The Issue The issues in this case are whether Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes (2008),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Rodriguez was certified as a correctional officer in the State of Florida by the Commission on May 18, 2004, and was issued Correctional Certification No. 240475. On or about February 10, 2009, officers from the Kissimmee Police Department and St. Cloud Police Department participated in an undercover police operation geared to targeting individuals that intend to commit crimes involving narcotics or prostitution. They created a false advertisement for prostitution services on the website, Craigslist. The advertisement consisted of photographs and an undercover phone number to contact for sexual services. The advertisement did not indicate that it was an undercover operation. On or about that same date, Mr. Rodriguez placed a phone call using the same number on the advertisement. At the time Mr. Rodriguez placed the call, he was unaware that the advertisement was part of an undercover operation. During the phone conversation, Mr. Rodriguez communicated with Detective Takeya Close (Detective Close), an undercover agent who posed as a prostitute. Detective Close did not identify herself to Mr. Rodriguez as an undercover agent. Mr. Rodriguez communicated to Detective Close that he desired sexual services from her in exchange for money. Detective Close informed Mr. Rodriguez that the price for sexual services ranged from 50 to 80 dollars. A “quickie” service consisted of 15 minutes or less of sexual activity and cost 50 dollars. A “full service” consisted of a half-hour of sexual activity and cost 80 dollars. Mr. Rodriguez told Detective Close that he wanted a “full service” and was willing to pay her either price for her sexual services. Detective Close then provided Mr. Rodriguez a meeting location, a residential house at 4903 Newton Court in St. Cloud, Florida. Law enforcement used the residential house as part of the undercover operation. They agreed to meet at 8:45 p.m. Mr. Rodriguez arrived at the agreed time at the St. Cloud residential house that was part of the undercover operation. Detective Close, posed as a prostitute, greeted Mr. Rodriguez at the front door. Once Mr. Rodriguez entered the house, law enforcement officers arrested and detained him. During a search of Mr. Rodriguez incident to his arrest, law enforcement officers discovered his cellular phone, which contained the undercover phone number in the call history log, and 50 dollars cash. Detective Close’s credible testimony was that, on or about February 10, 2009, Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and arrived at the St. Cloud undercover residential house attempting to engage in prostitution. Mr. Rodriguez’s testimony that the purpose of his communication with Detective Close and his arrival at the St. Cloud residential house was to receive a massage was not credible. His cellular phone showed that he had called the undercover number and that he went to the St. Cloud undercover house at the agreed time. On or about April 12, 2009, Mr. Rodriguez was driving a white SUV. Devon Littlejohn (Ms. Littlejohn), a prostitute, was standing on the corner of Wakulla and Orange Blossom Trail, an area known for prostitution activity. When Mr. Rodriguez drove past where Ms. Littlejohn was standing, Ms. Littlejohn waived at him. Mr. Rodriguez made a U-turn and drove up to Ms. Littlejohn. Ms. Littlejohn approached Mr. Rodriguez while he was in his vehicle and engaged in conversation with him. Ms. Littlejohn solicited sexual services to Mr. Rodriguez by asking him if he wanted a “date.” Mr. Rodriguez answered affirmatively and then asked Ms. Littlejohn if she had a room. Ms. Littlejohn answered yes. Mr. Rodriguez then asked Ms. Littlejohn about the price for her sexual services, and she informed him that “full service” costs 80 dollars. Mr. Rodriguez agreed to pay Ms. Littlejohn 80 dollars in exchange for her sexual services. Ms. Littlejohn entered the passenger side of Mr. Rodriguez’s vehicle. Mr. Rodriguez then drove off with Ms. Littlejohn inside his vehicle. On April 12, 2009, Law Enforcement Sheriff Deputy Scott Bearns (Deputy Bearns) of the Orange County Sheriff’s Office was patrolling the Orange Blossom Trail area when he drove pass Mr. Rodriguez’s vehicle. Deputy Bearns conducted a traffic stop on Mr. Rodriguez’s vehicle for having an illegal window tint. Mr. Rodriguez pulled his vehicle over at a parking lot across the street from the place where Ms. Littlejohn was originally standing. Deputy Bearns recognized Ms. Littlejohn as a prostitute in the local area and observed her and Mr. Rodriguez in the vehicle. Mr. Rodriguez informed Deputy Bearns that he worked as a correctional officer. Deputy Bearns then escorted Ms. Littlejohn outside of Mr. Rodriguez’s vehicle and Mirandized her. Ms. Littlejohn revealed to Deputy Bearns that Mr. Rodriguez had agreed for her to perform sexual services in exchange for 80 dollars. Ms. Littlejohn provided Deputy Bearns a written statement to that effect. Deputy Bearns arrested Mr. Rodriguez for assignation to commit prostitution. Ms. Littlejohn was not arrested. Incident to the arrest, another deputy conducted a search of Mr. Rodriguez’s vehicle and discovered a total of 102 dollars cash. Ms. Littlejohn’s credible testimony was that Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and allowed her to enter his vehicle in an attempt to engage in prostitution. Mr. Rodriguez’s testimony that Ms. Littlejohn jumped in his vehicle without his consent and was hanging out of the vehicle with the door open was not credible.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Jose R. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b) and revoking his certification. DONE AND ENTERED this 21st day of June, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 21st day of June, 2011.
