Findings Of Fact Petitioner is a citizen of the State of Florida and, as such, is entitled to attend public meetings and workshops. He is also a licensed hearing aid specialist, a profession regulated by the State pursuant to Chapter 484, F.S. The Board of Hearing Aid Specialists is an agency with a collegial head which must meet in a manner consistent with Section 286.011, F.S., otherwise known as the "Sunshine Law." Petitioner has the right under Section 286.011 to attend all meetings and workshops held by the Board. Respondent Administration Commission exists as part of the Executive Office of the Governor and is comprised of the Governor and Cabinet. See, Section 14.201, F.S. It is authorized by Subsection 120.54(10), F.S., to promulgate model rules of procedure. On March 16, 1984, the Administration Commission noticed its intent to adopt Rule Chapter 28-8 by providing notice in Volume 10, Number 11 of the Florida Administrative Weekly. The proposed rules are entitled "Conducting Meetings and Workshops by Communications Media Technology." The purpose of proposed Rule Chapter 28-8, F.A.C., is to provide model rules of procedure for agencies conducting public meetings and workshops by means of or in conjunction with communications media technology (CMT). The proposed rules are intended to implement Subsection 120.53(6), F.S.
The Issue The issue in this case is whether the part of Department of Environmental Regulation Rule 17-103.170, Florida Administrative Code, which charges appellants $.50 per page for preparation and transmittal of records on appeal from final DER action, constitutes an invalid exercise of delegated legislative authority.
The Issue The issue in this case is whether Roger C. Brennan (Respondent) should be suspended for five days without pay by the City of Clearwater (Petitioner) for an alleged violation of Rule 14, Sections 1(e) and (k), of the City's Civil Service Rules, based upon his failure to turn over tape recordings of interviews he conducted in late March, 1989, while investigating an employee under his supervision, and also based upon the contents of a memorandum he wrote on March 30, 1989, at the conclusion of this investigation. Through counsel, the Petitioner stipulated that it does not propose to discipline Respondent for the conclusion he reached in his investigation, and has dropped any charge of inefficiency against Respondent which had been brought under Rule 14, Section 1(b). Rather, the proposed discipline is based solely upon the Respondent's failure to turn over certain tape recordings made in the course of his investigations and also the language and phrasing he used to refer to a supervisor in his memorandum of March 30, 1989.
Findings Of Fact At all times material hereto, the Respondent has been employed by the Petitioner as a Utilities Credit Manager. His immediate supervisor is George Fasching, and at the time of the matters at issue in this case, his ultimate supervisor was Robert Brumback, to whom he reported through Fasching. Mark Tedder was an employee under Respondent's supervision. On March 23, 1989, Respondent was directed by Brumback to investigate an incident involving Tedder, who was alleged to have engaged in a prank on another employee and then to have lied to the Affirmative Action Officer, E. J. Robinson, about his part in the prank. Robinson had recommended to Brumback that disciplinary action be taken against Tedder. Thereupon, Brumback wrote a memo to Respondent on March 23, 1989, directing that he evaluate certain information about the Tedder incident which was provided to him along with the memo from Brumback, "make appropriate inquiries, and then recommend, through the chain of command to Mr. Fasching, the action you feel should be taken in this matter." Brumback directed Respondent to respond to this memo by March 30, 1989. Because Brumback had received a complaint from Helga Graf that Respondent was conducting a broad investigation of the Utilities Department, not limited to the Tedder incident, and was tape recording interviews, Brumback issued a clarifying memo to Respondent on March 28, 1989, stating: The purpose of my March 23rd memo was not to have you look into anything outside the scope of your Credit Collection Section. The purpose of my memo was to have you look into Mark Tedder's action with Pat Meri that was alleged to be a prank, and the fact that in an interview with E. J. (Robinson), Mark denied having any part in the prank. All I want you to do is to look into the incident between Mark Tedder and Pat Meri and Mark's interaction with E. J. Robinson. Based upon your assessment of that situation and the fact that Mark Tedder denied to E. J. Robinson that he participated in the prank, I want you to recommend to George Fasching the action you deem appropriate with regard to Mark Tedder's action and conduct.. Based upon Respondent's testimony and demeanor at hearing, it is found that he was upset and angered by this clarifying memo. He felt his investigation was being unduly restricted and impeded by Brumback. Respondent called Brumback on the telephone to find out why he was "putting the blinders on", and to voice objection. Brumback directed him to stay within the authorized scope of the investigation as set forth in his memoranda, and to obtain his approval on a case by case basis before conducting further interviews. At the time of this clarifying memo of March 28, 1989, Respondent had already interviewed Mark Tedder, Pat Meri, and a third employee by the name of McCann. He had tape recorded the interviews of Meri and McCann, but not his interview of Tedder. Respondent conducted no further interviews after receiving Brumback's clarifying memo. On March 30, 1989, Respondent wrote a memorandum to his supervisor, George Fasching, which contained his recommendation that no action be taken against Tedder, and which stated, in pertinent part: it is apparent to me that Mr. Brumback is pursuing a personal vendetta against Mr. Tedder. . committed a . By Mr. Brumback inferring that Mr. Tedder a "crime", he has laid a foundation that this is much more serious infraction than it truly is. . Mr. nature violated Assistant who In making appropriate inquiries, as directed by Brumback, information became available to me that lead me to believe