The Issue The issue for determination is whether Respondent committed the violations set forth in the amended administrative complaint, and if so, what action should be taken.
Findings Of Fact At all times material hereto, South Florida Patrol Agency, Inc., John D. Turner, President (Respondent), held, and holds, a Class "B" Security Agency license, issued pursuant to Chapter 493, Florida Statutes, having been issued license number B91-00002. On May 20 and 25, 1994, an investigator (lead investigator) for the Department of State, Division of Licensing (Petitioner) performed a proactive inspection 1/ of the U.S.A. Flea Market (Flea Market) in Miami, Dade County, Florida. On the inspection conducted on May 25, 1994, Petitioner's investigator was accompanied by another of Petitioner's investigators. Respondent was providing security for the Flea Market on the inspection dates. On May 25, 1994, Petitioner's investigators observed that the security officer on duty at the main gate post, Jerred Smith, was not wearing a uniform. Also, Petitioner's investigators observed that the security officer on duty at the back door post, Juan Fajardo, did not have a patch or emblem on his uniform. The security officers were employed by Respondent. Respondent's President, Johnny D. Turner, was called to the main gate post by the security officer on duty and accompanied Petitioner's investigators to the other posts manned by Respondent's security officers, including the back door post. After the inspection was completed, Petitioner's lead investigator discussed the violations found with Respondent's President and requested that Respondent's President provide certain records. Respondent's President requested a meeting with Petitioner's lead investigator and the lead investigator's supervisor. A meeting was scheduled at Petitioner's Miami regional office for June 2, 1994, at which time Respondent's President was requested to bring with him records for the last six months consisting of payroll records and work schedules for security officers. However, on June 2, 1994, Respondent's President called the lead investigator's supervisor and requested that the meeting be rescheduled. The meeting was rescheduled for June 14, 1994. Respondent's President failed to appear at the rescheduled meeting. At no time subsequent thereto has the lead investigator or his supervisor been contacted by Respondent's President regarding his failure to attend the meeting scheduled for June 14, 1994, or to reschedule another meeting. Furthermore, at no time has Respondent's President provided the requested records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a final order: Imposing an administrative fine of $350 for Count II; Imposing an administrative fine of $350 for Count III; and Imposing an administrative fine of $500 for Count IV. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995. ERROL H. POWELL 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 10th day of July 1995.
The Issue The issue for determination is whether Respondent should be dismissed from employment with Petitioner.
Findings Of Fact In 1987, Steven E. Belford, hereinafter Mr. Belford, began his employment with the Palm Beach County School Board, hereinafter School Board, as a School Police Officer. From 1991 through April 1995, Mr. Belford considered the conduct of the School Board’s employees, including supervisory and management personnel, towards him to be racially hostile. During this same time period, from 1992 through April 1995, the School Board considered the conduct of Mr. Belford towards co-workers, supervisors, superiors, and students to be inappropriate. On April 10, 1995, a meeting, which could affect Mr. Belford’s employment, was held regarding his job performance. At this meeting, Mr. Belford was represented by counsel from the Police Benevolent Association, hereinafter PBA. Also among those present at the meeting was James Kelly, Chief of the School Police for the School Board. Chief Kelly was concerned with Mr. Belford’s conduct in the performance of his duties. During this meeting, Mr. Belford described the problems that he was experiencing in the work place. After listening to Mr. Belford, Chief Kelly’s concerns extended to the safety of students, staff, and visitors at the school to which Mr. Belford was assigned. As a result of this meeting, Chief Kelly determined that Mr. Belford should and would be required to undergo a fitness for duty examination. Mr. Belford’s PBA counsel advised him to undergo the fitness for duty examination. Even though Mr. Belford’s position was that there was no basis for the examination and that it was, therefore, inappropriate, he agreed to the examination. Mr. Belford was willing to comply with whatever was required of him, even though he may not agree, to keep his job. It is undisputed that the referral of Mr. Belford for a psychological evaluation was reasonable. On April 25 and 26, 1995, Dr. Harley V. Stock performed what he referred to as the “mandatory fitness for duty examination.” In Dr. Stock’s evaluation, dated May 3, 1995,2 he stated, among