Findings Of Fact The Parties. Petitioner, Robert L. Wright, is an African-American. Officer Wright was, at all times relevant to this proceeding, employed by Respondent as a police officer. Respondent, the City of Gainesville (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. The City provides law enforcement services through the Gainesville Police Department (hereinafter referred to as "GPD"). At all times relevant to this proceeding, the Chief of GPD was Wayland Clifton, Jr. The City is an "employer" for purposes of this proceeding. Officer Wright's Employment With GPD. Officer Wright was hired by GPD in 1984. Officer Wright has served as a police officer with GPD continuously since being hired. From approximately 1985 until July of 1990, Officer Wright was assigned to Crime Prevention or Neighborhood Services. Officer Wright served as "Officer Friendly" and as the Explorer Advisor. While employed with GPD Officer Wright has received several awards and honors. See Petitioner's exhibit 10 for a list of Officer Wright's awards and honors. Officer Wright was awarded a B.A. degree in Criminal Justice from the University of Florida in 1983. Officer Wright's annual evaluations have been above-average. Officer Wright has received the following sustained internal affairs complaints prior to March of 1993: March 1, 1988: Involvement in an at-fault vehicle accident; October 12, 1990: Inefficiency in job performance; October 12, 1990: Offensive conduct toward the public/person - physical abuse; October 12, 1990: Offensive conduct toward the public/person - verbal abuse; October 22, 1990: Failure to appear for any legal process; December 17, 1990: Inefficiency in job performance; February 21, 1991: Inefficiency in job performance; and November 23, 1992: Inefficiency in job performance. The three complaints of October 12, 1990 all arose out of the same incident. Officer Wright received a written warning for each of the foregoing sustained complaints. A written warning is the lowest recorded punishment for a sustained complaint. A written warning may not be appealed. Officer Wright also received sustained complaints after 1991, but the evidence failed to prove that any of those sustained complaints were taken into account in determining whether to promote Officer Wright. Prior to 1990, Officer Wright had received overall ratings of 7 and above on his annual evaluations. A score of 5 is considered average. During 1990, Officer Wright and his former spouse were involved in divorce proceedings and a contested custody dispute over their daughter. These disputes caused disruptions for Officer Wright and GPD. As a result of the disruptions and the fact that Officer Wright was reassigned to patrol in 1990, Officer Wright's overall evaluations declined. For the period April 2, 1990 to April 1, 1991, his overall evaluation was 6.0. His overall evaluation for April 1, 1991 to March 30, 1992 was 6.2, and for March 20, 1992 to March 29, 1993 was 6.6. Officer Wright was counseled by his immediate supervisor, Lt. David Huckstep, about the performance of his duties during the time that Officer Wright was involved in the dispute with his former wife. Lt. Huckstep talked to Officer Wright about being late to work, an "attitude problem" and the negative impression of GPD being caused by the problems associated with Officer Wright's divorce. Lt. Huckstep also discussed these problems with Captain Richard Carroll. Captain Carroll was part of the Command Staff that was involved in discussions of candidates for promotion to corporal, discussed, infra. Officer Wright's Activities on Behalf of African- American Issues. Officer Wright has been active in promoting the betterment of African- American officers of GPD since becoming a police officer. Officer Wright's activities on behalf of African-American issues has been very vocal and open. There are some who perceive Officer Wright's methods as too aggressive or vocal. The evidence, however, failed to prove that perception is held by Command Staff or Chief Clifton. On September 25, 1985, Officer Wright, along with ten other officers, were appointed by Chief Clifton as "recruitment team members". Petitioner's exhibit 3. Chief Clifton informed Officer Wright and the other team members that they would be assigned, as needed and on a rotational basis to recruitment functions by the Police Personnel Office. Officer Wright and the other team members had expressed interest in assisting with recruitment. On September 20, 1988, Officer Wright and eleven other individuals were appointed by Chief Clifton as a "Minority Recruiting and Training Task Force". On October 3, 1990, Officer Wright and fourteen other