Findings Of Fact The Petitioner, James Lee Church, is a white male who has been an employee of the Respondent, Department of Corrections since May of 1990. The Petitioner was originally employed as a Correctional Probation Officer, but in June of 1991 accepted a voluntary demotion to Human Services Counselor and relocation to Lake Correctional Institution, LCI, in order to attend graduate school in Orlando, Florida. In early 1993, the Petitioner applied for promotion to a position of Correctional Probation Officer I, also referred to as a classification officer, at LCI. Although this would have been a promotion from the position which he held, this is the same entry level position from which he had earlier taken a voluntary demotion in order to relocate. It can be inferred that the Petitioner was familiar with the job duties of the position which he had earlier held at another institution which included counseling inmates, computing gain time, setting up inmate work assignments, educational goals and social/religious programs. In March, 1993, Paula Hoisington, a black female, was Classification Supervisor at LCI, and reviewed all thirty applications for the Classification Probation Officer I position for which the Petitioner had applied. The Petitioner's qualifications exceeded the required educational and practical experience, and he had been previously employed by the Respondent in a similar position prior to relocating to LCI. Ms. Hoisington and the Petitioner discussed his application before the selection was made, and Ms. Hoisington advised the Petitioner that she was not putting his name forward for the promotional opportunity because she was aware he had applied for another position. The Petitioner queried Ms. Hoisington regarding whether that meant he would get the other position, and she advised him that it did not. The Petitioner advised her that he really was serious about putting his name forward for the instant promotion and desired to be interviewed. Ms. Hoisington excluded the Petitioner for the interview process which is required for recommendation for the promotion, and selected eight applicants (four white males, two black males, one white female, and black female) to be interviewed by the panel making promotional recommendations to the Superintendent of LCI. The panel recommended three candidates, two black males and one white male, and the Superintendent selected Willie McKinnon, a black male to fill the position. Mr. McKinnon had been employed as a correctional officer for eight years and a classroom teacher for three years prior to that, and possessed a degree in sociology and had worked as a social worker. In March 1993, the Petitioner applied for the promotional position of Human Services Supervisor at LCI, the position which had been discussed with Ms. Hoisington. This position required oversight of Tier II substance abuse program at LCI and supervising LCI personnel and staff provided by an outside vendor. Ms. Hoisington again selected the applicants to the interviewed, and this time included the Petitioner in the list. She also prepared the synopsis of each applicant's background and experience which was provided to each member of the panel. The panel consisted of a white female, two white males, and Ms. Hoisington. It recommended three applicants, two black females and one white male to the Superintendent, who selected the black female. The person selected had worked as a Human Services Counselor for three and one half years, and been employed previously by the Department of Health and Rehabilitative Services and had a degree in criminology. Ms. Hoisington and another member of the panel gave the Petitioner a bad score on the interview because he was perceived as arrogant and pompous because he acted as though he was the best candidate for the position. In October 1993, the Petitioner received a promotion to Correctional Probation Officer I. In March 1994, the Petitioner applied for promotion to Correctional Probation Officer II. The Petitioner was interviewed for this promotional opportunity, but was not selected by the panel who recommended a white female, a black female, and a white male to the Regional Administrator, who was the appointing authority. A white female was selected from the individuals recommended. In December 1993, the Petitioner applied for the promotional position of Correctional Probation Specialist, a new position overseeing various substance abuse programs throughout Region III (Central Florida) of Respondent. The application was made before the Petitioner's charge of discrimination by Ms. Hoisington was made to the Commission in January 1994. In the interim, Ms. Hoisington had been promoted to the Regional staff, and in her new position selected the persons to be interviewed for the position of Correction Probation Specialist for which the Petitioner had