Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 7th day of June, 2018. COPIES FURNISHED: Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
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 The Respondent was certified by the Commission on January 22, 1981, and was issued certificate number 02-026742. At all times material to the allegations of this case, Respondent has been employed as a law enforcement officer with the City of Pompano Beach Police Department. Cocaine is a schedule II controlled substance pursuant to Section 893.03, Florida Statutes. Pursuant to Section 893.13, Florida Statutes, possession of cocaine is a felony. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug and alcohol testing for all police officers employed by the City of Pompano Beach Police Department. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station. Ms. Bobkier, a WCMC employee with four and a half years experience, was responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as DO482663-5. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992. The courier presumably took the samples to NHL where they were given assension numbers by a NHL employee. Neither the courier nor the "assension" employee testified at the hearing. The assension number assigned to sample DO482663-5 was 3303217-5. According to Dr. Donald R. Stalons, the director of NHL, testing on assension sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing. According to the test results for assension sample no. 3303217-5, such sample was positive for cocaine metabolite. The "assension number" referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint. DONE AND RECOMMENDED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 29th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 12, and 21 are accepted. Paragraphs 13 through 20 are rejected to the extent that they conclude the sample was Respondent's. The Petitioner failed to prove the sample was Respondent's as his sample was not transported to the testing center until approximately 7:15 p.m. on September 24, 1992. The sample tested by NHL purported to be Respondent's sample was tested at 2:45 p.m. that same day. This would be physically impossible. To the extent that the paragraphs correctly outline the testing procedures and results at NHL, they could be accepted but are irrelevant as the sample could not have been Respondent's. Paragraph 22 is rejected as it is not supported by the weight of credible evidence. Paragraphs 23 through 32 are rejected as irrelevant and outside the scope of the administrative complaint. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted in a form which can be addressed by either accepting or rejecting a statement of fact. Otherwise, Respondent's proposed findings of fact are rejected as argument. COPIES FURNISHED: Richard E. Lober Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 W. George Allen One River Plaza, Suite 701 305 S. Andrews Avenue P.O. Box 14738 Fort Lauderdale, Florida 33302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Philip Lee Sullivan (Sullivan), has served as Chief of Police for the City of Panama City Beach, Florida since August 10, 1977. Sullivan's salary as Police Chief was $62,326.12 in 1994, and will total $63,211.20 in 1995. As Police Chief, Sullivan's duties include planning, organizing, and directing all activities of the Panama City Beach Police Department. He is also charged with supervision of all members of the police force, with particular attention to personnel at the administrative and supervisory level, and with the investigation and disposition of complaints against police officers. In his official capacity, Sullivan is also required to cooperate with state and federal officers in the apprehension and detention of wanted persons and with other agencies where activities of the police department are involved. Sullivan has the authority to take disciplinary action against an employee of the police department up to and including suspension without pay for 30 days, and can recommend termination to the City Manager. He also completes written performance evaluations on members of his command staff, which is comprised of the Patrol Division Commander, the Investigative Division Commander, the Assistant to the Chief, and the Reserve Division Commander. In 1987, Sullivan began a business as a loss prevention and security consultant, operating as a sole proprietorship. Sullivan's first client was Hilton, Inc. Charles Hilton is the Chief Executive Officer of Hilton, Inc. It was Mr. Hilton who made the initial decision to hire Sullivan. He considered one other person for the work, but rejected that individual based on the fee sought. Sullivan verbally sought approval from the City Manager to contract with Hilton, Inc. The City Manager verbally approved the arrangement. Hilton, Inc. owns and operates five hotels in Panama City Beach: The Holiday Inn Sun Spree, Ramada Inn, Days Inn, Best Western Del Coronado, and Best Western Casa Loma. All except Sun Spree, which was added in 1990, were owned by Hilton, Inc., when Sullivan began contracting with the corporation. Hilton, Inc. pays Sullivan $2,000 a month with an additional fee for background checks. Sullivan's next client was the Bay Point Improvement Association (Bay Point). Bay Point is outside the city limits of Panama City Beach. By letter dated February 2, 1989, Sullivan formally requested approval from the City Manager to accept the position of Director of Security for Bay Point. Approval was granted by letter dated February 15, 1989. Sullivan was initially hired in February, 1989, as Director of Security, but his employment status was subsequently changed to that of an independent contractor, similar to his position with his other private employers. Bay Point pays Sullivan $18,000 per year for his services. Sullivan's next client was the La Vela Beach Club ("La Vela") in March, 1993. He was hired by the club's owner, Alois Pfeffer. Sullivan no longer works for the La Vela Beach Club, but while he was working for the club he was paid $6,000 per year. Sullivan's next