The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the conduct of Petitioner violated the Pinellas County Sheriff’s Office Civil Service Act and the rules and regulations of Pinellas County Sheriff’s Office and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. As a result, Respondent maintains and operates a correctional facility, commonly referred to as the Pinellas County Detention Center, or Pinellas County Jail. Petitioner is a detention deputy employed by Respondent at the Pinellas County Jail (Jail) and has been so employed for approximately fifteen years. Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioner is responsible for the care, custody, and control of inmates incarcerated at the Jail. On May 10, 1997, while employed as a detention deputy by the Respondent, Petitioner was assigned to the B-Wing of the South Division working on the third shift. While on break that day, Petitioner went to the booking area of the Jail to meet his wife for lunch. Petitioner's wife, an employee of the Pinellas County Sheriff's Office, was working that same shift in the booking area. When Petitioner arrived in the booking area, in addition to his wife, also present were Detention Deputies Larry Potts, Lloyd Spain, Denise Borland and Detention Lieutenant Krista Rauch. Spain and Borland were processing an individual being booked into the Jail while Potts was assisting Rice’s wife. Lieutenant Rauch was located at the booking desk in a glassed area. On May 10, 1997, at the time the events in paragraph 3 were transpiring, Mathew Robinson was being booked into the Jail. After a portion of the booking process had been completed, Robinson was seated on a bench in the booking area awaiting a routine medical screening. During this process, Robinson became disruptive and began screaming and yelling. As a result thereof, Spain attempted to calm Robinson and de- escalate his disruptive behavior. When Robinson remained uncooperative, Spain, with the assistance of Potts, took physical control of Robinson and escorted him out of the booking area through a door commonly referred to as the “blue door.” Robinson was not shackled or handcuffed. Petitioner remained in the booking area. After Spain and Potts left the booking area with Robinson, Petitioner detected the shuffling of feet in the hallway area on the other side of the blue door and he proceeded through the door to investigate. Petitioner then observed Potts and Spain with Robinson who was in a half-squatted position with his knees bent. Following behind Potts, Spain, Robinson and Petitioner, was Detention Deputy Borland who had subsequently come through the blue door into the corridor in order to photograph the inmate. As Spain and Potts continued to escort Robinson down the hall, Petitioner followed behind them at a distance until they arrived at the vestibule area at the entrance to the C- Wing. At the entrance to C-Wing, there is a control booth that protrudes into the corridor area. During this entire escort process, Robinson remained unrestricted, other than his being held by Spain and Potts. At some point prior to the incident described in paragraph 10 below, Lieutenant Rauch left the booking area and entered the hallway through the blue door. When Spain and Potts arrived at the C-Wing entrance, the gate was already open. Robinson had escalated his level of resistance by screaming, yelling, fighting, and opposing efforts to walk him through the gate. Prior to the entry of Robinson and the detention deputies into the vestibule area of C-Wing, Robinson began trying to pull away from Spain and Potts and his feet were off the floor in an attempt to break the officers’ efforts to move him forward. However, Robinson did not throw punches, strike blows, or kick. During the escalation of resistance by Robinson, Spain did not lose physical control of Robinson, although he was pulled off balance. Robinson did break away from the hold being exercised by Potts for a few seconds. Neither Potts nor Spain fell to the ground. Neither Spain nor Potts requested the assistance of Petitioner nor were they aware of Petitioner’s presence. As the struggle continued, Petitioner intervened by kicking Robinson in the buttocks. Spain and Potts then took Robinson to the ground. Petitioner assisted in restraining Robinson and escorting him into C-1 Wing. Neither Petitioner nor other deputies have been trained to kick an inmate in the buttocks as a control technique. Kicking is generally used as a technique to impair or disable an inmate. At the time Petitioner kicked Robinson, he was not attempting to impair or disable Robinson. Deputies are taught to kick as a defensive maneuver when an inmate is approaching an officer. The kicking technique generally involves striking the inmate on the side of the leg in the calf area in order to effectuate a take down or redirect the inmate to the ground. The training provided to correctional officers in the use of kicking technique limits its use to circumstances requiring a counter- move to impede a subject’s movement toward an officer. At the time that Petitioner kicked Robinson, Robinson was not coming toward Petitioner. The kicking technique utilized by Petitioner lifting his leg, bringing it to hip level, thrusting the foot forward and kicking the inmate in the buttocks, is not an appropriate defensive tactic. This is not taught as a defensive tactic because it involves striking what is commonly called a “red zone.” Red zone areas include the head, neck and spine, and groin areas. A blow to