that similar offenses of and scope have occurred without any disciplinary action. . . These offenses occur and are at all levels from the Clerk Typist to the Public Works Director of Utilities (Brumback), has been observed a time or two to tell distasteful (to say the least) joke, during working hours. . In the two and one half (2 1/2) hours of tape recorded conversations I had with various City employees, it is apparent to me that there is a wide spread cover up, . . . of infractions at all levels . . . . But, to choose one employee, as it has been done to this employee on another occasion, in my opinion would be OUTRIGHT RETALIATION. (Underlined Emphasis Supplied.) Respondent's reference in his March 30 memo to Brumback inferring that Tedder had committed a crime resulted from Respondent's interpretation of a question which Brumback asked of Pat Meri, as reflected in a transcript of an interview which Brumback had with Meri on March 16, 1989, concerning the alleged prank. Brumback provided Respondent with this transcript on March 23, 1989, along with his initial memo directing Respondent to investigate this prank. As shown in the transcript, Brumback asked, "Mark Tedder was the perpetrator of the prank?" Respondent contends that by his use of the word "perpetrator" Brumback intended the inference that Tedder had committed a crime, citing to the definition of this term in Webster's Dictionary and Black's Law Dictionary. There is no evidence in the record to support Respondent's contention that Brumback was accusing Tedder of criminal conduct by his use of the word "perpetrator", or that Brumback has any knowledge of the technical definition of this term, as reflected in Black's Law Dictionary. Webster's New Collegiate Dictionary defines "perpetrate" as mearing "to bring about or carry out (as a crime)", and The American Heritage Dictionary of the English Language defines this term to mean "to be guilty of; commit; to carry out; perform", and uses the term in the following alternate ways: "perpetrate a crime; perpetrate a practical joke". Respondent simply ascribed to the word used by Brumback the meaning and inference which he preferred, and not the alternate, acceptable meaning which does not have any connotation of criminal activity. Despite his concern for, and his insistence upon the precise use of language in memoranda, in his memo of March 30 Respondent accused Brumback of "pursuing a personal vendetta against Mr. Tedder." In contrast to the inference which Respondent drew from Brumback's use of the word perpetrator, Respondent used the specific term "vendetta" in his memo, and no inference need be drawn from the use of this word to conclude that Respondent was accusing Brumback of wrongful conduct. At hearing, Respondent defined the word "vendetta" as meaning "unreasonable and without justification". However, Webster's and The American Heritage Dictionary, as well as Roget's Thesaurus, all define this term to mean "a prolonged feud marked by bitter hostility", "a hereditary blood feud between two families, perpetuated by retaliatory acts of revenge", and "any act or attitude motivated by vengeance". There is no evidence in the record which would support Respondent's assertion that Brumback was pursuing a personal vendetta against Tedder, as this term is commonly used and understood. The use of the term "vendetta" by the Respondent in his memo of March 30, with its intended effect of accusing Brumback of wrongful conduct, constitutes the use of offensive conduct and language toward his supervisor. This is not the only example in his memo of March 30, of the use of offensive language by Respondent. In all capital letters, he states that disciplining Tedder would amount to "OUTRIGHT RETALIATION". While this certainly has a dramatic effect, it is also needlessly offensive when taken in the context of Respondent's charge that there is a "wide spread cover up of infractions at all levels." Respondent had been directed to simply look into a prank in which Tedder was alleged to have been involved, and to recommend what, if any, discipline would be appropriate. Instead, he concluded that Brumback was pursuing a "personal vendetta" against Tedder, that Brumback had accused Tedder of criminal activity, that there was a widesperead cover up, and that disciplining Tedder would be an act of "OUTRIGHT RETALIATION". The entire tone and language used in his memo of March 30, constitute offensive conduct and language toward his supervisor, Robert M. Brumback. Respondent failed to obey Brumback's lawful and reasonable direction that Respondent limit himself to an inquiry into the prank in which Tedder was alleged to have been involved, asset forth in Brumback's memoranda of March 23 and 28, as well as in his telephone conversation with Respondent on March 28. This conduct constitutes insubordination. Even after the limited scope of his investigation was clarified, and after he clearly understood this limited scope, Respondent included accusations against Brumback and the Utilities Department in his March 30 memo which are totally unrelated to the alleged prank he was supposed to be looking into. It is undisputed that Respondent tape recorded two interviews of City employees he conducted during his investigation, and that he has failed to turn those tape recordings over to his supervisor. Instead, Respondent claims he sent the tapes to the Equal Employment Opportunity Commission, but the Commission has no record of ever having received such tapes. He claims he did this to avoid any possibility of someone tampering with this evidence. Respondent claims he sent the tapes in the regular mail, and did not request a return receipt. He did not seek or receive authorization to send these tapes to the Commission. After he made his charge of a widespread cover up in his March 30 memo, he was asked to turn over the tape recordings made in the course of his investigation so that the basis of this charge could be understood and explored, if necessary. Respondent claims he has been unable to comply with this request because he no longer has the tapes. Thus, Respondent has disposed of materials, without authorization, which he collected in the course of an investigation he was directed to perform by his supervisor, and his action