client was Boardwalk Beach Resorts, which hired him in September, 1993. Boardwalk Beach Resort is the fictitious name for a limited partnership, Resort Hospitality Enterprises, Ltd. ("Resort Hospitality"). The majority of the stock of Resort Hospitality is owned by People's First Properties, Inc. ("People's First"). Resort Hospitality owns and operates four hotel properties, totaling approximately 625 rooms, on Panama City Beach. Robert Henry, the chief financial officer for People's First, was the person who decided to contract with Sullivan after independently determining to the satisfaction of People's First that Sullivan did not have a conflict of interest. People's First pays Sullivan $18,000 per year with additional fees for background checks. In 1994 Sullivan was paid $6,450 for background checks and as of September 11, 1995, he was paid $4,720 for the background checks performed in 1995. Sullivan incorporated his business as Beach Security, Inc. on December 12, 1993. Sullivan's next client was the Miracle Strip Park/Shipwreck Island (Miracle Strip). He was hired in May, 1994 by the Miracle Strip's General Manager, Shelton Wilkes. Miracle Strip is located on Panama City Beach. Sullivan receives $7,200 per year from Miracle Strip. Sullivan's next client was Spinnakers, where he was hired in July, 1994, by W. B. Sparkman, III. Spinnakers paid Sullivan $6,000 per year. As of the date of the final hearing it was not known whether Spinnakers would continue its contract with Sullivan for the next season. Except for Bay Point, there are no written contracts between Sullivan and any of the businesses with which he contracts. Sullivan has no job description, no set work hours, and no regular meetings with his employers. As part of the services offered by Beach Security, Sullivan makes recommendations to his clients in developing their safety and security policies and procedures, particularly with respect to policies, procedures and training for the security staff. The ultimate decision whether to implement any of Sullivan's recommendations rests with Sullivan's clients. Sullivan is also expected to defend those policies and procedures in court as an expert witness in the event his employer adopts his recommendations and is sued. Sullivan neither sets nor manages security for his clients. He makes recommendations. Sullivan does not hire, fire, or make other employment decisions for the security personnel of his clients. He does not supervise or evaluate the performance of his clients' security staff on a daily basis, and does not evaluate the individual performance of any of his clients' employees. As part of Sullivan's services to Hilton, Inc., Boardwalk Beach Resort and La Vela, Sullivan did background checks for potential employees. Sullivan hired an employee of the police department to do the background checks for him. The background checks were performed at the Bay County Courthouse for local applicants. If the information needed was located in another county or state, Sullivan would contact the clerk of the court at the appropriate location for the information. Getting information from another county or state can be a slow process. The information which Sullivan uses in doing the background checks is information which is available to the general public. The Police Department of Panama City Beach (Police Department) has an agreement with the Florida Department of Law Enforcement to allow the Police Department access to criminal history record information. Access to the information is limited to police department business. If a police department employee desires to access the information, the employee must log in on the computer, which creates a computer-generated log at FDLE. Sullivan personally does not know how to access the information. Sullivan could request a police department employee to access the information for him. Panama City Beach is a popular resort area, which experiences a large influx of teenagers and young adults during spring break. Problems associated with alcohol consumption, including traffic violations and accidents, assaults, and disorderly conduct, are commonplace police concerns, particularly during spring break. Spinnakers and La Vela are clubs located on Panama City Beach which cater to the spring break crowd and serve alcohol. The La Vela has a capacity for about 6,000 people and Spinnakers about 4,000. The Hilton, Inc. hotels, the Boardwalk Beach Resort, and the Miracle Strip also do heavy spring break business. The Miracle Strip deals with more than 600,000 visitors over the course of its season. The police department investigates crimes and responds to calls and complaints made by citizens. The department also investigates accidents and is routinely called any time an ambulance is called. In the past two years the police department has received more than five thousand calls for service at businesses which are located in Panama City Beach and which contract with Sullivan. No evidence was presented that Sullivan has ever disregarded public duty in favor of private interests, or misused confidential police information for the benefit of his private employers. In February 1993, Spinnakers was sued for the wrongful death of one of its patrons. The Complaint alleged that the deceased, Robert Gaither, was involved in an altercation with one or more of the club's other patrons. Spinnaker security became involved, and the other patrons were ejected. When Mr. Gaither left, security allegedly saw these individuals in Spinnakers' parking lot, but took no action. After leaving the club, Mr. Gaither was beaten to unconsciousness by these same people, and was either left or passed out in the street, where he was run over by a drunk driver. The Complaint alleges that Spinnakers' security staff was negligent in its handling of the incident. Although the incident took place before Spinnakers hired Sullivan, Sullivan has given a deposition in the case as a potential expert witness. The Panama City Beach Police Department investigated the death of Mr. Gaither. Part of Sullivan's services to Le Vela has