applied. Again, Ms. Hoisington put together the resumes for the panels consideration and served on the panel. The Petitioner protested Ms. Hoisington's participation in this process to the Respondent through its counsel, and suggested to Respondent's counsel that it was a conflict of interest for Ms. Hoisington to serve on the panel, which included of two white females and Ms. Hoisington. The Respondent refused to take Ms. Hoisington off the panel which recommended one black male and one white female for the position. The hiring authority, a white male, selected a white female who had worked for the Department nine years to fill the position. The Petitioner had a degree in biology, had teaching experience, was a certified correction probation officer, had work experience in West Virginia as a classification supervisor, and had work experience in North Carolina administering and monitoring grants and grant moneys to daycare providers. He had worked in the Tier II drug program during his employment by the Department, and would have been qualified by education and experience for a supervisor's position in this area. The Petitioner was promoted to Correctional Probation Officer II in September 1994. Classification of jobs and validation of requirements for positions in career service was performed by the Department of Administration during the initial period of Petitioner's employment by Respondent, and by the Department of Management Services later in his employment pursuant to statute. The questions used by interview panels for positions within the Department are part of a qualification examination. These examination questions have not been validated relative to the various jobs within the Department of Corrections, and validated to determine their ability to accurately predict job performance by applicants. They are used by panels to assess the applicants and are scored; however, there is a subjective component to the assessment of applicants as revealed by the low grades received by the Petitioner for "arrogance" by panel members in his interview for the Human Services Counselor Supervisor position. Attitude was not a "scorable" component of the test, yet it was determinative in the minds of two of the evaluators. There is no evidence that the questions were racially biased, or that they were the basis of racial discrimination against the Petitioner. The Petitioner's supervisor, Ms. Ramirez, did make statements to Ms. Hoisington which indicated that he was not a team player; however, she also advised Ms. Hoisington that Petitioner did his job as she instructed him to do it. Ms. Hoisington testified regarding this, and Ms. Ramirez' affidavit is not inconsistent with Ms. Hoisington's testimony. The Department is an employer. The Department has been determined to have discriminated against Hispanic and black females in hiring for certain positions which are not at issue in this case. There is no evidence that the Department has discriminated generally in the past against white males in its hiring practices. The only evidence presented on racial discrimination is that outlined above.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's complaint be dismissed. DONE and ENTERED this 15th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 15th day of June, 1995. APPENDIX CASE NO. 94-4480 The parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Proposed Order Paragraph 1-3 Subsumed in specific findings. Paragraph 4 No evidence was received that Ms. Hoisington's refusal to place Petitioner's name on the interview list was a violation of Departmental rules. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6-8 Subsumed in Paragraph 19. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 18. Paragraph 11 Cannot be determined from the information provided and is irrelevant. Paragraph 12-20 All of these findings relate to the fourth promotional opportunity, in which a white female was recommended by the panel and hired. The Petitioner failed to make a showing of racial prejudice in this instances, about which evidence was received because it supported the previous allegations; however, the Petitioner did not plead retaliation in his complaint and no findings will be made on allegations about retaliation. Paragraph 21,26-28,30 Subsumed in Paragraph 18. Paragraph 22 Subsumed in Paragraph 17. Paragraph 23-25,29 Legal arguments. Respondent's Findings Proposed Order Paragraph 1-4 Paragraph 1-4. Paragraph 5 Rejected as contrary to more credible evidence. Paragraph 6,7 Paragraph 5. Paragraph 8a,8b,9 Paragraph 6,7,8,9. Paragraph 10,11,12 Paragraph 10,11. Paragraph 13 Paragraph 12,13. Paragraph 14 Subsumed in Paragraph 18. Paragraph 15 Subsumed in Paragraph 15. COPIES FURNISHED: James Lee Church 907 Foresthill Drive Clermont, FL 34711 Susan Schwartz, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 31st day of December, 1991.