has resulted in this material either being lost or destroyed. While he was not specifically instructed by Brumback or anyone else to preserve and turn over all tape recordings made during his investigation, there was no way that Brumback could have anticipated that Respondent would have engaged in a course of conduct which included initiating a far reaching investigation of the Utilities Department, with tape recorded interviews. It is reasonable to assume that a supervisor, such as Respondent, who is directed to look into allegations about an employee under his supervision would be expected to retain all information and materials gathered in the course of his investigation for possible review by others. Respondent's handling of these tapes was careless and unreasonable. Nevertheless, this conduct does not constitute insubordination which is the "refusal to perform work assigned or failure to comply with written or verbal instructions of the supervisory force", as that term is defined in the Petitioner's Guidelines for Disciplinary Action. He was given no written or verbal instructions concerning materials gathered in the course of his investigation, although it is reasonable to expect that a supervisor, such as Respondent, would not deal with such materials so carelessly and would retain them for further review, if necessary. Respondent's explanation for his action, that he was concerned this evidence would be destroyed, is unsubstantiated. Rule 14, Sections 1(e) and (k) provide that any employee of the City of Clearwater may be disciplined if he has: been offensive in his conduct or language toward his fellow employees, City officers, or the public. violated any lawful and reasonable official failure regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department. . . Respondent urges, based upon a listing of all prior disciplinary actions taken against City employee's during1987 through 1989, that the action taken against him was excessive and not consistent with discipline imposed in other cases. Some of the cases listed reflect disciplinary action for violating Rule 14, Section 1(k), Level 4, which is consistent with the action taken in this case, and some of the listed cases appear to reflect lesser or greater discipline. However, each case must be dealt with individually based upon the specific facts and circumstances involved in that case. The summaries upon which Respondent relies contain no details about the facts involved in each case, and therefore, these summaries do not constitute either competent or substantial evidence that the penalty in this case is inappropriate, because it cannot be determined if the facts in this case are at all similar to the facts in any of these other cases. The Petitioner's Guidelines for Disciplinary Action applicable in this case classify this as a Level 4 Offense for which a three to five day suspension, and forth disciplinary points, is recommended for the first offense. Rule 14, Section 2 describes suspensions as being without pay. More severe discipline may be imposed "if it is felt necessary in the best interest of the department and/or City." (See City Exhibit 2, page 1 of attachment.) The discipline which Petitioner has imposed in this case against Respondent, a five day suspension without pay, is within the permissible range of discipline for this offense, and is reasonable under the circumstances.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order affirming the disciplinary action taken against Respondent, based upon the facts found herein, of a five day suspension without pay, and the assessment of 40 disciplinary points. DONE AND ENTERED this 9 day of February, 1990 in Tallahassee, Florida. Hearings Hearings DONALD D. CONN Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative this 9 day of February, 1990. COPIES FURNISHED: Deborah S. Crumbley, Esquire P. O. Box 639 Tampa, FL 33601 Margot Pequinot, Esquire P. O. Box 1669 Clearwater, FL 34617 M. A. Galbraith, Jr., Esquire City Attorney P. O. Box 4748 Clearwater, FL 34618
The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a liquor store and sells alcoholic beverages on the premises under a license issued by Petitioner, sold beer to a person under the age of 21, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Holiday Liquors 2002, Inc., d/b/a Holiday Liquors ("Holiday"), has held a license to sell alcoholic beverages at retail. Consequently, Holiday is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On March 23, 2007, five agents of the Division placed under surveillance the liquor store that Holiday operates, covertly watching for sales to underage buyers. At around 10:45 p.m., Special Agent Eric Scarbrough observed a woman enter the store and purchase a six-pack of beer. To Agent Eric Scarbrough the woman appeared to be young——too young, perhaps, to purchase alcohol legally. Agent Scarbrough and his partner followed the woman's car as she drove away from the store's premises. Soon, they pulled her over, making a "traffic stop." The agents could see the six-pack in the car, in plain view. According to Agent Scarbrough, whose testimony in this regard the undersigned credits as true, the woman identified herself to him as Edith Rosario and produced her driver license, which showed November 6, 1986, as her date of birth. Agent Scarbrough confiscated the beer and issued the woman a Notice to Appear. Later that night, he also gave a Notice to Appear to the licensee's agent, Jakia Bergum, charging her with one count of selling alcohol to a person under the age of 21.1 Notwithstanding the foregoing, the undersigned is unable to find that the alleged underage buyer ("Ms. Rosario") was, in fact, under the age of 21 on March 23, 2007. This is because the Division did not offer any nonhearsay evidence in support of the woman's age. (Ms. Rosario did not testify at hearing.) The evidence being insufficient as to a material element of the Division's case (i.e. the age of the alleged underage buyer), it must be concluded, as a matter of ultimate fact, that Holiday is not guilty of selling alcoholic beverages to a person less than 21 years of age, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Holiday not guilty of the instant charge. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008.