other things, the following: [Mr. Belford] shows no impairment in relationship to reality. . . . there was no indication of any underlying mood disorder. . . . There is no indication of any underlying thought disorder. . . . In summary this examiner has had the opportunity to review a significant amount of collateral information regarding Mr. Belford’s employment with the Palm Beach School Police Department. It appears that he has had fluctuating reviews, particularly in areas as it relates [sic] to interpersonal interactions. When confronted with documentation, Mr. Belford always has an “excuse”. He essentially feels that most of the problems that he is currently facing are a result of racial discrimination. He takes absolutely no responsibility for his own behavior. He is overly suspicious about other people’s motives towards him. He denies any type of provocative physical action towards the students or others. He believes that he is “misunderstood”. Psychological testing reveals him to be a skeptical, suspicious, over-controlled individual who may have the propensity to lose his “temper” at times when provoked. He, however, will have no insight into this. Instead, he would rather shift the blame, and responsibility to others for any problems that he finds himself in. I find some of Mr. Belford’s explanations for his behavior, as contained in the allegations, incredible. Based on psychological testing, Dr. Stock made the following recommendations in his evaluation: Because of his current psychologic [sic] functioning, his behavior at this time cannot be predicted in terms of his interactions with students and faculty members. He obviously harbors a great deal of hostility towards others, but does not either acknowledge, or recognize it. This can lead to episodes where he may become physically assaultive at the most, or at the very least, verbally aggressive in a way that is inappropriate in a school environment. I would therefore recommend that he is temporarily Unfit For Duty and that he needs mandatory psychologic [sic] counseling. Mandatory psychologic [sic] counseling means that the School Board should be appraised [sic] of his keeping scheduled counseling appointments, and that within a reasonable time, he be re-evaluated to ascertain whether he is making any progress in psychotherapy and gaining any insight into how to both understand his behavior and to modulate his impulses. During the time of treatment, I would recommend that he not engage in any functions that would place him in the role of having any type of “police authority”. This would include coming into contact with students and administrators. However, his psychologic [sic] condition does not render him totally incapable of employment. A “light duty” position would be appropriate in which he can carry on selected roles as described by the School Board while receiving treatment. After treatment is completed, within a reasonable time, Mr. Belford should then be re-evaluated to see if indeed treatment has had any effect on him. At that juncture, a further determination can be made about his work placement. In a meeting held on May 17, 1995, the results of Dr. Stock’s evaluation were discussed with Mr. Belford who was accompanied by his PBA counsel. Mr. Belford was advised that Dr. Stock considered him to be temporarily unfit for duty. In May 1995, in accordance with Dr. Stock’s recommendations, Mr. Belford was removed from duty. He was assigned light duty in the risk management department while he underwent counseling. Mr. Belford’s psychological counseling sessions were conducted by MCC Behavioral Care. His counseling sessions began on May 18, 1995. The School Board coordinated Mr. Belford’s appointments with MCC Behavioral Care and Dr. Stock. Melinda Wong was the coordinator for the School Board. During his last counseling session with MCC Behavioral Care held on August 4, 1995, Mr. Belford and his counselor agreed that he need not return to MCC Behavioral Care for any more counseling sessions. However, the counselor did not indicate to Mr. Belford whether he should or was required to return to Dr. Stock for a final evaluation. In August 1995, a representative from Ms. Wong’s office informed Mr. Belford that his final evaluation with Dr. Stock would be conducted on August 29, 1995. Mr. Belford attended the session with Dr. Stock on August 29, 1995. Mr. Belford departed the session with the understanding that the session was for his final evaluation and that Dr. Stock would submit his final report to the School Board within the next week. However, no final determination was made by Dr. Stock regarding Mr. Belford’s fitness for duty. Dr. Stock had concerns regarding the appropriateness of the counseling provided to Mr. Belford by MCC Behavioral Care. During the month of September 1995 and subsequent months, Mr. Belford periodically inquired of Ms. Wong about the status of Dr. Stock's final determination. Each time, she informed him that no determination had been made by Dr. Stock. Mr. Belford was clearly frustrated. On October 5, 1995, Mr. Belford filed a complaint of