red zone areas is appropriate only in a deadly force situation because such a blow may cause serious injury or death to the person struck. It is uncontested that the struggle Robinson engaged in with Spain and Potts did not create a situation where the use of deadly force would be appropriate. On May 10, 1997, shortly after the incident in question, Borland prepared an incident report in which she made no reference to Petitioner’s kicking Robinson. Borland was questioned about the incident by Corporal Powell of the Internal Affairs Division on May 28, 1997. During this inquiry, Borland made no reference to the kicking incident. Thereafter, Borland spoke to her supervisor, Lieutenant Rauch, and expressed her discomfort with preparing a report that would implicate Petitioner in misconduct. Lieutenant Rauch instructed Borland to prepare a report reflecting what Borland had observed. Borland complied with Lieutenant Rauch’s directive and, on May 30, 1997, prepared a memorandum. In the memorandum, directed to Corporal Powell, Borland indicated that on May 10, 1997, she had observed Petitioner kick Robinson. In June 1997, Borland told Deputy Corporal Marjeta Salliiotte that she did not want to write the May 30, 1997, memorandum. However, Borland stated that Lieutenant Rauch told her that both Borland and Rauch could get in trouble if Borland failed to write the memorandum. The Pinellas County Sheriff’s Office conducted an internal investigation regarding the incident of May 10, 1997. As part of that investigation, on June 23, 1997, the Chain-of- Command Board took a sworn statement from Petitioner. After giving his account of the events, Petitioner was asked questions regarding the incident by Corporal Powell and Sergeant R. Alphonso of the Pinellas County Sheriff’s Office Inspection Bureau. Prior to the questioning, Corporal Powell instructed Petitioner “to answer questions directed to you during this interview truthfully and to the best of your knowledge.” While being questioned regarding the events of May 10, 1997, Petitioner admitted that he kicked Robinson in the buttocks and that this was observed by Lieutenant Rauch. However, from his point of view, the struggle that ensued between Robinson, Potts and Spain immediately prior to the kick could not have been observed by Lieutenant Rauch. From Lieutenant Raunch’s vantage point, as seen by Petitioner, her view of that struggle had to have been obstructed by the control room. Petitioner’s perception of where Lieutenant Rauch was at the time of the struggle is not inconsistent with that of other detention deputies in the immediate vicinity at that time. In response to questions during the proceeding of June 23, 1997, Petitioner was adamant in his denial that Lieutenant Rauch did not observe the struggle that Spain and Potts had with Inmate Robinson immediately before Robinson was kicked. Throughout his interrogation, Petitioner did not waver from this position, notwithstanding statements from Sergeant Alfonso that Lieutenant Rauch’s written statement gave “the inference that she saw that struggle.” Although Petitioner had responded when asked about the discrepancy in his statement and that of Lieutenant Rauch, Sergeant Alfonso continued to question Petitioner concerning whether the lieutenant observed the struggle. Among the questions asked by Sergeant Alfonso were: “Now, are you saying that [Lieutenant Rauch’s] being untruthful, that she’s lying about this?”; “And so what you’re telling us today is that Lieutenant Rauch is lying about seeing the incident?”; and “Your opinion is that Lieutenant Rauch is a liar?” In response to these questions, Petitioner answered in the affirmative. During the course of giving his sworn statement, Petitioner was asked whether he believed that Deputy Borland “lied in her statement against him.” Petitioner was also asked whether it was his “belief that Lieutenant Rauch put Deputy Borland up to that lie.” Petitioner answered both of these questions in the affirmative. At the time Petitioner responded to these questions, he believed that he was answering truthfully. There were two reasons that Petitioner believed that Borland’s second account of the incident was inaccurate and that Lieutenant Rauch told Borland what to put in the memorandum. First, Petitioner was aware that Borland’s May 10, 1997, incident report made no reference to the kicking incident and that Borland first mentioned the kicking incident in the memorandum dated May 30, 1997. Second, Petitioner based this belief on comments made to him by his wife. According to Petitioner’s wife, Borland had told another officer, Deputy Corporal Marjeta Salliiotte, that Lieutenant Rauch directed Borland to write the memorandum. Petitioner mistakenly concluded or interpreted this comment to mean that Lieutenant Rauch told Borland specifically what to include in the memorandum. After completing its investigation, the Administrative Inquiry Division (AID) presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and, after reviewing the materials provided by AID and giving Petitioner the opportunity to respond further, the complaint was sustained. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 021, relating to the custody arrestees/prisoners, a Level Five violation; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 024, relating to insubordination, use of profanity or insulting language towards a superior officer, a Level Five violation. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of two Level Five violations is the basis for assigning 60 disciplinary points. As a result, Petitioner was assessed 60 disciplinary points. The Pinellas County Sheriff’s Office General Order B-15 identifies a disciplinary range for 60 points to be from a minimum penalty of a seven-day suspension to a maximum penalty of termination. In the instant case, Petitioner was assessed a ten-day suspension. The conduct engaged in by Petitioner in kicking inmate Robinson did not constitute a good correctional practice, and is not consistent with the training or conduct expected of correctional officers. The role of a correctional officer in an altercation is to engage in defensive maneuvers and to gain control of the inmate creating the disturbance. Although correctional officers are allowed to defend themselves, kicking an inmate in the buttocks serves no correctional purpose, does not constitute the proper use of defensive tactics and is not designed to maintain control of an inmate or a situation. Kicking an arrestee or inmate in the buttocks area is not appropriate absent a situation where great bodily harm is being threatened by the inmate. The conduct engaged in by Petitioner in responding to questions during the course of giving a sworn statement do not constitute insubordination. Respondent was required to answer all questions truthfully, that is the truth as he knew or perceived it to be. In the instant case, Petitioner's comments were not made voluntarily nor were they directed to Lieutenant Rauch. Instead, Petitioner's statements were made in response to questions from a member of the Pinellas County Sheriff’s Office Inspection Bureau who was investigating the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding Petitioner guilty of the conduct alleged in Counts I and II of the charging document and suspending Petitioner, without pay, for eight (8) days from his employment as a detention deputy with the Pinellas County Sheriff’s Office. DONE AND ENTERED this 9th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIED Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1998. COPIES FURNISHED: William M. LauBach Executive Director Pinellas County Police Benevolent Association, Inc. 3737 16th Street, North St. Petersburg, Florida 33704 B. Norris Rickey Senior Assistant County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34616 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
The Issue The issue presented is whether Pinellas County Sheriff’s Office (PCSO or Petitioner) properly terminated Christopher Hamilton (Respondent) from his employment as a deputy sheriff for engaging in conduct prohibited in Chapter 89-404, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.3, Rule and Regulations 3.4(d) and 5.21, and General Order Section 3-1.4, Rule and Regulation 2.17.
Findings Of Fact Petitioner is responsible for providing law enforcement and corrections in Pinellas County, Florida. At all times pertinent to these cases, Petitioner employed Respondent as a deputy sheriff. Respondent does not dispute that his conduct violated Petitioner’s rules and regulations. Respondent alleges that the penalty of termination is excessive, inconsistent with the progressive discipline policy, and, therefore, disparate. General Order 3-1.3, Rule and Regulation 3.4(d), relates to “Performance of Duty.” The cited provisions require that “All members will be efficient and effective in their assigned duties, performing them in a competent, proficient and capable manner.” For convenience, the cited provisions are referred to as Rule 3.4(d). The evidence shows that from March 2004 through August 8, 2008, Respondent demonstrated a pattern and practice of violating Rule 3.4(d). The individual violations are undisputed, and it is undisputed that the violations arose from Respondent’s inability to complete required reports, to do so in a timely manner, and to be punctual in attendance. It is also undisputed that the violations arose from events in Respondent’s personal life, which included a divorce and custody battle that precipitated a financial crisis for Respondent and the death of Respondent’s father. Finally, Respondent acknowledged during cross-examination that Petitioner attempted to “work with” Respondent during his personal crises. Petitioner first disciplined Respondent for violating Rule 3.4(d) in March 2004. In January 2005, Petitioner issued a formal reprimand for a second violation. Petitioner issued a second formal reprimand for the third violation in February 2005. In May 2007, Petitioner issued a third formal reprimand for a fourth violation of Rule 3.4(d). On December 6, 2007, Petitioner issued a written reprimand to Respondent for a fifth violation of Rule 3.4(d). On April 10, 2008, Petitioner found Respondent to be a Chronic Offender, as defined hereinafter, and suspended Respondent for seven days for violation of Rule 3.4(d). In June of 2008, Respondent again violated Rule 3.4(d) by failing to complete and submit reports within the required timeframe. Respondent violated Rule 3.4(d) on May 27, 2008, and again on June 24, 2008. Petitioner notified Respondent that he was required to attend a Vehicle Crash Review Board (VCRB) on May 27, 2008. However, Respondent failed to attend the VCRB. Petitioner re-scheduled the VCRB for June 24, 2008, and notified Respondent that he was required to attend that VCRB. Respondent failed to attend the VCRB on June 24, 2008. General Order 3-1.4, Rule and Regulation 2.17, relates to “Timeliness.” The cited provisions state that “Members shall not be late to work