shows his attention was directed forward, as would be expected. Therefore, Sgt. Palombo’s estimate of Deputy Bradshaw’s speed at the moment of the crash is not reliable. Lt. Pelella was an alternate on the MAIT Team that was called to respond to the crash. Lt. Pelella was assigned both on-scene investigation and crash reconstruction duties. In crash reconstruction, a conservation of linear momentum formula is used, which takes into account factors such as the point of impact, the distance the vehicles traveled after impact, their weight, and drag, to arrive at an estimate of the speed of the vehicles at the moment of impact. Applying this methodology, Lt. Pelella estimated that Deputy Bradshaw was traveling at about 57 mph and Ms. Umali was traveling at about 42 mph when the collision occurred. Deputy Bradshaw attempted to cast doubt on the credibility of Lt. Pelella’s estimate of vehicle speeds by showing that the traffic crash report prepared by Deputy Willett the day after the crash included the same speeds for the vehicles, 57 mph and 42 mph, that Lt. Pelella came up with two months later using the conservation of linear momentum formula. Deputy Willett testified that she did not come up with the vehicle speed information for her report; that it had to have been provided by another member of the MAIT Team. In response to a leading question from Petitioner’s counsel, the MAIT team leader, Captain Nicholas Lazaris, agreed that the speeds indicated in Deputy Willet’s report “were filled in to comport with Lieutenant Pelella’s accident reconstruction.” The implication is that Deputy Willett’s report did not include the vehicle speeds when it was prepared and signed by her, but the vehicle speeds were put into the report later without changing the date of the report. The record is left unclear about how the vehicle speeds came to be in Deputy Willett’s report, but this curious situation did not rise to the level of proof of some conspiracy to falsify the report. It also did not cause Lt. Pelella’s conclusions about the vehicles speeds to be unreliable. Sgt. Glen Luben was another member of the MAIT Team that responded to the Bradshaw crash. He obtained the Power Train Control Module from Deputy Bradshaw’s vehicle to extract some of the data that is automatically recorded when there is a loss of power. Sgt. Luben testified that the recorded information indicated that Deputy Bradshaw’s vehicle was going 70.13 mph when his cruiser’s engine stopped. He said this figure was consistent with the crash reconstruction done by Lt. Pelella which estimated Deputy Bradshaw’s speed to be 57 mph, because the conservation of linear momentum formula produces a “minimum speed.” Sgt. Luben believes 70.13 mph to be the more likely actual speed that Deputy Bradshaw was traveling at the moment of impact. Sgt. Palombo thought Ms. Umali was exceeding the speed limit, which is 35 mph. Lt. Pelella’s estimate that Ms. Umali was going 42 mph is consistent with Sgt. Palombo’s testimony. Deputy Martin testified that Ms. Umali was going “[p]robably 55 or 60, just from what little I saw of it.” This testimony by Deputy Martin, as well as his testimony that the Umali vehicle struck the cruiser and that Deputy Bradshaw used due care, was not persuasive. It appeared to be based on Deputy Martin’s desire to support Deputy Bradshaw rather than an impartial account of his actual observations. The crash scene photos and other data do not support Deputy Bradshaw’s claim that he was going only 35 mph at the time of the crash. The more persuasive evidence puts his speed in the range established by Lt. Pelella’s crash reconstruction and Sgt. Luben’s analysis of the Power Train Module from Deputy Bradshaw’s cruiser, between 57 and 70 mph. Although Deputy Bradshaw denied that he was going 57 mph, he agreed that if he had been going that fast, he would not have been exercising due care. Whether Deputy Bradshaw was Wearing His Seatbelt At the final hearing Respondent presented some evidence to show that Deputy Bradshaw was not wearing his seatbelt at the time of the crash. Deputy Bradshaw claims he was wearing his seat belt, but he objected to Petitioner’s introduction of seat belt evidence because Deputy Bradshaw was not informed in the charging document that his failure to wear his set belt was an element of the charges against him. The August 10, 2006, inter-office memorandum that officially informed Deputy Bradshaw of the charges against him stated: Synopsis: While engaged in a high speed pursuit, you ran a red light at a minimum speed of 57 miles per hour and collided with a civilian vehicle which had already entered the intersection. Serious injuries were sustained by both drivers and a passenger in the civilian vehicle. Similarly, the parties’ Joint Pre-Hearing Stipulation stated Petitioner’s position as “Respondent was traveling at a speed which was faster than that at which he could safely clear the intersection.” Therefore, the Administrative Law Judge sustained Deputy Bradshaw’s objection and ruled that seat belt evidence was