The Issue The Issue for consideration herein was whether the Respondent's certification as a corrections officer in Florida should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Commission, was the state agency responsible for the certification of law enforcement and corrections officers in this state, and the Respondent, Richard J. Havey was a certified law enforcement officer employed by the Indian River County Sheriff's Department. On September 5, 1990, Sgt. Alfonzio Washington, of the St. Lucie County Sheriff's Office, responded to a disturbance call at a residence on Hummingbird Lane where, reportedly, an individual was threatening to kill himself. When he arrived at the residence, Sgt. Washington saw the Respondent engaged in conversation with two sheriff's deputies. Respondent was ordering the deputies off his property. At this point, individuals identified as respondent's parents asked the deputies to leave, indicating that if they did, the Respondent would calm down. After some further discussion, Respondent did, shortly thereafter, calm down. As a courtesy to the Respondent's status as a law enforcement officer, he was not arrested even though he appeared to be under the influence of alcohol. Sgt. Washington was led to believe that at the time, the Respondent was having marital problems and was upset, and in cases of that nature, it is Sheriff's Department policy to help officers with alcohol or stress problems straighten out. He thereupon directed the other deputies to leave the area and they did. Somewhat later that same evening, Detective Robert Gregg went to the Respondent's residence in response to another disturbance call. He had been told of the previous disturbance there and was advised that weapons were present. When he arrived, shortly after Deputy Walton got there, he spoke with the complainant, Mrs. Barstow, Respondent's mother at the door. As she approached, the Respondent stepped in front of her and told the officers they had no warrant and to get off his property. The officers, however, said they were there to speak with Mrs. Barstow who was beckoning them into the house. Just as Lt. Miller came up to the door and started in, the Respondent, who was loud and belligerent, shoved him when Miller asked Respondent to move so they could speak with his mother. At this, the other officers attempted to handcuff the Respondent and when he resisted they wrestled him to the ground where they placed cuffs on his wrists behind his back. All during this time, Respondent was saying that they shouldn't have done that because he was one of them. As a result of this scuffle, Respondent sustained an abrasion to his forehead and the officers took him to Longwood Hospital for treatment. In the car, during the ride there, Respondent was still angry and kept hitting his head against the plexiglass screen between the front and rear seats. He also made some unspecified threats. After being treated for his injuries and released, Respondent was then arrested for battery on a law enforcement officer; for disorderly conduct, and for intoxication. In Gregg's opinion, based on the many drunks he has seen over his career, Respondent was intoxicated. Lt. Miller basically confirms the testimony of Detective Gregg. When he arrived at Respondent's home, the other officers were already there and he could hear the Respondent yelling. Respondent claimed he didn't call the police and because they didn't have a warrant they should leave his property. Miller saw Mrs. Barstow beckon to Deputy Walton to come into the house. As she started to enter, Respondent put up his hand to bar her and Miller told him they were going to come in to talk to Mrs. Barstow. At this, Respondent pushed out at Miller, forcing him up against the wall to the right of the door when looking out, and, reportedly took a swing at him. No other evidence was presented to confirm the attempt to strike and it is found that considered in its worst light, the evidence shows only a push of Miller by Respondent. To be sure, Miller and all the other officers were in uniform and on duty. Miller and all the other law enforcement personnel who testified indicate that the law enforcement profession is stressful - especially the job of a corrections officer such as that held by Respondent due to the concentration of difficult people with whom the officer must regularly deal. Miller supervises more than 30 individuals and over the years, has evaluated a lot of officers. Alcohol problems are not at all uncommon nor are marital problems, but most officers can cope with them and have been able to resolve them one way or another to resume productive law enforcement careers. In his opinion, a police department has an obligation to assist a troubled officer to alleviate his or her alcohol and other problems in a joint effort by both parties. If Respondent has completed a rehabilitation program and does not now drink, this would weigh in his favor. The same would be true regarding his marital problems, especially if the initiative came from him. His past record should also be taken into account if it is good. This one incident, under the circumstances here regarding Respondent's personal stress and alcohol problem, should not prevent him from continuing in law enforcement, Miller believes. Lt. Phil Redstone, the Commander of the Indian River County Sheriff's Department's Internal Affairs Division and an expert in toxicology and the effect of alcohol on the body and in officer evaluation reviewed the Respondent's case, interviewing not only Havey but also his wife and parents. He determined that before this incident, Havey had been drinking heavily because his wife had told him she was leaving him and taking the children. Added to this was the pressure of having just built a new home and the stress he was experiencing at work and as a result, he threatened to kill himself. Havey thought his wife had called the police and when they first came, the meeting was congenial. Then Respondent's parents came and he became more upset, breaking a few items at the house. When the second set of deputies came, he was by then quite upset and admitted to ordering them off his property and to obstructing their entrance to his house in response to his mother's invitation. However, Havey denied