officers were appointed by the Professional Standards Commander, Captain Eugene K. Ross, to participate in the oral interview board for police officer applicants. Appointment to this task was based upon the expressed interest of the participants. Officer Wright has questioned the success of GPD's efforts to recruit and promote African Americans and has questioned the discipline of African American police officers. The evidence, however, failed to prove that Officer Wright's activities on behalf of African Americans amounted to opposition to any unlawful employment practice under Chapter 760, Florida Statutes, by GPD, except as discussed in section D of this Recommended Order. Officer Wright's Meeting with the City Manager. At some time during 1990, Officer Wright, Captain Tony Jones, Lt. Alena Buggs (then known as Alena Lawson) and Sergeant Wayne Ashe met with Paul White, the City of Gainesville City Manager. The meeting with Mr. White was requested for the purpose of discussing the hiring and promotion of African-Americans at GPD. A perceived disparate treatment of African-American officers with regard to disciplinary actions at GPD was also briefly discussed with Mr. White. In particular, Officer Wright gave Mr. White a copy of an Internal Affairs report concerning a complaint against Officer Dan Schilling (hereinafter referred to as the "Schilling Report"). See Petitioner's exhibit 2. Officer Schilling had been found to have used the words "those God damn niggers" in front of others. When the report was forwarded to Chief Clifton from internal affairs an Employee Notice form summarizing the incident was used to send the actual detailed report to Chief Clifton. Petitioner's exhibit 2. Under the "Comments" section of the Employee Notice the offending words were quoted. Chief Clifton sent the report back with a note indicating that he would sign the report and accept the recommended punishment when the quoted offensive words were removed. The words were later removed and Chief Clifton approved the report and the proposed punishment. Mr. White told the officers that he would look into the Schilling Report. The evidence, however, failed to prove whether Mr. White ever spoke to Chief Clifton or any other individual about the Schilling Report or the meeting. Officer Wright's Transfer to Patrol in July of 1990. On or about July 3, 1990, a transfer order was issued transferring Officer Wright to the Patrol Division. See. Respondent's exhibit 1. The transfer order of July 3, 1990 was issued after Officer Wright had given the Schilling Report to Mr. White. The evidence failed to prove how long a period of time had passed after the meeting with Mr. White before the transfer was ordered. Pursuant to the transfer order, four other officers were also transferred. During the month of July of 1990 a total of eight officers were transferred to patrol. None of the officers transferred had attended the meeting with Mr. White except Officer Wright. Of the individuals who attended the meeting with Mr. White, only Officer Wright was transferred. The transfer was effective July 23, 1990. Initially Officer Wright was to be assigned to the midnight shift. Officer Wright was absent on leave when the transfer order was issued. He learned of the transfer on July 10, 1990. Captain Jones informed Officer Wright of the transfer. Officer Wright spoke to Captain Noel Thomas, the commander of Patrol, on July 10, 1990 concerning the transfer. Officer Wright requested orally and by memorandum that he be assigned to a day-shift. See Respondent's exhibit 7. This request was made because Officer Wright was a single parent with custody of his three-year old daughter. Although Captain Thomas initially told Officer Wright that he would be assigned to the midnight shift, the next day, July 11, 1990, Captain Thomas told Officer Wright that his request to be assigned to a day shift would be approved. Patrol is the largest division of the GPD and is the primary service provided by GPD. All commanders, including the commander in charge of the Neighborhood Services Division of GPD, Captain Jones, were informed that there was a shortage of personnel in the Patrol Division. Therefore, the Chief directed Captain Jones and the other commanders to look within their respective divisions and make recommendations about any officer that could be transferred to patrol. Captain Jones decided that either the school resource officer at Gainesville High School, Officer Burke, or the Explorer Advisor, Officer Wright, should be returned to Patrol. Captain Jones decided that it was more important to retain an officer at the high school than to have an Explorer Advisor. This decision was based upon Captain Jones' belief that, if the high school resource officer was removed, patrol would simply take the officer's place by having to respond to calls from the high school. Captain Jones recommended that Officer Wright be transferred to Patrol. Captain Jones was not directed by anyone to select Officer Wright. Captain Jones' recommendation was accepted by Captain Clifton. After Captain Jones had recommended that Officer Wright be transferred and Chief Clifton had accepted the recommendation, Captain Ross met with Chief Clifton. During this meeting the question was raised as to whether Officer