The Issue Whether William Campion, Respondent, as president of Central Florida Community College, violated Section 112.313(6), Florida Statutes, by using public resources in furtherance of his work with Excel Telecommunications, Inc., and if so, what penalty should be recommended.
Findings Of Fact Respondent, William Campion, (Respondent) became president of Central Florida Community College (CFCC/College) in October, 1986. He resigned in October, 1995, effective February 16, 1996, for reasons unrelated to the Ethics Commission investigation. As president of CFCC, Respondent's salary was approximately $120,0000 per year. Excel Telecommunications, Inc., (Excel), is a multilevel marketing organization. Its product is long distance telephone service, but representatives earn money not primarily from selling the product, but by recruiting representatives. Respondent first heard about Excel in April 1993, and got involved with it in July of that year. Respondent earned income based on the activities and efforts of those he recruited. The list of persons directly or indirectly recruited by Respondent was called his "downline". There were approximately 20,000 people in Respondent's downline as of February 1996. By April 1994, Respondent had reached the highest level of Excel, Executive Director and National Training Director. Respondent remained at this level in 1995 and during 1994 and 1995 Respondent's income from Excel exceeded his salary as president of CFCC. Respondent knew that it would be improper to use resources of CFCC to promote Excel. Accordingly, Respondent and others connected with Excel, including CFCC employees, rented an office in downtown Ocala to use as an Excel training and recruiting center. Respondent limited the ability of Excel members employed at CFCC to conduct Excel activities on campus. Excel members were prohibited from soliciting or signing up customers on campus, although MCI, AT&T, and Sprint, competitors of Excel, did actively solicit customers on campus. Excel members were prohibited from holding meetings on campus. Excel meetings were conducted at the Excel office. Use of Telephones to Promote Excel On a few occasions Respondent used CFCC telephones to take care of matters relating to Excel. There were some occasions when Respondent made calls related to his work at CFCC, and during the conversations the individuals called mentioned Excel. During such conversations, there were sometimes brief comments relating to Excel, but the discussion returned to the CFCC related issue. When first employed as Respondent's executive staff assistant, Kathleen Daghita was instructed by the other assistant in the office to tell callers that Respondent did not take Excel related calls at his CFCC office. Nevertheless, Ms. Daghita took one or two telephone calls per month for Respondent which were Excel related. Although some Excel related telephone calls were put through to Respondent, Ms. Daghita acknowledged that in doing so, she failed to follow specific directions. Estelle Winkler, who served as Respondent's secretary, brought to Respondent's attention that another member of the CFCC's administration, Hillary Allen, was using the telephone to promote Excel. Respondent indicated that he would speak to Mr. Allen about it. Respondent spoke to Mr. Allen and directed him to refrain from making Excel related call from CFCC telephones. After this, Ms. Winkler never heard Mr. Allen make Excel related calls from CFCC telephones. Respondent, during the course of his official duties, spoke to individuals at CFCC on college business who were involved in Excel. Hillary Allen, Director of International Education at Central Florida Community College, and Don Bostic, Central Florida Community College's Dean of Continuing Education, both joined Excel with Respondent. Respondent was their sponsor. Mr. Allen and Mr. Bostic had conversations about Excel with Respondent in Respondent's office. However, no meeting was ever called in Respondent's office for the purpose of talking about Excel. These conversations about Excel arose in context of discussions about CFCC business, with passing references to an Excel related topic. Duplication of Video Tapes Using CFCC Facilities Pat Fleming is the Media Services Coordinator at CFCC. Mr. Fleming came to the college in April 1993, and joined Excel in August 1993. Mr. Fleming considers himself a friend of Respondent and thinks highly of him. At all times relevant to this case, there was no written policy prohibiting the duplication of tapes by CFCC's audiovisual personnel. It was a long-standing practice at the College to permit duplication of non-copyrighted tapes provided that the person requesting the copy brought in his or her own tape and the tape duplicator was not needed at the time for CFCC work. This practice predated Respondent's tenure at the College. Mr. Fleming personally duplicated Excel tapes for Respondent on approximately ten occasions from the spring of 1995 through November of 1995. Generally, Respondent would have between one to three duplicates made of his Excel master tape. The Respondent had at least thirty to forty duplicate tapes made from the Excel master. Respondent would always provide the tapes to make the duplicates. He would always provide more blank tapes than the requested number of duplicates. James Dial is the Audio/Visual Technician for the College. Pat Fleming has been his supervisor since 1993. Until 1993, Mr. Dial's duties included copying tapes. At about the same time Mr. Fleming came in as his supervisor, Dial's office was relocated to the lower floor due to construction, and he was no longer involved in copying tapes. Mr. Dial testified that more than one hundred Excel tapes were copied in 1993, after Mr. Fleming was hired. He estimates that during the thirty-four month period between April 1993 and February 1996, more than one hundred Excel tapes were copied using audiovisual facilities at CFCC. Mr. Dial's estimate is based on individuals including Hillary Allen, Gene Iba, and Don Bostic bringing Excel masters and blank tapes to the CFCC audiovisual facilities. During this time period, Mr. Dial was not personally involved in the duplication of tapes and had not been involved since 1993. By his own admission, Mr. Dial never witnessed any duplicate tapes being made. There is no evidence that the tapes brought in by Mr. Allen, Mr. Iba, and Mr. Bostic were duplicated at