inadmissible. Ms. Umali’s Impairment In the course of the post-crash assistance provided to Ms. Umali and her passenger, it was determined that she was driving under the influence of alcohol. She was charged and convicted for misdemeanor DUI. The location of the initial collision means that Ms. Umali had crossed about 60 percent of the intersection before the collision, but Deputy Bradshaw had just entered the intersection. Clearly, Ms. Umali entered the intersection well before Deputy Bradshaw. The record evidence establishes that when Ms. Umali got to the intersection, Sgt. Palombo’s cruiser was stopped at the intersection with its siren on and lights flashing. Ms. Umali would have seen Sgt. Palombo’s cruiser. Respondent’s Exhibit 7 contains a deputy’s written notes from his interview with Ms. Umali just after the accident. Neither Ms. Umali nor the deputy who interviewed her were called as witnesses. The exhibit was admitted into evidence over a hearsay objection to show what was considered by the Administrative Review Board in determining the discipline to recommend. The exhibit was not admitted for the truth or accuracy of the statements contained in the exhibit.2 However, the hearsay notation that Ms. Umali told the interviewing deputy that she saw the “cops” and their flashing lights supplements the non-hearsay evidence that she saw (at least) Sgt. Palombo’s cruiser. Whether caused by her impairment or another reason, Ms. Umali did not yield the right-of-way to an emergency vehicle as the law requires. It is Deputy Bradshaw’s position that Ms. Umali’s impairment and failure to yield are important facts in determining whether he used due care under the circumstances. An unstated implication of his argument is that it was reasonable for him to expect civilian vehicles approaching or entering the intersection to yield and, consequently, reasonable for him to disregard the possibility of a non-yielding vehicle. This argument is inconsistent with Deputy Bradshaw’s testimony that he did not notice whether the light at 38th Avenue was red or green, but the color of the light did not matter to him because he always slows at an intersection to make sure it is safe to pass through. In other words, he drives defensively even when he has the right of way. Curiously, no one asked Sgt. Palombo why he stopped in the left turn lane at 38th Avenue. He said he intended to continue his pursuit of the suspect vehicle and that, as soon as the Umali vehicle passed by him, he proceeded through the intersection and continued the pursuit. It is reasonable to infer from the record evidence that Sgt. Palombo came to a stop or near-stop because he saw the Umali vehicle approaching. If he did not see the Umali vehicle approaching, he would have merely slowed down, as he did at the other intersections through which the pursuit had passed. Deputy Bradshaw should have been alerted by Sgt. Palombo’s action in stopping at the intersection that there might be oncoming traffic. Petitioner showed by a preponderance of the evidence that Deputy Bradshaw failed to drive with due regard for the safety of all persons under the circumstances that existed at the time of the crash. The Disciplinary Process Deputy Bradshaw claims that his case was handled differently than all other disciplinary cases arising from a crash during a pursuit. The usual procedure followed when there has been a pursuit that resulted in a crash is that the matter is reviewed by the Pursuit Review Board and also the Crash Review Board. Neither of these boards reviewed the Bradshaw crash. Instead, the crash was investigated by the Administrative Investigations Division within the Sheriff’s Office and then presented to the Administrative Review Board to determine whether discipline against Deputy Bradshaw was warranted and to make a recommendation for disciplinary action to Sheriff James Coats. Deputy Bradshaw believes his case was handled differently because of the concern of Petitioner’s general counsel about civil liability arising from the collision. This proposed explanation seems illogical, because an employer concerned with liability would be expected to assert that its employee did nothing wrong, not the opposite. A plaintiff would be encouraged, not discouraged, by Petitioner’s action against Deputy Bradshaw in this case. Petitioner acknowledges that the procedure it followed in the Bradshaw matter was atypical, but that it was justified by the atypical facts involved. Captain Wayne Morris was chairman of the Pursuit Review Board which meets monthly to review pursuits from the previous month. He said the Pursuit Review Board has an option of referring a matter for an internal investigation when there is an appearance of possible misconduct by a deputy. He said the Bradshaw crash was one of several pursuit cases that was scheduled to come before the board, but he asked or suggested that it should be investigated by the Administrative Investigations Division based on “the seriousness of the crash.” He said that he could not remember a crash that