either swinging at or shoving Lt. Miller or making any threats to the officers during their transport of him to the hospital. Redstone found, as a result of his investigation, that Respondent's conduct was contrary to Department policy and the case was sent to the Department's Disciplinary Review Board for a hearing. This Board, made up of 5 Sheriff's Department employees, after hearing the evidence against the Respondent, found he did not commit a battery upon a law enforcement officer and did not resist apprehension with force. It found, however, that he was guilty of misconduct and as a result, Respondent was discharged from employment. In his letter of discharge, the Sheriff noted that if Respondent were to be found not guilty of the charges, he would be eligible for rehire. After the incident, Respondent was charged with battery on a law enforcement officer and resisting arrest with violence. He plead nolo contendere to a lesser offense of simple battery and resisting without violence and was placed on probation with adjudication of guilt withheld. He successfully completed all the terms of his probation and was released early. Redstone also found that up to the time of this incident, and since, Respondent's conduct has been exemplary. He completed the terms of the probation imposed upon him by the court and has had no other problems. He has not been employed by the Indian River County Sheriff for the past two years, but, since he has completed probation properly, he could be rehired. Redstone believes Respondent is of good character and has a good work record and that the instant situation was an isolated matter totally out of character. In fact, it was the Sheriff's Department which suggested to Respondent that he seek expungement of and sealing of court records. Taken together, Lt. Redstone concluded Respondent is fit to be a police officer now. Respondent denies having either punched or swung at any officer. He has too much respect for the profession. He admits to being very vocal and to using obscene language, but on the night in question, he was very much under the influence of alcohol and was in a rage and out of control. Nonetheless, he was not so intoxicated he can't remember what happened. This was an isolated incident. His drinking had been building up for about two months prior to this incident. He admits Officer Walton was trying to get past him into the house and he told the officers to get out because he didn't want them there. He claims, however, he kept his hands at his side because he knew if he raised them it would be taken as a hostile act. When he realized the officers would not leave, he turned to go back into the house and grabbed for the door handle. Just as he grabbed it, he found he couldn't breathe and was hit hard from behind. He fell to the ground and hit his head on the concrete. He admits to trying to cover his face but claims he did not intentionally resist being handcuffed. Respondent claims that once he was handcuffed, he walked voluntarily to the patrol car and got in. He further claims he was in the car for 30 minutes without being told he was under arrest for anything. The day after his arrest, after being incarcerated for about 6 hours, he was released and driven home by his bondsman. He voluntarily signed himself up for the 30 day alcohol program and is glad he did. He now has his drinking under control and believes he can handle his job and the other stress points now. He wants to stay in law enforcement. Mrs. Barstow describes her son as a very kind, good hearted, and reliable man who only started to have alcohol problems after close to 10 years of good service with the St. Lucie and Indian River County Sheriffs' Departments. On the night in question she was at her son's house because she had received a call that he was despondent. She knew he had been drinking and was afraid he might do something foolish. She was upset at the way the incident was allowed to progress. She had called the police to get help for her son and before she knew it, he was on the ground and injured. In conjunction with Respondent's wife, Mrs. Barstow had Respondent committed under the provision of the Baker Act to insure he got the help he needed. He spent 30 days in Harbor Shores, a rehabilitative center, and since his release has stopped drinking and attends Alcoholics Anonymous meetings once or twice a week. Respondent is still married and has 2 children. Their relationship is considered good. Respondent is known to have high moral values and is an honest individual. He liked being a law enforcement officer though it took its toll on him. The birth of his children so close to each other along with the fact that his wife works in law enforcement also created pressure. His being out of work, though he has aggressively sought other employment, has placed a financial strain on the family. Nonetheless, he has not resumed his drinking. Respondent entered his plea of nolo contendere to the charges against him because he was advised it was in his best interests to do so. His plea was based on the alleged representation that if he was convicted of no more than a misdemeanor, he'd be rehired. Had he known he would not be rehired, he would have demanded trial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered placing Respondent on probationary status for a period of one year subject to such terms and conditions as the Commission may impose. RECOMMENDED this 25th day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the word "intentionally". Accepted. - 25. Accepted. 26. & 27. Accepted and incorporated herein. & 29. Accepted and incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. Accepted and incorporated but a restatement of the evidence. - 17. All accepted and incorporated but noted to be a re- statement of the testimony. COPIES FURNISHED: Dawn Pompey, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Michael Spotts, Esquire 2400 South Federal Highway Stuart, Florida 34994 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 14898 Tallahassee, Florida 32302
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
The Issue Whether the Petitioner is eligible for special risk/high hazard credit for his employment by the Collier County Sheriff's Department from February 1970 to September 1971.