Respondent's request or that he received any special privilege, benefit or exemption from those tapes. Mr. Dial never observed Respondent making copies of any tape. Mr. Dial had no knowledge that Respondent requested that duplicate copies of any tapes be made. CFCC has equipment which permitted duplication of videotapes only in "real time" duplication. That is, a thirty minute tape would take thirty minutes to duplicate. Only three duplicates can be made at a time. Consistent with the College's long-standing practice, the audiovisual personnel at CFCC made duplicate tapes for persons associated with CFCC as well for individuals in the community not associated with CFCC. Except for the duplication of a commercial video tape in 1991, the Excel tapes appear to have been the only tapes of a commercial nature duplicated at the College. However, the same processes and procedures were followed for the duplication of Excel related tapes as for other tapes of a noncommercial nature. Use of College Satellite to Receive Excel Programming Between March and November 1995, Excel ran broadcasts promoting the organization every Monday night at 9:00 p.m., alternating original shows with repeats. In March 1995, Respondent asked Mr. Fleming whether the CFCC's satellite receiver could pick up an Excel program broadcast. Respondent's reason for making the request was that he wanted to watch the program. Although he had a satellite receiver at his house, Respondent often worked late at CFCC. Rather than go home to watch the program and then return to work, he watched the Excel program at CFCC. Mr. Fleming then asked Mr. Dial to set the College's satellite receiver to receive Excel's program broadcast. Respondent watched the program occasionally with Mr. Fleming at the audiovisual center or in his office. Re-spondent watched the program approximately six to ten times over a six month period. Mr. Dial placed the Excel program location on the list of "favorite" channels. Respondent did not request that Excel be listed on the list of "favorite" channels. Mr. Dial placed it there on his own initiative as a matter of convenience. The satellite receiver at CFCC has access to any programming that is not blocked by programmers, scramblers, and the like. There are no costs, such as royalties, associated with pulling programs off the satellite. The college has access to twenty-four satellites with approximately thirty channels on each satellite. The process of pulling an unrestricted program off the satellite is not complicated: One merely locates the satellite, locates the channel, and pushes a button to pull the program in. It is a task that takes about ten or fifteen seconds to do. There was no policy at the College which prohibited pulling up programs off the satellite for any individual. Several individuals, other than Respondent, requested that programming off the satellite be pulled in for their use. In these instances, CFCC audiovisual staff complied with these requests. Use of College Room to Produce Excel Video Mr. Dial testified that he had observed a video of Respondent making an Excel presentation in a room in Building Five of at the CFCC campus. Mr. Dial indicated that he was familiar with the room which he alleged was used by Respondent in the presentation, from being in and out of almost every room on campus. However, he could not identify any reference point with respect to the room, such as a view through any window of the room shown on the tape. There was no room number shown in the video nor was any insignia of CFCC shown. All that Mr. Dial recalled was a wall and a conference table, but he did not provide any specific detail of either at hearing. There was no evidence presented at hearing that the alleged use of the facility was in violation of any CFCC policy, or than any CFCC policy, or that any CFCC equipment was used to make the videotape. Preparation and Duplication of Audiotapes On one occasion, Respondent borrowed an audiotape recorder to make an Excel tape. At the request of Respondent, Mr. Dial, in September 1995, set up a tape recorder and a microphone in a conference room in Building Three. Respondent used that tape recorder to make an Excel audiotape. The tape recording was done after the end of the workday. No evidence was presented at hearing that there was any policy prohibiting the use of audiovisual equipment by CFCC personnel. To the contrary, it was established that audiovisual equipment could be and was loaned to CFCC personnel for personal use. The next day, Mr. Dial was requested by Mr. McClain to put a musical prelude on the tape that had been made by Respondent. It was estimated that it took Mr. Dial three or four minutes to put the musical prelude on the tape. There is no evidence that Respondent asked that the musical prelude be put on the tape. There is no evidence that Respondent knew at the time that the musical prelude had been put on the tape. Approximately twenty duplicates of that tape were made using the audiovisual resources of CFCC. To duplicate audiotapes, CFCC had high speed duplicating equipment which permitted duplication of audiotapes at a five to one ratio. To duplicate twenty tapes using the high speed duplicating equipment took approximately seven and one half minutes. Respondent supplied the blank audio tapes for duplication. It was a practice at CFCC to permit the duplication of non-copyrighted audiotapes provided that the person requesting copies brought in their own tapes to permit duplication. Audiotapes were duplicated for faculty, staff, students, and members of the community. Use of College Room for Excel Presentation by Jim Voight Respondent allowed Jim Voight, a successful member of the Excel organization, to use a room at CFCC to speak to interested persons about Excel. Mr. Voight had been instrumental in Respondent's decision to join Excel. The meeting occurred during lunch and during Spring Break 1994 at CFCC. Spring Break during that year was March 14-18. Respondent was concerned at the time that having the meeting with Mr. Voight on campus would give rise to an appearance of impropriety. It was initially Respondent's preference to have the meeting off campus. The room used for the meeting with Mr. Voight was available for rent of fifty dollars to interested parties outside CFCC, but no rent was ever paid for using the meeting room. At the meeting, Mr. Voight indicated that he would give CFCC more than fifty dollars and the he was intended to endow CFCC. Mr. Voight subsequently made donations to CFCC in amounts as follows: August 31, 1994- $6,000; October 31, 1994- $2,000; December 2, 1994- $2,000; January 3, 1995- $2,000; February 10, 1995- $2,000; and March 16, 1995- $2,000. All total, CFCC received $16,000 from Mr. Voight. Payments began in August 1994, because of the time delay associated with establishing the endowment mechanisms. Payments ceased after a local newspaper called attention to Respondent's involvement with Excel.