involved vehicles that were “totaled” or injuries to a “third party.” Captain Morris said that even though General Order 15- 2 of the Sheriff’s Office states that all pursuits will be reviewed by the Pursuit Review Board, that is just a guideline and does not always have to be followed. Captain Dean Lachance, chairman of the Crash Review Board, said that his board was not the appropriate body to investigate the Bradshaw matter “because of the level of discipline that we can levy,” and that if this matter had come to the board, it would likely have been referred to the Administrative Investigations Division. Sheriff Coats provided similar testimony that this was an unusual case in the time that he has been Sheriff and it warranted a different review. An Administrative Review Board considered the information compiled by the Administrative Investigations Division and recommended that Deputy Bradshaw be suspended for four days. Sheriff Coats accepted the recommendation and notified Deputy Bradshaw of the disciplinary action on August 10, 2007. The suspension was served by Deputy Bradshaw on August 23 through 26, 2007. Deputy Bradshaw made much of the deviation from usual procedures that occurred in this case, suggesting that it shows some kind of conspiracy to determine wrongdoing and to impose harsh discipline. However, the evidence shows that there was a reasonable perception, shared by several high-ranking officials in the Sheriff’s Office, that the matter warranted special attention because (1) it involved unusually extensive property damage and personal injuries to a deputy and to civilians and (2) because Deputy Bradshaw might have been at fault. It is natural for a crash under these circumstances to create heightened concern or interest in the Sheriff’s Office. Deputy Bradshaw’s claim that the pending lawsuit by Umali against the Sheriff’s Office caused his discipline to be more severe than was justified is not supported by the evidence. Whether the Disciplinary Action was Consistent Deputy Bradshaw showed that the Crash Review Board has never recommended more than a reprimand, even in cases where a deputy was involved in two preventable crashes. Deputy Bradshaw argues that this proves his own discipline was too severe. However, the evidence presented by Deputy Bradshaw included no factual details from the other disciplinary cases that could establish that they involved similar circumstances or otherwise would warrant similar punishment. The record evidence shows that there were no previous incidents that could be described as “similar.” Under the circumstances, Deputy Bradshaw should have decelerated to a very slow speed or even to a stop to make certain no vehicle was approaching from the east. The discipline Deputy Bradshaw received was commensurate with the degree of his deviation from his duty to drive with due regard for the safety of all persons. It was neither inconsistent with prior disciplinary action taken by the Sheriff’s Office against other members nor unreasonably harsh for the offense that was proven. Facts Related to Section 112.532(6), Florida Statutes As discussed more fully in the Conclusions of Law, Section 112.532(6), Florida Statutes (2006), states that disciplinary action cannot be taken against any law enforcement officer in the state for any allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation. Deputy Bradshaw contends that the investigation of the charges against him arising from the crash on September 22, 2006, was not completed within 180 days and, therefore, no disciplinary action can be taken against him. Captain Teresa Dioquino was in charge of the Administrative Investigations Division of the Sheriff’s Office when the subject crash occurred. She testified that Deputy Bradshaw was informed that her division was investigating the crash on May 21, 2007, through a “Notice of Complaint.” She said that was also the date that her division “formally” began its investigation. If May 21, 2007, was the operative beginning date, the Sheriff’s Office met the 180-day requirement. However, the operative beginning date to calculate the 180-day requirement, as stated in the statute, is “the date the agency received notice of the alleged misconduct.” It is not the date that an investigation is formally initiated. Deputy Bradshaw’s speed going through the intersection was the fundamental factual basis for his alleged misconduct in this case. Therefore, the date when the Sheriff’s office received notice of Deputy Bradshaw’s speed would be the operative beginning date to calculate compliance with the 180—day requirement. Petitioner argues that it did not start its investigation of Deputy Bradshaw before May 21, 2007, because it was waiting for the results of Sgt. Luben’s analysis of the Power Train Control Module from Deputy Bradshaw’s cruiser, which was completed in May 2007. Petitioner essentially argues that the completion of Sgt. Luben’s analysis was a necessary prerequisite for the Sheriff’s Office to be on notice of the “allegation of misconduct” regarding Deputy