discrimination with the Equal Opportunity Employment Commission, hereinafter EEOC, against the School Board. Finally, Dr. Stock's office contacted Ms. Wong and informed her that Dr. Stock needed to have one more session with Mr. Belford in order to make a final evaluation. Ms. Wong arranged for the session to be conducted on January 3, 1996, after Mr. Belford's Christmas vacation. On Friday, December 15, 1995, at approximately 2:40 p.m., Ms. Wong went to Mr. Belford’s workplace which was in the immediate vicinity of her workplace. She advised Mr. Belford that he needed to attend a final session with Dr. Stock on January 3, 1996, in order for Dr. Stock to prepare the final evaluation. Believing that he had attended his final session with Dr. Stock on August 29, 1995, and that Ms. Wong was not aware of the final session, Mr. Belford informed Ms. Wong that he had already completed his final session and requested that she check her records. Mr. Belford was visibly tense and upset. Ms. Wong was surprised by Mr. Belford's reaction. She interpreted Mr. Belford's conduct as refusing to attend his last session with Dr. Stock for a final evaluation. Ms. Wong departed Mr. Belford’s workplace and immediately contacted Chief Kelly. Seeking advice, Chief Kelly telephoned Louis Haddad, the School Board’s Coordinator of Employee Relations. Mr. Haddad advised Chief Kelly to immediately contact Mr. Belford and to arrange a meeting with Mr. Belford that afternoon in Mr. Haddad's office, which was in the same building. Attending the meeting would be Mr. Belford, Chief Kelly, Ms. Wong, and Mr. Haddad. Chief Kelly telephoned Mr. Belford and informed Mr. Belford that he wanted to meet with him in Mr. Haddad's office. Mr. Belford informed Chief Kelly that he was getting-off work in approximately 10 minutes at 3:00 p.m.. At that time, Chief Kelly made it clear that he was giving Mr. Belford a direct order to attend the meeting. Mr. Belford advised Chief Kelly that he wanted his counsel present at the meeting. Chief Kelly did not respond to Mr. Belford's request, but asked him if he was refusing to attend the meeting, thereby disobeying a direct order. Immediately, Mr. Belford became nervous and afraid and felt queasy in the stomach. He inquired as to the location of the meeting. Chief Kelly informed him where the meeting was being held, and they both terminated the telephone conversation. Mr. Belford was on duty when Chief Kelly gave him the direct order to attend the meeting. Mr. Belford did not refuse to attend the meeting. He intended to attend the meeting. When the telephone conversation ended, Chief Kelly had a reasonable expectation that Mr. Belford would obey the direct order and attend the meeting being held that afternoon. Shortly after the telephone conversation with Chief Kelly, Mr. Belford began recalling the events leading up to the telephone conversation, and his nervousness and queasy feeling intensified. Mr. Belford became ill and was unable to attend the meeting. He departed from his workplace without notifying anyone of his sudden illness3 and without attending the meeting. While waiting for Mr. Belford, Chief Kelly, not being aware that Mr. Belford had departed his workplace, telephoned Mr. Belford's PBA counsel and informed him of the meeting and briefly of the underlying circumstances. The PBA counsel considered the meeting appropriate and advised Chief Kelly that he would be available by telephone when Mr. Belford arrived. Immediately after leaving his office, Mr. Belford contacted his new counsel. At approximately 3:25 p.m., a representative from the office of Mr. Belford's new counsel telephoned Chief Kelly. The representative of Mr. Belford's new counsel indicated to Chief Kelly that Mr. Belford would not be attending the meeting due to his sudden illness. Chief Kelly informed the representative that Mr. Belford had disobeyed a direct order and that, among other things, Mr. Belford was relieved of duty and would be recommended for termination due to insubordination. Prior to this telephone call, Chief Kelly had no knowledge that anyone other than the PBA counsel was representing Mr. Belford. Unbeknownst to the PBA counsel and Chief Kelly, Mr. Belford had decided prior to December 15, 1995, that he no longer wanted the PBA counsel's representation and that he wanted new counsel. On Monday, December 18, 1995, the next business day, Chief Kelly received written notification from Mr. Belford's new counsel regarding the reason for Mr. Belford's failure to attend the meeting. It is undisputed that there is no right to consult an attorney before obeying a direct order of a superior officer. Furthermore, it is undisputed that obeying a direct order from a superior officer is a critical and important aspect of the responsibilities of a police officer. On December 20, 1995, Chief Kelly recommended that Mr. Belford be terminated from employment with the School Board for insubordination. Mr. Belford never had a session with Dr. Stock subsequent to August 29, 1995. It was reasonable for Mr. Belford to presume that, since he was being recommended for