Wright's transfer might be perceived as retaliation for his having met with Mr. White. The evidence concerning this meeting, however, failed to prove that Chief Clifton made the decision to transfer Officer Wright based upon his involvement in the meeting with Mr. White. Captain Ross was unable to recall exactly who participated in the meeting, whether Chief Clifton made any statement to the effect that his decision to transfer Officer Wright was based in any way on the meeting with Mr. White or whether Chief Clifton was aware of the meeting with Mr. White prior to the decision to transfer or the meeting with Captain Ross. The evidence also failed to prove whether Chief Clifton was informed that Officer Wright had given the Schilling Report to Mr. White or otherwise suggested that the action in the Schilling Report was an example of disparate treatment based upon race in violation of Chapter 760, Florida Statutes. The evidence failed to prove that Officer Wright was transferred to patrol for any discriminatory reason. No complaint was filed by Officer Wright within 365 days of his transfer to patrol alleging that his transfer was for discriminatory reasons. The 1991 Corporal's Eligibility List. Effective December of 1991 a group of officers qualified for promotion to corporal. They qualified for promotion by successfully completing a test and assessment. The officers that qualified for promotion to corporal in 1991 were listed alphabetically on the "1991 Corporal's Eligibility List" (hereinafter referred to as the "Corporal's List"). Respondent's exhibit 11. All of the individuals that qualified for promotion were listed alphabetically. Officer Wright was the last person on the Corporal's list. Inclusion on the Corporal's List meant that each of the individuals listed met the minimum requirements for promotion. Inclusion did not, however, mean that each individual on the list was equally qualified. Some judgment was necessary to decide which individuals on the list were actually promoted absent a need to promote all of the individuals on the list. Officer Wright was one of the individuals listed on the Corporal's List. Pursuant to contract with the union representing employees of GPD, the Corporal's List was valid for an eighteen month period: December, 1991, to May, 1993. There were twenty-six individuals listed on the Corporal's List. Promotions From the Corporal's List. Chief Clifton was provided with information from the Commander in Charge of Personnel concerning each candidate's personnel record, including their annual evaluation scores, training and the length and type of their service at GPD. Chief Clifton was also provided with information from the Internal Affairs Commander concerning each candidate's sustained internal affairs complaints. Prior to January 6, 1992, when the first promotion from the Corporal's List was made, Chief Clifton met with the Commander in Charge of Personnel, the Internal Affairs Commander, the Deputy Chief and the Captains of each division of GPD to discuss the individuals on the Corporal's List. The purpose of the meeting was to allow Chief Clifton to receive input from his command staff concerning the individuals on the Corporal's list. There were more than 200 officers employed by GPD. Chief Clifton was not familiar with all of the officers and, therefore, he looked to his command staff for input. Chief Clifton insists that any comments for or against an officer on a promotion list be supported by specifics. The discussion of candidates on a promotion list can be extensive, lasting two to three hours. Chief Clifton considers comments made by his command staff concerning officers on promotion lists along with the other information he is provided about candidates mentioned in finding of fact 50. Chief Clifton, however, makes the final decision as to which officers are promoted. If someone speaks highly about a candidate for promotion on a promotion list, that individual has a better chance of being promoted. The decision is not, however, a popularity contest in which the person most liked gets promoted. If an individual is spoken highly of by his or her supervisors, it is reasonable that the Chief would give those comments great weight. Chief Clifton asked for comment about each person listed on the Corporal's List. Chief Clifton took the names on the Corporal's List in reverse alphabetical order. Therefore, Chief Clifton first asked if there were any pro's or con's concerning Officer Wright. No one in the meeting made any comment concerning Officer Wright. Chief Clifton repeated Officer Wright's name a second time. Again, there was no response. Chief Clifton then went on to the next name. Of the twenty-six individuals on the Corporal's List, Officer Wright was the only officer that received no comments whatsoever during the meeting to review the Corporal's List. After the meeting with the command staff, Chief Clifton met with Lt. Scott and Deputy Chief Johnston and informed them of his decision. Chief Clifton subsequently made promotions of seventeen individuals on the Corporal's List. The following promotions were made from the Corporal's List: January 6, 1992: Terry Converse, Paul Forsberg, Shelly Grulke, Stephen Kramig and Jeffrey Rouse (or Reese); April 27, 1992: Edward Posey and Larry