Bradshaw. However, Sgt. Luben testified that he did not discover until January 2007, that the Power Train Control Module even existed in the 2005 Crown Victoria. In other words, when the Sheriff’s Office was informed on December 13, 2006, that Deputy Bradshaw was traveling at 57 mph, based on Lt. Pelella’s crash reconstruction report, it had no reason to think Sgt. Luben was going to come up with another estimate of Deputy Bradshaw’s speed from his analysis of the Power Train Control Module. Once Lt. Pelella’s 57 mph estimate was reported, Sgt. Luben’s subsequent analysis became just a part of the investigation of the alleged misconduct that had to be completed within 180 days. Furthermore, the fact that the Bradshaw crash never went to the Pursuit Review Board or the Crash Review Board during the period from December 2006 to May 2007 indicates a continuing assumption that the Bradshaw crash warranted an investigation of possible misconduct. Using December 13, 2006, as the date the Sheriff’s Office received notice of the alleged misconduct of Deputy Bradshaw, the investigation was not completed within 180 days as required by Section 112.532(6), Florida Statutes (2006). Nevertheless, as discussed in the Conclusions of Law that follow, the exclusive remedy for a violation of the 180-day requirement is an injunction action in circuit court. The failure of the Sheriff’s office to comply with the 180-day requirement cannot be raised as a defense in this administrative action.3
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Civil Service Board issue an Order that makes findings of fact that are consistent with those set forth in this Recommended Order, and contains a conclusion that (1) Deputy Bradshaw engaged in the prohibited conduct for which he was charged, and (2) the disciplinary action taken against him was consistent with action taken against other members of the Sheriff’s Office. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 18th day of April, 2008.
Findings Of Fact At all times relevant hereto the Respondent was licensed as a Class "D" Security Officer and held license No. D92-09970. On April 7, 1993 Detective Janice Shine, a deputy sheriff with the Pinellas County Sheriff's office, left her office around 11:00 p.m. driving a 1984 Oldsmobile which was unmarked but not fully equipped to serve as a police vehicle. This was a spare vehicle owned by the Pinellas County Sheriff's office. While Detective Shine was stopped at a stoplight on Ulmerton Road in the left hand lane, Respondent pulled alongside of her vehicle in the center lane. When the light changed, both cars proceeded straight ahead. Respondent pulled in front of Shine's vehicle and slowed down. Shine passed him on the right, and when she did, Respondent indicated for her to pull over to the side of the road. Shine testified that Respondent told her that he was a police officer and that she was speeding. Shine replied that she was a deputy sheriff and for him to grow up. Respondent continued to follow Shine and motioned for her to pull off the road. Detective Shine used her radio to call for back up, and further down Ulmerton Road she did pull off the road. Respondent pulled up behind her. Detective Shine emerged from her car with her sheriff's badge in her hand and proceeded toward Respondent's car. Respondent got out of his car with flashlight in hand and accused Detective Shine of driving while intoxicated. Shortly after these two vehicles stopped, approximately four cars carrying deputy sheriffs and/or police pulled up at the scene. Respondent repeated his accusations against Detective Shine and requested she be given a sobriety test. The officers talked to Shine out of the presence of Respondent, then arrested Respondent on charges of impersonating a police officer. At this time Respondent was dressed in a khaki shirt which was part of his security officer's uniform, with the name of the company for whom he was working on the front of the shirt and an American flag on the shoulder. Respondent was subsequently tried in the criminal court in Pinellas County on charges of falsely impersonating an officer and was found not guilty.
Recommendation It is RECOMMENDED that the Administrative Complaint filed against George Stephanou be dismissed. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Florida. K. N. AYERS 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 8th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH NO. 93-3926 Proposed findings submitted by Petitioner are accepted except: (2) Latter part of sentence starting with "told her". (6) Rejected that Respondent told Shine he was a police officer. (10) Rejected that Respondent had emergency lights. Detective Shine testified he turned on and off his high beams. (12) Rejected that Respondent used his flashlight in an intimidating manner. COPIES FURNISHED: Henri Cawthon, Esquire Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 George E. Stephanou 24195 U.S. 19 North, Lot 444 Clearwater, Florida 34623 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