termination, he was not expected to attend any future session with Dr. Stock. Dr. Stock never made a final determination as to whether Mr. Belford was fit to return to duty. On January 9, 1996, a pre-termination meeting was held with Mr. Belford at which he was represented by counsel. At the meeting, Mr. Belford was notified that he was being terminated for gross insubordination. By letter dated January 26, 1996, the School Board notified Mr. Belford that he was being suspended without pay and that he was being recommended for termination due to gross insubordination. On February 23, 1996, the School Board responded to Mr. Belford's charge of discrimination filed with the EEOC. The School Police for the School Board has a written policy regarding separation from employment. The policy defines gross insubordination in section "IV. C. Suspension/Termination" as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Furthermore, section "IV. D." provides that "Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement." The School Board and the Palm Beach County PBA have a collective bargaining agreement, hereinafter CBA. Article 7 of the CBA, entitled "Police Officers Bill of Rights," provides in pertinent part as follows: 7.1 All law enforcement officers employed by the School Board shall have the following rights and privileges: Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions: * * * I. At the request of any law enforcement officer under investigation, he/she shall have the right to be represented by counsel or any other representative of his/her choice who shall be present at all times during such interrogation when the interrogation relates to the officer's continued fitness for law enforcement service. * * * 5. No law enforcement officer shall be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise be discriminated against in regard to his/her employment, or be threatened with any such treatment, by reason of his/her exercise of the rights granted by this part. Article 29 of the CBA, entitled "Progressive Discipline," provides in pertinent part as follows: This Section covers actions involving oral or written warnings, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. * * * 8. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), any employee may be demoted, suspended, or dismissed upon recommendation of the Chief of Police to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the District or other flagrant violation, progressive discipline shall be administered as follows: Verbal warning (written notation). Written warning. Written reprimand filed in Personnel. Suspension with or without pay. Dismissal. It is inferred and a finding is made that Mr. Belford is a member of the Palm Beach County PBA and is, therefore, subject to the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order revoking the suspension and dismissal and reinstating Steven E. Belford under terms and conditions as are appropriate. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.
The Issue Whether Petitioner proved, by clear and convincing evidence, just cause to terminate Respondent's employment.
Findings Of Fact Hill was a School Board employee from 1978 up to and including December 15, 1999. In the 1999-2000 school year, Hill was assigned to Palm Beach Gardens High School. Although classified as a "teacher on special assignment," his employment responsibilities paralleled those of an Assistant Principal. Hill's job responsibilities included monitoring the halls, supervising the campus and working with students in various functions. He was also responsible for student discipline. Hill enjoyed his work with students and was good at it. He was very well liked by students and interacted positively with them. His authority was rarely challenged. In his last two annual evaluations, Hill was described as a "team player" who "maintains excellent rapport with all students" and serves a "vital role" in the operation of the school. Hill's life and previously unblemished career began to unravel on the night of December 16, 1999. Sometime around midnight, Hill was the subject of a traffic stop. Hill was driving a car owned by his sister, and was alone when pulled over on Atlantic Avenue, Delray Beach, Florida. Hill was detained because a Delray Beach police officer had observed that Hill's driving was erratic; that his left taillight was out; and the car's license tag was out of date. At all times during the traffic stop and the events which transpired after, Hill conducted himself as a "perfect gentleman." He was polite and fully cooperative with the police. After failing a roadside sobriety test, Hill was arrested and taken to the Palm Beach County Jail. Hill consented to a breath test, which revealed an unlawful blood alcohol level of .159/.158. The test result triggered an automatic suspension of Hill's driving privileges; however, those privileges were reinstated by the Department of Highway Safety and Motor Vehicles when it came to light that the so-called Intoxilyzer breath analysis machine on which Hill's test was performed had not been maintained