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that William J. Campion, did not violate Section 112.313(6), Florida Statutes. DONE and ENTERED this 24th day of December, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mark Herron, Esquire Akermann, Senterfitt and Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Suite 101 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues are whether Petitioner should terminate Respondent from his employment as a deputy sheriff for allegedly engaging in prohibited conduct pursuant to Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.1, Rule and Regulation 5.2--relating to loyalty, Rule and Regulation 5.4--relating to duties and responsibilities, and Rule and Regulation 5.6-- relating to truthfulness; General Order Section 3-1.3, Rule and Regulation 3.20--relating to reporting procedures for the use of force; and General Order 3-2--relating to ethical requirements.
Findings Of Fact Petitioner is the Sheriff of Pinellas County and a constitutional officer described in Article VIII, Section 1, Florida Constitution. From sometime in 1989 until the termination of Respondent’s employment on March 14, 2008, Petitioner employed Respondent as a deputy sheriff in the Pinellas County Sheriff’s Office (the PCSO). Respondent was last assigned to the courthouse security division of the PCSO. On Saturday, November 3, 2007, Respondent was off-duty and volunteering as one of a number of parents who were supervising several high school bands that were practicing at Clearwater High School (CHS). Three juvenile males on bicycles approached the band practice area. Respondent yelled at them to stop, but did not identify himself as a deputy sheriff. One juvenile stopped. The other two juveniles ignored the commands and proceeded toward the Tarpon Springs Band. One of the riders wore a back pack with a baseball bat attached to the pack. Respondent reasonably believed that the juveniles, who were approximately 16 and 17 years old,1 presented an imminent danger of running into and potentially injuring members of the nearby Tarpon Springs Band. Respondent ran after the juvenile with a bat attached to his pack, grabbed the bat, and separated the juvenile from the moving bicycle. The second juvenile stopped at the point of separation. The juvenile with the baseball bat struck Respondent with his fist, and Respondent delivered a knee-spike2 to the mid- section of the juvenile. The knee-spike disabled the juvenile. The second juvenile was preparing to strike Respondent, when another parent pulled that juvenile away. Petitioner notified Respondent of the charges against him in a memorandum dated March 14, 2008 (the charging document). In relevant part, the charging document alleges in a paragraph entitled “Synopsis” that, during the altercation, Respondent failed to act within the scope of his responsibilities as a deputy sheriff. If that allegation were properly construed to allege that Respondent used excessive force, the fact-finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of that charge of misconduct. Respondent acted reasonably during the altercation. Respondent used reasonable force to protect band members from harm, and Respondent used reasonable force to defend himself from a juvenile. The exigencies of the moment did not afford time for Respondent to disclose his employment with the PCSO before taking action he reasonably believed to be necessary to protect members of the Tarpon Springs Band. Respondent cooperated with the police investigation at CHS. CHS is located within the jurisdiction of both the PCSO and the Clearwater Police Department. The Clearwater Police Department responded to the scene and conducted an investigation. The investigation was documented in Clearwater Police Report No. CW07-33468 (the police report). Another allegation in the synopsis of the charging document is that Respondent was untruthful by deliberately or intentionally omitting or misrepresenting material facts outlining his involvement in the altercation, including a memorandum Petitioner authored on November 5, 2007. The fact- finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of this charge of misconduct. It is undisputed that Respondent telephoned Corporal Victor Griffin, Respondent’s immediate supervisor on the evening of November 3, 2007, and reported the altercation in detail, including the attack by the juvenile and Respondent’s use of a knee-spike. Corporal Griffin instructed Respondent to inform Sergeant Edward Marshall, the next in command. Respondent telephoned Sergeant Marshall that night and informed him of the use of force and the details of the incident. At the hearing, Sergeant Marshall had little or no recall of the details of the conversation with Respondent on November 3, 2007. The only credible and persuasive testimony concerning that conversation is the testimony of Respondent. On the evening of November 3, 2007, Sergeant Marshall instructed Respondent to write a memorandum describing the incident and Respondent’s use of force when Respondent returned to work on Monday, November 5, 2007. Sergeant Marshall instructed Respondent to either reference the police report in the memorandum or attach a copy of the police report to the memorandum. Respondent drafted a memorandum on November 5, 2007. The memorandum referred to the police report, and Respondent submitted the memorandum to his supervisor. The police report included a handwritten, detailed description by Respondent of the use of force in the altercation. Petitioner had reasonable access to the police report. The Clearwater Police Department and the PCSO, by agreement, utilize a computerized joint records management system identified in the record as ACISS. Another allegation in the synopsis of the charging document is that Respondent failed to document the use of force, as required by agency policy. The fact-finder finds