Seale; November 23, 1992: Mary Birkhold, Mason Byrd, Corey Dahlem, Steve Dean, David Riker, Stephen Weaver and L. Dale Witt; January 4, 1993: Timothy Hayes, Martin Krpan; and March 29, 1993: Edward Legall. Chief Clifton met with Lt. Scott and Deputy Chief Johnston prior to each of the promotion decisions on the Corporal's List. Lt. Scott reminded the Chief during these meetings of the first meeting with the command staff. The last person to be promoted from the Corporal's List was Edward Legall. Officer Wright continued to be eligible for promotion off the Corporal's List until it expired in May of 1993. Officer Wright was not selected by the Chief for promotion from the Corporal's List. Eight other individuals on the list were also not promoted. Officer Wright could not have known that he would not be selected for promotion until May of 1993. Officer Wright has not qualified for any other promotion list. The Basis for Not Promoting Officer Wright. The evidence in this case failed to prove that Officer Wright was not promoted due to his activities on behalf of African American officers. The evidence also failed to prove that Officer Wright was not promoted due to his having given the Schilling Report to Mr. White. Although Mr. White indicated that he would speak to Chief Clifton about the Schilling Report, the weight of the evidence failed to prove whether he actually did. To conclude that Mr. White actually spoke to Chief Clifton would require inappropriate speculation. The evidence also failed to prove that Officer Wright was not promoted due to his having met with Mr. White. One of the other individuals that met with Mr. White, Wayne Ashe, was subsequently promoted to Sergeant in November of 1992. Sergeant Ashe was on the sergeant's promotion list considered at the same time as the Corporal's List. The evidence also failed to prove that Officer Wright was more qualified than any of the officers selected for promotion off the Corporal's List. The only evidence presented by Officer Wright concerning any of the officers promoted was evidence comparing his education with theirs. That evidence indicated that Officer Wright had more formal education than most of the promoted officers. The evidence, however, proved that more than education was taken into account in deciding who was promoted. Also considered by Chief Clifton was: interval affairs history, performance appraisals, service with GPD, the location and circumstances surrounding the position to be filed and input from the Commanders about a candidate's performance, abilities and interaction with other officers. Officer Wright failed to present evidence concerning all of these factors with regard to the officers promoted off of the Corporal's List. Finally, the evidence failed to prove that Officer Wright was denied a promotion because GPD or Chief Clifton perceived Officer Wright as a "racist". I. Officer Wright's Complaint. Officer Wright filed a Charge of Discrimination with the Commission on or about November 11, 1993 alleging that Chief Clifton had subjected him to certain retaliatory actions. In his complaint, Officer Wright suggested that the transfer to patrol and the failure to promote him were retaliatory actions of GPD. On or about July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about August 19, 1994, Officer Wright filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings on August 29, 1994. In his Petition for Relief, Officer Wright alleged that Respondent violated the Florida Civil Rights Act of 1992, as amended, in the following manner: I contend that I was not promoted as a retal- iatory measure resulting from my questioning the Department's commitment to increasing the numbers of African-American police officers. My comments, as reported to me by Deputy Chief Darryl [sic] Johnston, led to be being perceived as a "racist" by command staff, and he further suggested that this perception influenced my not being selected for promotion. Officer Wright also alleged the following "ultimate facts": I allege that discriminatory labor practices occurred by my lack of promotion due to: a) retaliation for raising racial hiring issues, and b) issues of race, whereby command staff's perception of my being "racist" influenced the decision to not promote me. For entitlement, I request the following: a) finding of cause that discrimination did occur, b) promotion, and c) retroactive pay. Officer Wright did not challenge his transfer to patrol in the Petition for Relief.
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 Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts." Shortly after beginning his association with Ms. Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on September 21, 2002. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter. If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good." More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty. S DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-9675 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky, P.A. 438 East Government Street Pensacola, Florida 32502