in the manner required by law. While being held in custody, Hill's personal belongings, including the contents of his pockets, were taken from him at the jail. During this process, police claim to have found a baggie weighing 7.4 ounces and containing cocaine. The evidence established that at least two Delray Beach police officers were involved in the portion of the booking process which resulted in the alleged discovery of a "dime bag" of cocaine; however, at the final hearing, Delray Beach Police Officer Scott McGuire (McGuire) was the only witness produced by the School Board who claimed knowledge of the circumstances surrounding the alleged discovery of the baggie, which allegedly contained 7.4 grams of cocaine. McGuire's testimony fell far short of clear and convincing evidence that Hill did in fact possess a dime bag, a baggie, 7.4 grams of cocaine, or 7.4 grams of a substance containing cocaine. McGuire's testimony alternated general statements about what usually happens during the booking process with what happened with respect to Hill's booking on the night of December 16, 1999. McGuire's casual demeanor while testifying, coupled with the imprecise nature of the questions asked and the answers given by him, rendered the undersigned unable to conclude that an appropriate chain of custody had been maintained. In other words, the School Board failed to establish by clear and convincing evidence that the contents of Hill's pockets--and only the contents of Hill's pockets--were at all times accounted for and handled in a manner adequate to assure that no items were removed or added. Initially, the School Board, relying solely upon police reports, asserted that the baggie alleged to have been found in Hill's possession contained 7.4 grams of cocaine. That assertion was negated by Gina Evanzia (Evanzia), Senior Forensic Scientist for the Palm Beach County Sheriff's Office Crime Laboratory and the only School Board witness with personal knowledge of the actual baggie alleged to have been found among Hill's possessions. Evanzia testified that the baggie which the School Board attributed to Hill was not large enough to hold 7.4 grams of anything. The baggie provided to Evanzia for testing and alleged to have come out of Hill's pocket contained 18 milligrams of a substance which contained cocaine, and not the 7.4 grams alleged to have been found in Hill's possession on the night of December 16, 1999. At the time of Hill's arrest and at final hearing, neither McGuire nor any other witness provided a useful physical description of the baggie alleged to have been in Hill's pocket. The gaps in McGuire's testimony coupled with the unexplained discrepancies between the 7.4 gram baggie alleged to have been found in Hill's possession and the much smaller baggie about which Evanzia testified makes it impossible to determine what, if any, contraband was found on Hill's person. The alleged discovery of the 7.4 gram baggie resulted in the police recommending that Hill be charged with introducing contraband into a correctional facility. Declining to do so, the State Attorney instead charged Hill with possession of cocaine. Prior to the time Hill was transported to the jail, the arresting officers searched Hill's sister's car for contraband. Finding none, the police made arrangements for the car to be impounded and towed to a privately owned lot for storage. After the car was placed in the custody of the towing company, one of its employees claimed to have found two more baggies alleged to contain significant amounts of cocaine in plain sight on the floorboard of the car. Police tested the baggies for fingerprints but found none. There is no credible evidence that there was any cocaine on the floorboard of the car while it was in Hill's possession and control. The testimony of Officer V. Gray (Gray) that he failed to spot the baggies "[because he] didn't have a flashlight to go through the car real good" was so implausible that Gray was readily cross-examined out of it on the next page of transcript. 1/ No criminal charges were brought against Hill on account of these baggies. Although Hill had substantial and legitimate defenses to the criminal charges which the State Attorney did elect to file, Hill accepted responsibility for the arrest by accepting the State Attorney's offer to enter into a plea bargain which would take into account Hill's previously spotless record. The State Attorney, believing that Hill should be afforded an opportunity to atone for the aberrational events of December 16, 1999, and to rehabilitate himself, permitted Hill to plead guilty to a misdemeanor charge of driving while intoxicated, and to dispose of the cocaine charge by entering a pretrial intervention (PTI) program. At the time of the final hearing, Hill was in full compliance with all of the terms of the PTI agreement. At all times material to this case, Hill was appropriately contrite about the DUI arrest. He was and is willing to demonstrate his contrition and his commitment to public service by accepting any assignment, coupled with any degree of probation and/or supervision deemed appropriate by the School Board, to assure that he is fully rehabilitated before being allowed to resume contact with students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order reinstating Hill's employment with the School Board with back pay and benefits retroactive to the date of termination. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 13th day of June, 2001.
