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 J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