that a preponderance of the evidence does not support a finding that Respondent is guilty of this charge of misconduct. A complete description of the altercation and use of force was attached to the police report. That information fully documented the use of force and was available to Petitioner through ACISS.3 Another allegation in the synopsis of the charging document is that Respondent compromised the criminal investigation of the altercation by “accessing unauthorized information” and by “interfering with an ongoing investigation.” This allegation is based in substantial part on two undisputed facts that occurred on or about November 5, 2007. First, Respondent obtained a copy of the police report and discovered that the police report listed Respondent as a “victim/suspect.” Suspects are not entitled to a copy of a police report, but law enforcement officers may access the report. Second, Respondent persuaded the property department to change the status of brass knuckles found in a back pack at the scene of the altercation from being held for destruction to being held as evidence, so that the brass knuckles would not be destroyed. The fact-finder finds that a preponderance of the evidence does not support a finding that the undisputed actions of Respondent compromised the criminal investigation by accessing unauthorized information and intervening into an investigation in which Respondent was listed in the police report as a suspect. The undisputed actions of Respondent were consistent with the actions of the Clearwater Police Department, and neither action by Respondent compromised the investigation. The investigating officer for the Clearwater Police Department was off-duty on Monday and Tuesday, and she did not return to work until Wednesday, November 7, 2007. When the investigating officer returned to work, her sergeant instructed her to change the police report to list Respondent as a law enforcement officer, to delete his address from the report, and to change the designation of Respondent from a “victim/suspect”4 to a “victim” before finalizing the report. The investigating officer made those changes to the police report by computer entries on November 7, 2007, and those changes were available to the PCSO through ACISS. The sergeant also instructed the investigating officer to change the status of the brass knuckles from being held for destruction to being held as evidence, so that they would not be destroyed. The investigating officer contacted the property department of the PCSO to change the status of the brass knuckles to that of evidence and discovered the property department had already made that change at Respondent’s request. Respondent was entitled to a copy of the report because he was a law enforcement officer and was incorrectly listed on the report as a suspect. The actions of Respondent in changing the status of the brass knuckles so that they were listed as evidence was consistent with the actions of the Clearwater Police Department. Respondent did nothing on November 5, 2007, that the Clearwater Police Department did not do on November 7, 2007. If the investigating officer were to have returned to work on Monday, November 5, 2007, it is reasonable to conclude that the Clearwater Police Department would have provided a copy of the police report to Respondent, because Respondent would not have been listed as a suspect, and the Department would have changed the status of the brass knuckles so that they were being held as evidence. The investigating officer and her sergeant concluded the altercation was a matter of mutual combat and did not refer the case for prosecution by the state attorney. The nascence of the charges against Respondent emerged from two events. First, the mother of the two juveniles filed a complaint of excessive force against the PCSO. Second, when the investigating officer discovered that Respondent had already persuaded the property department to change the status of the brass knuckles, so that they would not be destroyed, the Clearwater Police Department complained to the PCSO about a deputy sheriff allegedly interfering with evidence. As a result, Petitioner initiated an administrative investigation that led to this proceeding. The penultimate allegation in the synopsis of the charging document is that Respondent provided confidential information regarding an open criminal case to another suspect. It is undisputed that when Respondent discovered on November 5, 2007, that he was listed as a suspect in the police report, Respondent told the parent that had prevented the second juvenile from attacking Respondent that the parent was also listed in the report as a suspect. The disclosure by Respondent was immaterial and had no impact on a pending criminal investigation. The Clearwater Police Department classified the altercation as mutual combat and did not refer the case for prosecution. The final allegation in the synopsis of the charging document is that Respondent failed to advise his supervisors of material facts regarding his “involvement in the ongoing . . . criminal investigation” and “subsequent actions” that Respondent took. The distinction, if any, between “involvement in the ongoing investigation” and “subsequent actions” is unclear to the fact-finder because the charges deal with Respondent’s actions during a pending investigation. The charges of misconduct do not address Respondent’s “subsequent actions” after the investigation was completed and case was closed. The investigating officer did not inform Respondent when she responded to the scene on November 3, 2007, that she was listing Respondent as a suspect. She did not decide to list Respondent as a suspect until she prepared her report that evening, long after Respondent had completed his written report that was included with the police report and had left the scene. Respondent did not learn that he was a suspect until Respondent obtained a copy of the police report on November 5, 2007. After obtaining a copy of the police report, Respondent talked to Lieutenant Rachel Hughes of the Courthouse Security Division at the PCSO and another of Respondent’s supervisors. Significant variation exists in the separate accounts of the conversation between Respondent and Lieutenant Hughes. The testimony of Lieutenant Hughes is inconsistent, self- contradictory, and less than credible and persuasive. The only credible and persuasive testimony