Findings Of Fact In 1971, Respondent became a state trooper with the Tennessee Highway Patrol. The other troopers introduced him to Mrs. Gary and advised him to use Gary's Garage for towing and wrecker service when he was working in that area, as they did, because Mrs. Gary gave the troopers gifts and allowed them to use her garage for work on their personal automobiles and provided them with free parts. Respondent became friendly with Mrs. Gary, and she began giving him clothing and food, as she did the other troopers, to show her gratitude for their calling her tow truck concern to haul away cars involved in accidents in her area. Mrs. Gary was not obligated to pay Respondent for referring cars to Gary's Garage, nor was Respondent obligated to refer cars to that garage. About the time that Respondent refused to support a political candidate endorsed by Mrs. Gary and also became involved with a new girlfriend, Mrs. Gary told Respondent to stop by her garage to pick up his Christmas present. She told him that if she were not there when he came by, his present would be in the top drawer of her desk. Respondent went to Gary's Garage to pick up his present while he was on duty. Mrs. Gary was not there, and Respondent looked in the top drawer of Mrs. Gary's desk. He found an envelope with his name on it. He took the envelope and left. He later opened the envelope and removed the three $20 bills he found in it. His hands turned green from the ink on the bills. He panicked and threw the money out the car window. Respondent received a call from the Captain telling him to return to the station. When he arrived there, the Captain asked him if he took money from Gary's Garage. When he admitted he did pick up his Christmas present, he was arrested. Based upon Mrs. Gary's allegations, Respondent was indicted on January 26, 1972, and charged with larceny and concealing stolen property in the amount of $577. Based upon the advice of his attorneys, Respondent pleaded guilty to petty larceny, a misdemeanor. On June 2, 1972, he was sentenced to a term of 11 months and 29 days, which sentence was suspended, and Respondent was placed on five years probation. With the permission of his parole officer, Respondent left Tennessee and moved to Florida. Respondent was hired by the Homestead Police Department in June or July, 1973. He attended and completed training at the police academy. On September 28, 1973, he was issued his certification as a Law Enforcement Officer by the State of Florida. Respondent worked as a Law Enforcement Officer with the Homestead Police Department for six and one-half years without receiving even a reprimand. While employed there, he completed his term of probation. In October, 1979, Respondent married a lady who was formerly married to the vice-mayor's nephew. After six weeks, she left Respondent for her exhusband. Her parents involved themselves in the marital problems and pressured the Homestead Police Department to investigate Respondent. The Chief agreed to suspend Respondent with pay while an investigation was conducted, but Respondent resigned on January 3, 1980, rather than be subjected to such politics. Charles T. Renegar has been in law enforcement for 36 years and is the Chief of Police of the Hialeah Gardens Police Department. Respondent was recommended to him by one of Respondent's former superiors at the Homestead Police Department. Respondent was employed as a Law Enforcement Officer by the Hialeah Gardens Police Department on September 22, 1980. He took the sergeant's examination on December 2, received the highest grade on the examination and was promoted to sergeant on December 17, 1980. In June, 1981, Respondent received the third highest grade on the lieutenant's examination. Respondent's certification became automatically inactivated while he was between employment by the Homestead Police Department and the Hialeah Gardens Police Department. His request for activation of his certification after he joined the Hialeah Gardens Police Department has been held in abeyance pending the outcome of this proceeding. Although Chief Renegar ran the police academy as its nighttime coordinator for 14 years, he never met a more sincere and dedicated police officer than Respondent. During the short time Respondent was working for the Hialeah Gardens Police Department, he received the Optimist Club Award as officer of the quarter. He is highly regarded in the Hialeah community. Renegar has held Respondent's sergeant's position open for him and considers Respondent in line for a lieutenant's position. Renegar flew with Respondent at his own expense to a full evidentiary hearing before the Tennessee Clemency Board. On February 19, 1982, Respondent was pardoned by the Governor of the State of Tennessee of his misdemeanor conviction of petty larceny. Respondent's guilty plea to the misdemeanor of petty larceny is the only obstacle to active recertification of Respondent's Certificate of Compliance #02-8832 by the Petitioner. The undisputed facts of the matter which resulted in Respondent's guilty plea to petty larceny involved accepting gratuities and did not involve theft, embezzlement or larceny.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint against Respondent Ronald Lee Dunn and activating his Certificate Number 02-8832 as a Law Enforcement Officer in the State of Florida. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1982. COPIES FURNISHED: Percy W. Mallison, Jr., Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Terrence J. McWilliams, Esquire 1999 SW 27th Avenue Miami, Florida 33145 G. Patrick Gallagher, Director Criminal Justice standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO. 81-3053 RONALD LEE DUNN, Respondent. /