Findings Of Fact On February 11, 1970, Petitioner Grady Johnson ("Petitioner") became employed by the Collier County Sheriff's Department as a radio operator. In his position as a radio operator, the Petitioner was responsible for communications between the Collier County Sheriffs Office and road patrol officers. During the period of time the Petitioner was employed as a radio operator, he generally worked the shift from approximately 3:00 p.m. to 11:00 p.m., occasionally worked the 11:00 p.m. to 8:00 a.m. shift and infrequently worked the 8:00 a.m. to 3:00 p.m. shift. As the radio operator, the Petitioner's primary responsibilities were to operate the radio communications system for the Sheriff's Department. Petitioner was not a full-time Deputy Sheriff and did not perform the duties of a full-time criminal law enforcement officer. During various evening hours, the Petitioner, as the radio operator, was the sole county employee on the detention premises. On occasion the radio operator would assist in the physical restraint of a prisoner pending the arrival of deputies, however, such duties were not required on a full-time basis and were not a part of the Petitioner's primary responsibilities. The radio operator was not required to assist in admitting prisoners to the detention facility on a regular basis. Admission forms were generally completed by an arresting officer. The newly-admitted prisoner was generally escorted to a cell by a "turn-key" (another prisoner who was apparently trusted by authorities to handle such tasks). If assistance was required by the turn- key, it was generally provided by the arresting officer. Upon becoming employed as a radio operator by the Collier County Sheriff's Department, the Petitioner was enrolled as a member of the State and County Officers and Employees' Retirement System, (commonly referred to as the "SCORES" system.) The SCORES system provided a "high hazard" classification for certified law enforcement personnel. During the relevant time at issue in this proceeding, the Petitioner was not included within the "high hazard" category because he was not included within the "law enforcement officer" classification of the system. The Collier County Sheriff's Department did not certify the Petitioner as a "high hazard" employee under SCORES. In December 1970, the Petitioner elected to enroll in the newly- established Florida Retirement System ("FRS"). The FRS included a category of "special risk" employees who are entitled to increased retirement credits. During the period of employment as a radio operator, the Collier County Sheriff's Office did not designate the Petitioner as a "special risk" employee and did not pay enhanced contributions into the retirement plan on his behalf. On October 16, 1971, the Petitioner was promoted to a road patrol position within the Collier County Sheriff's Office, at which time, the Petitioner was certified by the employer as holding a "special risk" position. The Respondent approved the Petitioner's enrollment in the special risk class in October 1971.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a Final Order be entered denying the Petitioner's application for high hazard or special risk membership in either SCORES or the FRS. DONE and RECOMMENDED this 23rd day of December, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 23rd day of December, 1992. APPENDIX CASE NO. 92-3033 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact fail to comply with Rule 60Q- 2.031(3), Florida Administrative Code, which requires that proposed findings be supported by citations to the record. Although the Petitioner's proposed findings fail to set forth such citations, the Hearing Officer has reviewed the transcript and exhibits in order to set forth the following rulings. Accordingly, the Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, unnecessary. Last sentence rejected, contrary to greater weight of credible and persuasive evidence which establishes that the Petitioner's primary responsibilities were as the radio operator. 5, 6. Rejected, unnecessary. Rejected, not supported by credible and persuasive evidence. The greater weight of the evidence establishes that the Petitioner's primary responsibility was to operate the radio communications system linking the road deputies. Other responsibilities were secondary and were preformed on an irregular basis. "Booking" of prisoners was primarily handled by the arresting officer and "turn- key". Rejected, contrary to the greater weight of the credible and persuasive evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan B. Kirkland Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 Donald P. Day, Esq. Courtland Plaza, Suite 309 2500 Airport Road South Naples, Florida 33962 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, 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 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
The Issue The issue is whether Respondent continues to be qualified for certification as a correctional officer.