without valid reason or authorization,” The cited provisions are referred to for convenience as Rule 2.17. Respondent violated Rule 2.17 by being late to work on February 28 and March 8, 2008. Petitioner disciplined Respondent for both offenses in a single written reprimand. Respondent violated Rule 2.17 by being late to work again sometime between June 18 and July 2, 2008. On or about August 8, 2008, Respondent reported to work approximately 30 minutes late in violation of Rule 2.17, and this proceeding began. On September 11, 2008, Petitioner conducted an Administrative Review Board (ARB) meeting at which Respondent testified. The ARB concluded that Respondent had violated Rules 3.4(d) and 2.17 and found Respondent to be a Chronic Offender of both rules. General Order 3-1.1, Rule and Regulation 5.21 (Rule 5.21), defines “Chronic Offender” as a member of the PCSO who violates the same rule or regulation three or more times within an 18-month period. Respondent is a Chronic Offender of Rules 3.4(d) and 2.17. Respondent violated each rule three or more times within an 18-month period. The progressive discipline policy treats Chronic Offender violations as a more severe “Level Five” violation. Petitioner has issued written guidelines that are followed during the disciplinary process and are contained within General Order 10-2. The goal of General Order 10-2 is to standardize the disciplinary process and make the process fair and consistent in application. Consistency is important to ensure fairness for the member being disciplined and for maintaining accountability throughout the agency. General Order 10-2 sets forth a procedure for assigning points for sustained violations based on their severity level. The points range from Level Five to Level One. Level Five violations result in the most serious discipline. The total of points to be assigned in these cases is determined by considering Respondent’s prior disciplinary record. Additional points are assigned for disciplinary violations within the recent past. Total disciplinary points are comprised of points for the current offense, plus carryover points for recent discipline against Respondent. The range of discipline that is appropriate in these cases is based upon the total number of disciplinary points accumulated. The highest or most severe discipline applies because Respondent accumulated more than 100 discipline points. Respondent’s point total in Case No. 08-4823 is 108.3 points. Authorized discipline ranges from a 15-day suspension to termination of employment. Respondent’s point total in Case No. 08-4824 is 116 points. Authorized discipline ranges from a 15-day suspension to termination of employment. Termination of employment is reasonable in this proceeding. Termination of employment does not impose disparate discipline on Respondent. From 2005 through the date of the final hearing, nine members of the PCSO have been disciplined within the same discipline range as Respondent. Petitioner terminated the employment of seven of those nine members of the PCSO. Four of Respondent’s exhibits are excerpts of the case files of other PCSO members charged with violating Rule 5.21 as was Respondent. In each case, the alleged violation of the Level Five Chronic Offender rule was based upon repeated violations of Level Three rules. Respondent’s Exhibits 2 and 3 each show a member who violated the Level 3 rule, pertaining to abuse of sick leave a sufficient number of times to be considered a Chronic Offender in violation of Rule 5.21. In both cases, it was the member’s first Chronic Offender violation. Authorized discipline ranged from a suspension to termination of employment. In each case, the member received the minimum length of suspension, which is the minimum discipline in General Order 10-2. This is comparable to and consistent with the seven-day suspension Petitioner imposed against Respondent for his first violation of the Chronic Offender rule. The remaining proposed comparator introduced as Respondent’s Exhibit 1 relates to an agency member disciplined for being a Chronic Offender based on repeated violations of Rule 3.4(d). This was the member’s first violation as a Chronic Offender in Rule 5.21. Like Respondent’s seven-day suspension for his first offense as a Chronic Offender, the member in Respondent’s Exhibit 1 received a suspension corresponding to the bottom of the disciplinary range under the disciplinary policy. Prior to Respondent, no other agency member had been found to have violated the Chronic Offender rule a second time. However, Petitioner’s Exhibit 5 shows that subsequent to Respondent’s discipline, the member referenced by Respondent’s Exhibit 2 was disciplined for violating Rule 5.21 a second time. In similar fashion to Respondent, this member was disciplined as a Chronic Offender for the second time with respect to accumulated violations of the same Level Three rule as the first time he was found to be a Chronic Offender. Like Respondent, this member received the minimum suspension for the first violation of Rule 5.21 and was terminated for the second.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order terminating the employment of Respondent. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of February, 2009. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Sherwood S. Coleman, Esquire Pinellas County Sheriff’s Office Post Office Drawer 2500 Largo, Florida 33779-2500 James L. Bennett, County Attorney Office of County Attorney 315 Court Street Clearwater, Florida 33756