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
The Issue The issue is whether Respondent committed an act or acts of age discrimination against Petitioner by not selecting him for promotion to sergeant with the Santa Rosa County Sheriff's Office.
Findings Of Fact Petitioner, Steven L. Boles, was employed at the Santa Rosa County Sheriff's Office in April 2001 as a deputy sheriff. Petitioner's date of birth is June 15, 1958, making him approximately 47-48 years old at all times related to the promotion issues, which are the subject of this proceeding. Petitioner completed 34 college classes while a deputy sheriff and attained a Bachelor's Degree from Troy State University. He was continuing his education towards a Master's Degree during the promotion period at issue. Petitioner had over 20 years' experience in the United States Air Force, during which his duties included managing a 24-person flight, supervising, planning, administering, and executed law enforcement and security training for a 270-person unit. The Florida Department of Law Enforcement recognized Petitioner's qualifications as being equivalent to those required by the State of Florida for certified law enforcement officers. During Petitioner's time as a deputy sheriff, he worked one position besides his road patrol duties. In 2003, he transferred to a property detective position where he served for almost a year. When he did not receive training that he deemed necessary to better perform his job, he transferred back to his road patrol position. Petitioner was certified as an all-terrain vehicle ("ATV") instructor in April 2006. Petitioner did not serve in a supervisory capacity while employed by Respondent. Under Sheriff Wendell Hall's administration, the promotional process for sergeant and lieutenant was established in General Order D-017. Applicants were ranked on an eligibility list based upon their scoring for specific criteria: advanced training courses, formal education, seniority, supervisory experience, written examinations, and an oral review board. Sheriff Hall promoted from the top of the list in order of ranking. The Fraternal Order of Police ("FOP") is the bargaining agent for deputy sheriffs. During collective bargaining negotiations in 2005, the FOP asked Sheriff Hall to change the promotional process to provide greater flexibility in promotions. The FOP believes that the top-ranked applicant is not necessarily the best candidate for an available position. The sheriff and the FOP executed a collective bargaining agreement ("CBA") in 2005 to implement changes in the promotional process that would afford more flexibility. Pursuant to Article 9 of the CBA, the parties agreed that General Order D-017 would be utilized in promotions. To effect the changes requested by the FOP, General Order D-017 was revised in December 2005. The new policy continued to provide that applicants would be ranked based upon scoring for specific criteria, but added field training officer experience ("FTO") as a new category to be scored. Additionally, the policy provided that the division captains and department major would review the promotion roster and provide a written recommendation to the sheriff for promotion of candidates. The sheriff would be provided with the top five names for one vacancy and one additional name for each additional vacancy. The new policy for promotion was provided to the FOP for review prior to its enactment. Pursuant to the CBA, the FOP could request impact bargaining within ten days of receipt of the policy. Because the FOP did not object to the policy, it became effective on December 26, 2005. The revised policy, General Order D-017, was provided to all members of Respondent, including Petitioner. Petitioner was aware that the process had been changed to permit the division captains and the department major to make written recommendations for promotion. Petitioner received a memorandum from Sheriff Hall on February 17, 2006, informing him of his eligibility to sit for the written promotion examination on March 22, 2006. Petitioner learned in that memorandum that credit for training courses and formal education would not be given for anything that had not occurred and was not present in the training office on or before March 10, 2006. When vacancies for sergeant and lieutenant became available in 2006, the promotional process followed the revised policy. Points were allocated to the applicants under the revised criteria, and the top 20 candidates were ranked. Major Steve Collier and Captains Jack Onkka and Jim Spencer met on May 26, 2006, pursuant to the newly-adopted policy, to review the applicants and make promotion recommendations to the sheriff. Because there were six vacancies for sergeant, the top 10 names on the roster were reviewed. Petitioner was ranked number five on the roster. Major Collier and Captains Onkka and Spencer concluded that the primary consideration for the recommendations for sergeant and lieutenant would be the motivation and initiative displayed by the applicants while employed at the Sheriff's