The Issue The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated Facts The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10. Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached. In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty: Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint. Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence. Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment. The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year. Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol. Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes. Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority. Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment. Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines. To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes. Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation. Other Facts The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers. FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9. While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale. Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses. As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy. Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered. Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty. Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately $1,000 per month in additional, private income. Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future. In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records. The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent. It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation. While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited. Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF 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 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue Did the Respondent commit any of the following alleged acts contrary to law, and, thereby, fail to maintain the good moral character required of a certified police officer: Using of attempting to use official position, property, or resource in his trust to secure special benefit; Requesting, soliciting, or accepting a pecuniary or other benefit not authorized by law for past, present or future performance; or violation of any act or omission the public servant represents as having been either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty; Unlawfully, willingly, and knowingly, without authorization, accessing a computer and thus committing any offense against computer users; and Unlawfully and knowingly making a false statement concerning material matter to members of the Tallahassee Police Department during an internal investigation with the intent to mislead said members in regards to his unauthorized access of criminal history information and his attempt to barter same for sexual favors.
Findings Of Fact Willie J. Mitchell was certified as a law enforcement officer by the Criminal Justice Training and Standards Commission on April 20, 1988, and holds certificate number 16-88-002-01. The Respondent, Mitchell, was certified at all times relevant to the Administrative Complaint in this case. Mitchell was employed by the City of Tallahassee Police Department as a patrol officer for approximately three years, and then assigned as an investigator to the Criminal Investigations Division (CID), where he worked until his discharge. Pursuant to his duties in CID, Mitchell was authorized to access the National Criminal Information Center (NCIC) and Florida Criminal Information Center (FCIC) via computer terminals. The policies of the Tallahassee Police Department limited inquiries to the subjects of official investigations of the Tallahassee Police Department. Investigative activities by officers of the Tallahassee Police Department were limited to official cases opened by the department according to its policies. Until this incident, the Respondent had a good reputation in the department for the quality of his work, his attitude, and his integrity. Michelle Worley, born in January 16, 1972, was an explorer scout with the Tallahassee Police Department in 1991 and 1992. Police explorer scouts are issued uniforms, go through an academy for police training, and perform various duties to include radio dispatch and riding with sworn officers on duty. Ms. Worley was a police "groupie", and was rumored to have had sexual relations with several officers in the Tallahassee police department and sheriff's department prior to coming to the police department. Because of these rumors, she was counseled by the explorer leaders to limit her activities and relationships with officers to strictly an official basis or to leave the explorer program. She left the explorer program in October 1992 because she was pregnant. Ms. Worley, while in the explorer program, asked to be assigned to work with the Respondent. She frequently called the Respondent when she was not at the police station, and it was rumored that the Respondent and Worley had a personal relationship. She gave the Respondent a pinup type photograph of herself semi-nude. In November 1992, Ms. Worley commenced a relationship with Officer Eddie Forsberg. At the time of the hearing, they were engaged. In late 1992 or early 1993, Worley advised Forsberg that while working with the Respondent, Ms. Worley had come across the name of Salvatore Secundo, a person who Ms. Worley's sister was dating. She told Forsberg that she asked the Respondent if she could see Secundo's file which was maintained in the office in which she was working. She told Forsberg that the Respondent had subsequently provided her Secundo's files in return for sexual favors. She told Forsberg that she had not wanted to have sex with the Respondent, but that she had given in to his demands when he made the information on Secundo available to her. However, she did not take the information with her, and later denied to Sgt. Parsons having had sex with the Respondent. Forsberg questioned Worley about this incident again and again, and attempted to convince her that she needed to report this matter to the police department. She generally wanted to leave matters alone, and not pursue any complaint against the Respondent. In late November 1992, Forsberg arranged to see retired Deputy Chief of Police Bill Scott about the allegations which Ms. Worley had made. Scott, who was friend of Ms. Worley's grandmother, met with Forsberg because he thought Forsberg wanted to talk about Forsberg's relationship with the young