concerning the conversation is the testimony of Respondent. During the conversation between Respondent and Lieutenant Hughes, Respondent expressed his displeasure at being listed in the police report as a suspect, stated that he would like to complain to someone at the Clearwater Police Department, and asked if Lieutenant Hughes knew anyone there. Lieutenant Hughes suggested that Lieutenant James Steffens at the Clearwater Police Department is a “good guy.” Before contacting Lieutenant Steffens, Respondent called the property department and identified himself as “Milewsky from over at the courthouse.” Respondent did not disclose that he was a suspect in the case involving the brass knuckles. Respondent knew or should have known that the property department employee reasonably believed that the call and request was related to official business. Lieutenant Larry Smith was in charge of the property department at the time and testified at the hearing. The property department would not have enhanced the status of the brass knuckles at the request of someone who was listed as a suspect in the police report. The failure to disclose to the property department that Respondent was a suspect in the case is not alleged in the charging document, and the ALJ cannot find Respondent guilty of a charge not alleged in the charging document. The relevant language in the charging document is confined to an allegation that Respondent failed to advise his “supervisors” of his “involvement in the ongoing . . . investigation” and his “subsequent actions.” Those assigned to the property department are not “supervisors” of Respondent. Respondent next telephoned Lieutenant Steffens of the Clearwater Police Department to discuss the fact that Respondent was listed as a suspect in the police report. Respondent and Lieutenant Steffens disagree over material details of the conversation, including the issue of whether Respondent requested Lieutenant Steffens to change the police report to delete Respondent’s name as a suspect. The fact-finder resolves the disparity in testimony between Respondent and Lieutenant Steffens against Respondent. The testimony of Lieutenant Steffens is the only credible and persuasive testimony concerning the conversation between the two men. Respondent did not want to remain listed as a suspect, but denied that the purpose of his call to Lieutenant Steffens was to have the report changed to delete his status as a suspect. Respondent insisted that his telephone call to Lieutenant Steffens was “unrelated” to changing his designation as a suspect. The testimony of Lieutenant Steffens was plausible, credible, and persuasive. Lieutenant Steffens recalled that Respondent advised Lieutenant Steffens that a Clearwater Police Department investigation contained erroneous information, and Respondent sought to get the error corrected “as soon as possible.” After emphasizing Respondent’s seniority and the lack of experience of the investigating officer, who was a rookie, Respondent stated that he did not want to make a complaint against the investigating officer, but just wanted the report changed so that Respondent was listed solely as a victim in the report. Respondent asked Lieutenant Steffens if they could get that done as quickly as possible. Lieutenant Steffens sent a message by email in this regard to Sergeant Wilton Lee, the supervisor for the investigating officer, asking Sergeant Lee to telephone Respondent. Sergeant Lee did not return to work until Wednesday, November 7, 2007. Before Lieutenant Steffens heard from Sergeant Lee, Lieutenant Steffens received a voice mail from Respondent inquiring as to why nothing had been done yet on the case. Lieutenant Steffens also received a telephone call from another suspect. Lieutenant Steffens telephoned Sergeant Lee directly about the inquiries. When Sergeant Lee reported to work on November 7, 2007, the police report was waiting for his approval. Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be a deputy sheriff, and agreed that Respondent should not be listed in the police report as a suspect. Respondent failed to advise his supervisors of two forms of involvement in the investigation. First, Respondent failed to advise his supervisors of his involvement in the enhancement of the brass knuckles from that of waiting for destruction to that of evidence. Second, Respondent failed to advise his supervisors of his efforts to change the police report to delete his name as a suspect. A preponderance of the evidence supports a finding that the failures described in the preceding paragraph violate requirements for loyalty and truthfulness. Those requirements are described in General Order 3-1.1 and Rules and Regulations 5.2 and 5.6. The Progressive Discipline Worksheet assigns 75 Progressive Discipline Points for violations of all of the charges in the charging document. However, a preponderance of the evidence supports a finding that Respondent is guilty of violating only two of the six charges of misconduct described in the synopsis in the charging document. The Worksheet does not delineate the points assigned to each charge, and Petitioner has not promulgated intelligible standards that enable the fact- finder to determine the points that should be allocated to the two violations committed by Respondent. No aggravating factors are evidenced in this proceeding. Respondent has no prior discipline during his 19 years of experience with the PCSO. The culpable actions of Respondent did not result in physical or financial harm to a member of the public or members of either the PCSO or the Clearwater Police Department. The culpable actions of Respondent did not compromise an ongoing criminal investigation. A preponderance of the evidence does not show that termination of employment is a reasonable penalty. Untruthfulness and disloyalty are serious offenses but, absent any aggravating circumstances, a reasonable penalty is suspension without pay beginning on March 14, 2008, and reinstatement to the former position of employment immediately upon the entry of a final order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order adopting the findings of this Recommended Order; suspending Respondent’s employment without pay from March 14, 2008, to the date of the final order; and returning Respondent to his former position of employment as of the date of the final order. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