Office. Believing that these qualities demonstrate the foundation of leadership, Collier, Onkka, and Spencer discussed each of the applicants to determine who best exemplified these characteristics. Collier, Onkka, and Spencer recommended six applicants who were ranked in the top 10 of the promotional roster: George Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry Salter, and Todd Reaves. Prior to the review by Collier, Onkka, and Spencer, three of these deputies were ranked higher in the roster than Petitioner and three of them were ranked lower. The reviewers selected these six deputies for promotion to sergeant because each had undertaken an assignment outside his normal duties or otherwise had distinguished himself in a manner that set him apart from the other candidates. George Hawkins, ranked number one on the roster, was recommended as a result of his field officer training experience. Further, he performed as an acting supervisor when the shift sergeant was absent, which the reviewers deemed significant. Field officer training was particularly valued by the reviewers because it required the deputy to serve as a front line supervisor for trainees as well as an instructor and mentor. Joseph Dunne also had performed field officer training and consistently volunteered for special operations projects that were after hours. William Dunsford, although not a FTO, was a member of the hostage negotiation team and, pursuant to this assignment, was on-call 24 hours a day, seven days a week. Similar to Dunne, Dunsford volunteered for special operations after hours. He particularly impressed Major Collier with noteworthy arrests and for his high level of professionalism and motivation. Wayne Enterkin was recommended as a result of his field officer training experience and his initiation of the drug court officers program, which involved juvenile offenders. He particularly distinguished himself in the drug court program. Jerry Salter was recommended as a result of field officer training experience and his assignment to the special weapons and tactics ("SWAT") team. As in the case of hostage negotiators, SWAT team members must undergo additional tactical training and are on-call 24 hours a day, seven days a week. They must also maintain a high level of physical fitness to participate in this unit. Todd Reaves was recommended because of his field officer training experience and his participation on the hostage negotiation team. Reeves also made noteworthy arrests in the northern part of the county, which was not a particularly busy area. Reeves had also received a lifesaver award for his extraordinary actions in providing care to a canine officer who was shot by a suspect. Petitioner was not recommended because the reviewers were not aware of any activities and assignments that set him apart from the other candidates. They were unaware of the fact that Petitioner had become certified as an ATV instructor, since that occurred on April 21, 2006, after the March 10, 2006, information deadline. The reviewing panel would not have given as much credit for Petitioner being an ATV instructor, even if his certification had occurred before March 10, 2006, since this activity did not require as much of a time commitment as a field training officer, hostage negotiation team member, or SWAT team member. The panel also passed over William Bass (ranked number two on the roster) and Christian Turcic (ranked number seven). Deputy Bass was deemed not particularly motivated and refused a transfer to a busier district when it was offered. Deputy Turcic was passed so he could complete his new assignment as a trainer of a new dog. Once he completed his assignment, he received a promotion to sergeant in September 2006. The age of the candidates for promotion was not a topic discussed by the reviewing panel. Sheriff Hall promoted Deputies Dunne, Dunsford, Enterkin, Hawkins, Reeves, and Salter in June 2006. He based his decision to promote these deputies upon the recommendations of his staff without regard to their age. When Petitioner became aware of the identities of the promoted deputies, he tendered a brief letter of resignation, dated June 15, 2006, in which he stated that his total loss of faith in the administration caused the need for him to leave immediately. Petitioner followed the brief letter with an email to Sheriff Hall on June 16, 2006, in which he elaborated on his qualifications and justifications of why he should have received a promotion to sergeant. Petitioner informed Sheriff Hall that he believed a "good-ol-boy system" was in place in the Santa Rosa County Sheriff's Office. In his letter and email resigning from Respondent, Petitioner made no mention of his age as a factor in his failure to be promoted to sergeant. Petitioner never inquired as to why he was not promoted. He met with Sheriff Hall, who informed him that he could be considered for promotion at a later date and encouraged him to contact Major Collier. Petitioner never spoke with Major Collier regarding his failure to be promoted to sergeant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Steven L. Boles 262 County Road 617 Hanceville, Alabama 35077 Robert W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32308 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