The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered March 4, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of these proceedings, the following findings of fact are made: The FEC is the statutory entity that is responsible for investigating complaints and enforcing Florida's election laws, Chapters 104 and 106, Florida Statutes. See § 106.25, Fla. Stat. Lieutenant Wills has been employed by the West Palm Beach Police Department for approximately 23 years and has served as a lieutenant for approximately three years. At the time he was promoted to lieutenant, Lieutenant Wills was serving as the president of the West Palm Beach Police Benevolent Association, Inc. ("PBA"), which is a police union for officers, sergeants, and lieutenants employed by the West Palm Beach Police Department. Lieutenant Wills resigned this position when he was promoted. In May 2004, the time material to this proceeding, Lieutenant Wills served as a representative to the PBA. In May 2004, Lieutenant Wills worked the night shift, from 5:00 p.m. to 6:30 a.m. He supervised a uniformed patrol squad of 10-to-12 police officers and two sergeants. The squad was divided into two units; the first night-shift unit began work at 5:00 p.m., and the second night-shift unit began work at 7:00 p.m. Sergeant Riddle supervised the first night-shift unit, and Sergeant Kapper supervised the second night-shift unit, under Lieutenant Wills's command. The police officers in Lieutenant Wills's squad were required to attend a briefing or "line-up" before they began their patrol or other duties. During the line-up, the officers were briefed on arrest information, bulletins, training, work assignments, and other employment-related matters. The briefings were conducted by Sergeant Kelly, an administrative sergeant who was not under the direct supervision of Lieutenant Wills. Lieutenant Wills often participated with Sergeant Kelly in conducting the briefings for his squad. Officers in the first night-shift unit went on duty at 5:00 p.m., and the briefing for this shift began promptly at 5:00 p.m.; an officer was considered late for work if he or she arrived in the briefing room after 5:00 p.m. The officers in Lieutenant Wills's first night-shift unit routinely began congregating in the briefing room 15 or 20 minutes before the 5:00 p.m. briefing began. They watched television; talked about many different topics, including politics; and generally interacted informally until briefings began at 5:00 p.m. When a police officer was on the police department premises, the officer was expected to obey a direct order from a superior officer, even if he or she was not on duty. If an officer was given an order by a superior officer to carry out work-related duties prior to the beginning of his or her shift, the officer was eligible for overtime pay for the time spent performing these work-related duties. An off-duty officer was not, however, expected to obey anything but a direct order from a superior officer. In an e-mail dated May 4, 2004, Sergeant Peneque, who was the president of the PBA, advised that the PBA planned to endorse Ric Bradshaw, a former chief of the West Palm Beach Police Department, as a candidate for Palm Beach County Sheriff and that the endorsement would be announced at a press conference to be held on May 25, 2004. Sergeant Peneque related in the e-mail that the "chief" was asking that the members of the police department support him by coming to the press conference. Sergeant Peneque sent this e-mail out on the West Palm Beach Police Department "Lotus notes" e-mail system, and it appeared on all of the police department computers. The PBA routinely sent e-mails regarding union business through the police department e-mail system, and the information was generally disseminated to the assembled police officers prior to the start of shift briefings. On May 10, 2004, about 10 or 15 minutes before the beginning of the briefing for the 5:00 p.m. shift, Sergeant Kelly read Sergeant Peneque's e-mail to the officers who had congregated in the briefing room. There were about five or six officers present at that time, and few of them indicated to Sergeant Kelly that they would attend the Bradshaw rally. Sergeant Kelly was upset by this lackluster response and made several remarks to the officers in the briefing room to the effect that they should support "Chief" Bradshaw, that Bradshaw had hired most of them, and that they should show their loyalty by supporting his candidacy for sheriff. Lieutenant Wills came into the briefing room in time to hear Sergeant Kelly's remarks about the lack of support for the Bradshaw candidacy, between 5 and 10 minutes before 5:00 p.m. By that time, more