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 Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Janadra L. Bolling was certified as a correctional officer by the Criminal Justice Standards and Training Commission on February 3, 2004, and was issued correctional certificate number 237692. At all times material hereto, she was employed as a correctional officer at the Century Correctional Institution. On June 16, 2007, Respondent's father was the owner of a 2005 Nissan Maxima. Respondent, who was listed as a driver, was driving that vehicle that day. On that date, Respondent asked Captain John Chance, her immediate supervisor, for permission to leave work due to having a sick child and was granted permission to leave. Later that day, Respondent called Sergeant Patricia Archie and stated that she had been in a car accident at the intersection of Highway 29 and Molino Road, totaling her vehicle. She stated that her car had rolled over twice and that she was waiting for an ambulance. Still later that day, Respondent called Captain John Chance. She advised him that she had gone to the hospital, had been examined there, and had been told not to return to work until she went to her personal physician on Monday, June 18. When Captain Chance returned to work on June 19, he was advised that no one had heard anything further from Respondent. He attempted to contact her that day but was unsuccessful. On Wednesday, June 20, Respondent called and advised Captain Chance that she had gone to her doctor on Monday, the 18th, and that he had told her not to return to work until Monday, June 25. Respondent said she would bring a doctor's note with her at that time. On June 20, 2007, Respondent's father's car was photographed in the Wal-Mart parking lot. The car did not show any collision damage, and particularly did not show the damage one would expect to see on a vehicle that had rolled over twice and been "totaled" four days earlier. On June 25, Captain Chance ordered Respondent to write a report concerning the car accident she had in June and the reason why she had failed to provide a note from her doctor as she had been required to do. Respondent advised him that she would not write a report, that she intended to speak to the Colonel instead. Also on June 25 Respondent spoke with Colonel William Watson, advising him about her accident and complaining that she was being harassed by staff (1) requiring a note from her doctor regarding her absence from work and (2) photographing a car in the Wal-Mart parking lot. The Colonel asked her if she had supplied the doctor's note, and Respondent admitted that she had not done so but that she would. A short time later she spoke to the Colonel again and said that her doctor had told her not to lift over ten pounds. The Colonel advised her that she would need to bring in a doctor's note with that limitation written on it and that she could not return to work until she was capable of performing all of her duties. On June 27, 2007, Inspector Ron Castle, who had taken the photographs of the car at Wal-Mart, contacted Respondent's father's auto insurance company, Respondent's father's auto finance company, and the Florida Highway Patrol. None of those entities had any record of an accident report or claim filed as to any accident occurring on June 16, 2007. On July 9, 2007, Respondent presented a note from a chiropractor dated July 5. The note indicated that Respondent had presented herself for treatment on June 25 with complaints of neck and lower back pain and headaches. At that time, the doctor recommended that she not return to work for two weeks. By the time the note was written on July 5, however, the doctor had released Respondent to return to her normal work activities. On July 13, 2007, Sacred Heart Hospital faxed to the Colonel a work release stating that Respondent could return to work without restrictions on July 15. The work release made no reference to any auto accident. Inspector Ron Castle, who was also employed at Century Correctional Institution, was assigned two investigations regarding Respondent. The first involved an allegation of falsifying records and documents and related to Respondent's medical excuse(s). On August 21, 2007, Respondent was placed under oath and interviewed by Inspector Castle regarding her June 16 auto accident. Respondent was uncooperative and refused to discuss her auto accident in any detail, saying it was none of Castle's business. She did, however, maintain that she had had an accident. On September 10, 2007, Respondent turned in a medical slip from a Dr. Russo dated September 4, 2007, which read "Home rest due to illness at least until 9/09/07." The original of the doctor's note retained in the doctor's file read "until 9/07/07" and not "until 9/09/07." The second investigation involved allegations of improper conduct, conduct unbecoming, refusing to answer questions during an investigation, insubordination for refusing to submit an incident report, falsifying documents, knowingly submitting inaccurate or untruthful information, and providing untruthful testimony. Respondent's earlier assertions and subsequent testimony that she was in an auto accident on June 16, 2007, which resulted in substantial damage to her car and required her to take time off from work are false. There is no evidence to support her claim: no accident report, no insurance claim, no notice to the lien holder, no damage to the vehicle, and no documentation for medical treatment related to an auto accident. Respondent submitted to her employer a medical note on which she had altered the date on which she could return to work, giving herself extra time off to which she was not entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her certification as a correctional officer. DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2009. COPIES FURNISHED: Sharon S. Traxler, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Janadra Bolling Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
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