woman. When he learned the real purpose of the visit and of Forsberg's desire to commence an investigation of the matter, Scott unequivocally advised Forsberg not to become involved personally, but that he would talk to Chief Tucker about the matter when he saw him. After talking with Scott and contrary to his advise, Forsberg told Worley that Scott had said they needed to obtain evidence against the Respondent. Forsberg convinced Worley to ask the Respondent to provide information again about Secundo to see if he would offer it in exchange for sex. In furtherance of this plan, Forsberg obtained a tape recorder and a car with a hatchback in which he could hide and overhear a conversation. He and Worley worked out what she should say to obtain the evidence he was seeking. Pursuant to this plan, Worley called the Respondent and arranged to meet him in the parking lot of a local K-Mart store so that she could speak with him privately. Forsberg listened in on her telephone conversation with the Respondent, but testified that he did not record the conversation. He then hid a tape recorder on Worley's person, and hid himself in the back of the car when Worley drove to the K-Mart parking lot close to police headquarters to meet the Respondent. The purpose of this activity was to obtain evidence to support the allegations that the Respondent had provided NCIC data to Worley in exchange for sexual favors. Worley met with the Respondent, who arrived in his police car alone at the meeting place. Worley directly asked the Respondent to provide her with NCIC data on Secundo. The Respondent asked her who Secundo was, and why she wanted the information. In furtherance of the plan to obtain evidence against the Respondent, Worley told him that her sister was seeing Secundo, that Secundo was selling drugs, and that she was afraid for her sister. She reminded the Respondent that he had investigated Secundo earlier. She gave him identifying data on Secundo, and he said he would check and get back with her the next week when he returned to town. Forsberg caused Worley to tape this conversation without the Respondent's knowledge. Within a short time after their meeting and at the continued urging of Forsberg, who had not been satisfied with Worley's handling of the meeting because of her inability to obtain damning admissions or statements from the Respondent, Worley called the Respondent back and advised him that she needed the information right away. Again, the Respondent told Worley he would get back in touch with her. Forsberg testified that he did not tape this conversation. Worley called the Respondent a third time later that evening, and Forsberg taped this conversation without advising the Respondent that he was recording the conversation and without the Respondent's permission. The Respondent advised Worley that the information which she sought was not available because it had been purged from the records, and that he could not get it for her. It is alleged that the Respondent thereafter offered to provide the material to Worley for sexual favors. The transcript of Ms. Worley's testimony regarding the alleged offer in this conversation is as follows: Transcript Page 161 & 162: By Mr. Lober: Q: What did he tell you about the criminal history, if anything? A: That it was purged, closed. Q: I'm sorry. Purged? A: Purged. Q: Okay. What else? A: That he couldn't run it because it was sealed. Basically, that's all. Q: In mentioning that it was sealed, did he indicate whether or not he was able to give it to you? A: He indicated that he couldn't give it to me. Q: Despite him telling you he couldn't give it to you, did he offer to give it to you: A: Yes. Q: Take your time. Just nice and slow. What were the terms that he was offering to provide you the criminal history? What was he -- A: How bad do you want it. Q: And, when he used the word, "it", "how bad do you want it," is he referring to the criminal history record of Salvatore Secundo? A: No. Q: What was he referring to? A: Sex Forsberg took the tapes he had made to retired Deputy Chief Scott, and Scott again advised him not to become personally involved. Scott said he would advise Chief Tucker about the matter the following Monday when Scott and Tucker were scheduled already to meet. Scott did bring the matter to the Chief's attention, and the Chief assigned the matter to the department's internal affairs section to investigate. After the investigation was referred to internal affairs, Sgt. Parsons conducted an interview of the Respondent, and asked him if he had offered to provide information to Worley in return for sexual favors. The Respondent denied this, but admitted to Sgt. Parsons, after listening to the tapes, that it could be interpreted as being an offer to exchange the information for sex. The charge of making a false official statement is based upon alleged contradictions between the Respondent's comments to Sgt. Parsons and this third telephone conversation which Forsberg illegally taped. No information was provided by the Respondent to Worley, and it is not alleged that information was exchanged. A secretary who had worked in the Criminal Investigation Division for many years testified concerning the actual security practices surrounding NCIC information. It is supposed to be accessed only for official investigations; however, this requirement is honored in the breach by employees of the department who obtained information unofficially. Based upon the illegally recorded tape, the Respondent was discharged from his position with the police department by the City. Sgt. Parson's based her investigative conclusions that the Respondent violated policies and statutes based upon her review of the tape illegally made by Forsberg.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Criminal Justice Standards and Training Commission dismiss the charges against the Respondent. DONE and ENTERED this 22nd day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994.
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
The Issue The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun. The officers had no search warrant authorizing their entry onto the private property. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines. The Respondent has accumulated 75 disciplinary points, 60 of which are based on the trespass incident underlying this proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of March, 2013. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Carole Sanzeri, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675