officers had assembled in the briefing room. Before the 5:00 p.m. briefing began, Lieutenant Wills read the PBA e-mail to the officers in the briefing room. Lieutenant Wills asked how many officers planned to attend the Bradshaw rally. Lieutenant Wills was disappointed when only a few officers indicated that they were going to attend the rally, and he said something to the effect that "Chief" Bradshaw had done a lot for the West Palm Beach Police Department.3 A police officer named Paul Creelman spoke up when Lieutenant Wills told the assembled officers about the Bradshaw rally, after one of the officers in the briefing room made a remark that a group of anti-Bradshaw officers were planning to show up for the rally. Officer Creelman remarked, "What time do they get there."4 Officer Creelman meant his remark as a joke. At the time he made the remark, Officer Creelman was sitting in the back of the briefing room; he was eavesdropping on the discussion between Lieutenant Wills and the officers at the front of the briefing room but was not one of the officers engaged in the discussion with Lieutenant Wills. Lieutenant Wills heard Officer Creelman's remark, but he did not respond to the remark. He went on to discuss other matters. In May 2004, Officer Creelman was assigned to the Neighborhood Enhancement Team ("NET"). Officer Creelman and the other NET officers were not members of Lieutenant Wills's squad and attended the 5:00 p.m. briefing as guests, primarily to gather officer safety information. Sergeant Luciano was the sergeant in charge of the night-shift NET officers, and Lieutenant Sargent supervised Sergeant Luciano and the NET officers. Lieutenant Wills had no direct supervisory authority over Officer Creelman. Officer Creelman was present at the 5:00 p.m. briefing for Lieutenant Wills's squad on May 17, 2004. During the briefing, Sergeant Kelly discussed problems that the squad was having with officers abusing sick leave by calling in sick when they wanted a few days off. Lieutenant Wills joined the discussion, and he was emphatic that he would not tolerate the abuse of sick leave by the officers in his squad because it left the squad short-handed and caused safety concerns. Lieutenant Wills discussed the police department's policies regarding sick leave, and, at one point, Lieutenant Wills stated that he had been the president of the PBA; that he knew how things worked; and that he would "fuck over" anyone who "fucked" with him about sick leave. Officer Creelman interjected a comment under his breath, saying "That's sad."5 Lieutenant Wills asked Officer Creelman to repeat his comment, and Officer Creelman did so. Lieutenant Wills demanded to know what Officer Creelman meant by the remark, and Officer Creelman told Lieutenant Wills that he considered his comment about using what he had learned as PBA president against his subordinate officers to be inappropriate. Lieutenant Wills was angry about Officer Creelman's remark and told Sergeant Luciano that he wanted to see him and Officer Creelman in his office after the briefing. When Officer Creelman and Sergeant Luciano came into his office, Lieutenant Wills expressed his anger about what he considered Officer Creelman's derogatory and disrespectful conduct towards him during the briefing. Lieutenant Wills told Officer Creelman that he did not want him "mouthing off" during his squad's briefing and that he thought Officer Creelman was a "smart aleck." To make the point that the incident on May 17, 2004, was not the first time Officer Creelman had "smarted off" to him, Lieutenant Wills told Officer Creelman that he had not forgotten his remark about the anti-Bradshaw rally. Lieutenant Wills then told Officer Creelman and Sergeant Luciano to leave his office. According to Officer Creelman, the reason Lieutenant Wills called him into his office was to address Officer Creelman's conduct in making inappropriate comments during the briefing of Lieutenant Wills's squad.6 Officer Creelman described Lieutenant Wills's manner during the time he was in Lieutenant Wills's office as "normal" and stated that Lieutenant Wills spoke in a low tone of voice.7 In a memorandum dated May 18, 2004, to Assistant Chief Van Reeth, Officer Creelman set out his version of the events that took place on May 10, 2004, regarding Lieutenant Wills's discussion of the Bradshaw rally; his version of Lieutenant Wills's conduct during the May 17, 2004, briefing; and his version of the meeting in Lieutenant Wills's office on May 17, 2004.8 In the May 18, 2004, memorandum, Officer Creelman requested permission to speak with Assistant Chief Van Reeth and the Chief of Police "so that we can all resolve this matter." On May 21, 2004, Officer Creelman filed a complaint against Lieutenant Wills regarding "the manner in which the Lieutenant spoke to officers in briefing." Officer Creelman's complaint was that Lieutenant Wills used "inappropriate language." A copy of Officer Creelman's May 18, 2004, memorandum was attached to the complaint form. Captain Olsen conducted the investigation of Officer Creelman's complaint against