been to instruct its staff on how to handle fights. The owner of the club has complained to Sullivan about reaction from Panama City Beach police officers when fights have occurred at the club. It is the club owner's observation that the police, in protection of their own physical safety, often leave the burden of breaking up a fight to the security officers, or wait until the participants wear themselves out. Since the club's insurance will not pay for damages if the club's security officers get involved in the fight, the owner wants the police officers to intervene at an earlier stage in the fight and has so complained to the police department. At the June 23, 1994 meeting of the Panama City Beach City Council, Sullivan's outside employment as a consultant was thoroughly discussed. Sullivan gave a detailed account of his operation. At that meeting the City Council voted to continue the City's policy of encouraging outside employment of its police officers and allowing police officers to use the police vehicles during off-duty hours as long as the police officer is on call. On October 12, 1995, the City Council of the City of Panama City Beach enacted Ordinance No. 455, which codified the rules governing secondary or off- duty employment by employees of the City of Panama City Beach. Section 2-46 of the ordinance deals specifically with law enforcement officers, including the Chief of Police. Section 2-46(d)(1) of Ordinance 455 provides: The following types of off-duty employment do not, on their face, constitute a conflict of interest for law enforcement officers: Security guard duty protecting premises or property. Security consultant within or without the City. Providing dignitary or official's protection. Conducting pre-employment checks into the applicant's previous criminal history provided that only public records are accessed. Performing accident investigations or providing technical services as otherwise per- mitted by the Department. Ordinance 455 requires that police officers who desire to have outside employment must submit an "Off-Duty Employment Request" form. The forms were made available to the police officers sometime during the early part of December, 1995. Shortly after Sullivan received the forms, he submitted authorization requests for off-duty employment with Bay Point Resort, Miracle Strip Amusement Park, Boardwalk Beach Resort, and Hilton, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Philip Lee Sullivan's employment with businesses within the jurisdiction of the Panama City Beach Police Department and his employment in doing pre-employment application background checks is in violation of Section 112.313(7)(a), Florida Statutes, and recommending that Philip Lee Sullivan be dismissed from his employment as Police Chief of the Panama City Beach Police Department. DONE AND ENTERED this 21st day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4141EC To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: Accepted to the extent that the computer database can be accessed from the Police Department but rejected to the extent that it implies that Sullivan, himself, can physically access the information based on his testimony that he does not know how to operate the computer to get the information. Paragraph 6: Rejected as subordinate to the facts found Paragraph 7: Accepted in substance. Paragraphs 8-12: Accepted. Paragraph 13: The first two sentences are accepted. The remainder is rejected as unnecessary. Paragraphs 14-21: Accepted. Paragraph 22: Rejected as unnecessary. Paragraph 23: The first sentence is rejected as constituting argument. The remainder is accepted. Paragraphs 24-28: Accepted. Paragraphs 29-32: Accepted in substance. Paragraphs 33-34: Accepted. Paragraph 35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted in substance to the extent that the information is available at the Police Department and can be accessed by Police Department staff pursuant to an agreement with FDLE. The remainder is accepted in substance. Paragraph 37: Accepted in substance except for the employment outside the police department jurisdiction. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance that Sullivan requested approval for employment as Director of Security for Bay Point. Rejected to the extent that the request could be construed as a request for blanket approval for Sullivan to do security consulting services. It appears from Sullivan's letter that his employment at that time dealt with more than consulting services given that he had the authority to hire, fire, and direct the security force at Bay Point. Paragraph 3: Accepted to the extent that Beach Security Inc. was incorporated in December, 1993. Paragraph 4: Accepted in substance. Paragraph 5: Accepted to the extent that Sullivan has submitted the off-duty employment authorization requests. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting argument. Paragraph 8: Rejected as subordinate to the facts found Paragraph 9: Rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraphs 11-15: Accepted in substance. Paragraph 16: Accepted as not supported by the greater weight of the evidence. Paragraph 17: The last sentence is rejected as not supported by the greater weight of the evidence that such an arrangement could not tempt dishonor. The remainder is accepted in substance. Paragraph 18: The first sentence is rejected as not supported by the greater weight of the evidence. The first part of the second sentence is accepted in substance. The last part of the second sentence is rejected to the extent that although the businesses were anticipating that Sullivan would gather his information from public records, human nature being what it is, if Sullivan knew that an applicant was a suspect in a criminal investigation the employers would not want Sullivan to recommend that the applicant be hired. Paragraphs 19-22: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mary Ellen Davis, Esquire Hilton, Hilton, Kolk, Penson & Roesch Post Office Box 1327 Tallahassee, Florida 32308 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