Findings Of Fact The Commission, among its other duties, is empowered to certify, and revoke the certification of, officers, instructors, including agency in-service training instructors, and criminal justice training schools. Mr. Paige was certified by the Commission and was issued Correctional Certificate No. 45658 on July 1, 1981. He has continued to be certified since that time. On November 23, 2004, Mr. Paige was riding in a truck with Mr. Givens. The truck was traveling south on County Road 229, in Baker County, at about 2:20 in the morning and the truck's tag light was not functioning. Cpl. Lagle was patrolling on the same road at the same time and observed the truck and noted that the tag light was not functioning. Cpl. Lagle stopped the truck. After the truck pulled to the side of the road, Cpl. Lagle approached the driver's side of the vehicle. The window was down. As Cpl. Lagle requested the driver's license and the passenger's identification, he smelled marijuana smoke. Cpl. Lagle identified the driver as Mr. Givens. The passenger, Mr. Paige, did not provide identification as requested. Both Mr. Givens and Mr. Paige appeared nervous and Cpl. Lagle observed Mr. Paige trying to hide something. Cpl. Lagle asked Mr. Givens to exit the truck and to move to the front of the truck. Mr. Givens did as instructed. While at the front of the truck Cpl. Lagle asked Mr. Givens if they had drugs in the truck. He said no, but commented that they "had just smoked some." Mr. Paige was in the truck when this conversation occurred. Subsequently Cpl. Lagle walked to the passenger side of the truck and opened the door. A Budweiser beer can fell on the ground as the door was opened. Cpl. Lagle asked Mr. Paige to exit the vehicle. During a pat down search, Cpl. Lagle found a plastic bag of green vegetable matter which he believed was marijuana, hidden in the waistband of Mr. Paige's trousers. He handcuffed Mr. Paige and placed him in his patrol car. Cpl. Lagle performed a field test on the green vegetable material and it was positive for cannabis, which is the formal name for marijuana. He informed Mr. Paige that he was under arrest. Mr. Paige told Cpl. Lagle that he was a correctional officer and that he had "information." Cpl. Lagle transported Mr. Paige to the Baker County Sheriff's Office Annex so that he could discuss his "information" with narcotics officers of the Baker County Sheriff's Office. Upon arrival at the Annex he was searched and seated in an interview room. He was interviewed by Narcotics Investigator David Bryant. After the interview, Mr. Paige stood up and a second bag of green vegetable matter fell from his pant leg. Cpl. Lagle picked it up and the two officers together determined that this substance was also marijuana. Mr. Paige told the officers that the marijuana belonged to Mr. Givens. The marijuana that was seized weighed less than 20 grams, so Mr. Paige was charged with the misdemeanor of possessing less than 20 grams of marijuana. He subsequently pleaded nolo contendere to the charged offense. It is found by clear and convincing evidence that Mr. Paige possessed marijuana, in an amount less than 20 grams, on or about February 23, 2006.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an order finding that Roosevelt Paige lacks moral character as defined by the commission and revoking Correctional Certificate No. 45658, which is currently held by Roosevelt Paige. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of July, 2006. COPIES FURNISHED: Roosevelt Paige Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