Lieutenant Wills, and she concluded that Lieutenant Wills used inappropriate language during the May 17, 2004, briefing when discussing the abuse of sick leave by members of his squad. Lieutenant Wills was disciplined for this misconduct with a verbal reprimand documented in his personnel file. Captain Olsen concluded after her investigation that Lieutenant Wills read the PBA e-mail before the May 10, 2004, briefing began, when Lieutenant Wills and the police officers he supervised were off duty. Because of this, Captain Olsen concluded that Lieutenant Wills did not violate any of the rules or policies of the West Palm Beach Police Department with respect to his remarks about the Bradshaw rally. Neither Lieutenant Wills nor any other member of the West Palm Beach Police Department is expected to enforce Florida's election laws as part of their duties as police officers, and no training with respect to the provisions of Florida's election laws is provided for police officers by the West Palm Beach Police Department or the Florida Department of Law Enforcement. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his professional capacity as a law enforcement officer. Lieutenant Wills has never run for public office or served as a committee chair, a committee treasurer, or a campaign treasurer for a candidate in a municipal, county, or state political campaign. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his personal, individual capacity. Lieutenant Wills was provided with a copy of the rules and regulations of the West Palm Beach Police Department, and he was aware in May 2004 that it was against the police department's rules and regulations for an officer to engage in or discuss political activities during work hours. Notwithstanding this policy, Bradshaw's candidacy for Palm Beach County Sheriff generated a lot of interest among the police officers and was a topic of general discussion at the police department, even when officers were on duty, because Bradshaw had been the Chief of the West Palm Beach Police Department until he retired in early 2004. Summary The evidence presented by the FEC is not sufficient to establish with the requisite degree of certainty that Lieutenant Wills willfully used his supervisory position, authority, or influence for the purpose of coercing or influencing the vote of any of the officers present during the discussion of Bradshaw's candidacy before the May 10, 2004, briefing or of affecting the result of the election for Palm Beach County Sheriff. The evidence presented reflects that none of the officers present in the briefing room prior to the May 10, 2004, briefing had a clear memory of the specific statements made by Lieutenant Wills, and the evidence is not sufficiently persuasive to support a finding of fact that Lieutenant Wills told the police officers assembled in the briefing room that they should support Bradshaw's candidacy for sheriff or that they should attend the Bradshaw rally. It cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reading the PBA e-mail or in making the statement to the officers that Bradshaw had done a lot for the West Palm Beach Police Department was to coerce or influence anyone present in the briefing room to attend the Bradshaw rally, to vote for Bradshaw, or to effect the results of the election for sheriff.9 Even if the evidence were sufficient to support a finding that Lieutenant Wills's purpose was to coerce or influence the officers to attend the Bradshaw rally or to support or vote for Bradshaw for sheriff, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills was aware that his actions violated Florida's elections laws or that he acted in disregard of the law. Evidence that Lieutenant Wills knew that the West Palm Beach Police Department rules and regulations prohibited him from engaging in political activities while on duty is not sufficient to support an inference that Lieutenant Wills should have been on notice that he should consult Florida's election laws prior to reading the PBA e-mail or making any remarks about Bradshaw's candidacy for sheriff. Finally, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills's purpose in telling Officer Creelman on May 17, 2004, that he remembered his remark about the anti-Bradshaw rally was to coerce or influence Officer Creelman's vote for sheriff or the affect the result of the election for sheriff. It is uncontroverted that Lieutenant Wills's purpose in calling Officer Creelman and Sergeant Luciano into his office on May 17, 2004, was to talk to Officer Creelman about his making disrespectful comments during the briefings of Lieutenant Wills's squad, and it cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reminding Officer Creelman of his remark was other than to illustrate Lieutenant Wills's point that Officer Creelman had been disrespectful during briefings on more than one occasion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing in its entirety the Order of Probable Cause entered against Thomas L. Wills on March 4, 2005. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 December, 2005.
