Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as my observation of the demeanor of the witnesses who observed and/or participated in each of the four episodes, the following facts are found: At all times material to the charges herein, respondent DeSantis was an on-duty Clearwater Police Department. officer, holding the rank of patrol sergeant. The respondent had been employed by the Clearwater Police Department since March 14, 1977. He was certified by the Criminal Justice Standards and Training Commission on July 7, 1977, and was issued Certificate Number 02-18239. THE ANDERSON INCIDENT At approximately 8:00 p.m. on October 27, 1984, a radio dispatch was transmitted to Clearwater police officers advising that there was an armed black male in the area who had threatened that he was either going to get some money or someone would be hurt. Respondent observed a suspect, later identified as Harold Anderson, in front of a laundromat where three or four people were sitting in chairs. Respondent drove up to the laundromat, and observed Mr. Anderson walk inside. A woman and a child were inside the front area of the laundromat. Respondent followed Anderson into the laundromat and Anderson proceeded to walk the back area, keeping his back to the respondent. Assuming that Anderson had a gun in his hand and fearing a possible hostage situation with the woman and child, respondent drew his service revolver and informed Anderson that he was under arrest. With pistol drawn and facing Anderson's back, respondent made two attempts within the laundromat to take Anderson into custody. During the second attempt and while respondent's gun was placed on Anderson's spine, a struggle ensued near the front doorway. The struggle caused both the respondent and Anderson to fall, with Anderson on the bottom, upon the hood of a car parked outside the entryway to the laundromat. Sometime during the struggle, respondent was attempting to place his service revolver under Anderson's chin. Instead, the barrel of respondent's pistol went into Anderson's mouth, where it remained for between 20 and 40 seconds, causing Anderson to make choking and gagging sounds. Respondent's pistol was removed from Anderson's mouth after Anderson was handcuffed with the assistance of two other police officers. A loaded handgun was retrieved from the waistband of Anderson's trousers. Officer Kettel arrived on the scene as respondent and Anderson were struggling at the doorway of the laundromat. He observed that Anderson was resisting arrest and that respondent was attempting to calm Anderson down and to retrieve his gun. He recalled that respondent's pistol went into Anderson's mouth as they both landed on the car hood. Officer Watson was the third police officer to arrive. He did not observe the struggle between respondent and Anderson prior to the two reaching the hood of the parked car. When Watson arrived at the scene, Anderson was lying on his back on the car hood and respondent was holding a pistol in Anderson's mouth. Watson's testimony was conflicting as to the exact point in time that Anderson ceased to struggle and the point in time that the pistol was removed from his mouth. Until the point in time that Anderson was handcuffed and his loaded gun retrieved from him, respondent was in fear for his life. He admits that the barrel of his service revolver went into Anderson's mouth, but states that this was unintentional and that he could not remove it without endangering himself until he received assistance from other officers in subduing Anderson. The testimony of two civilian eyewitnesses to this incident was somewhat conflicting as to when the gun went into Anderson's mouth, when Anderson ceased resisting his arrest, and when the gun was removed from Anderson's mouth. There was no evidence that Mr. Anderson was injured as a result of respondent's revolver being inside his mouth. THE HEYWOOD INCIDENT On November 3, 1984, three police officers responded to a radio dispatch concerning an individual who had returned to a Maas Brothers department store armed with sticks and bricks after previously having had an altercation with the security guard there. The individual was Steve Heywood, a 19 year old black male, who had testified that he had returned to Maas Brothers "to defend himself" because the security guard had broken his necklace approximately one-half hour earlier in the evening. When respondent drove into the Maas Brothers parking lot, he observed five or six people standing near the doorway and saw Heywood, dressed only in shorts and tennis shoes, throw some bricks and sticks in a bush. Respondent got out of his cruiser and Heywood started walking away from him. Respondent told Heywood to "freeze" and to "hit the ground." Heywood took three or four more steps, then turned around quickly. At that point, respondent drew his service revolver. Heywood put his hands out or up, started pleading that he had done nothing and went down to the ground on his stomach, with his hands visible. Respondent then approached Heywood with his gun still pointing at him, put his knee on Heywood's back, and placed the barrel of his service revolver next to Heywood's head where it remained for a period of about 30 seconds until another officer handcuffed Heywood. While Heywood appeared excited or upset during this process, he did not fight or struggle. THE TRUBY INCIDENT On October 5, 1984, respondent and Reserve Officer Karen Jackson were dispatched to investigate a report of a fight at an apartment complex. Soon after the officers arrived, Paul Truty began creating a disturbance in the parking lot by shouting abusive and threatening remarks at a victim of a prior sexual abuse, her family and the police officers. Detective Margaret Jewett was also dispatched to the scene to assist the sexual a~use victim. When Truby refused to stop yelling obscenities and inciting the crowd, respondent told him he was under arrest. Truty then began to walk backwards away from the respondent. Respondent pounded his nightstick on the ground three or four times, demanding that Truby return, and Truby then turned and started walking between two apartment buildings. Respondent and Detective Jewett followed Truby a short distance and apprehended him. The respondent pushed Truby against a wall and Jewett placed handcuffs on Truby, securing his hands behind his back. The respondent and Detective Jewett each took one of Truby's arms and escorted him approximately fifty yards back to the respondent's police car. During the walk back to the car, Truby did not resist or struggle and was cooperative and submissive. From this point, there is conflicting evidence between respondent's recollection of events and the recollections of Reserve Officer Jackson and Detective Jewett. Respondent states that Truby was highly intoxicated at the time of his arrest and that he had to use his nightstick to keep Truby's spine stiff and steer him while they were walking back to the patrol car. Respondent explains that Truby stumbled near the car due to the presence of some concrete tire stops adjacent to the passenger side of the cruiser. Detective Jewett and Officer Jackson recall that respondent positioned his police baton parallel to Truby's spine and under his handcuffed hands. As Truby was beginning to enter the police cruiser, respondent intentionally pulled up on the lower end of the nightstick near the handcuffs, thus causing TruLy to stumble and fall off balance. According to these witnesses, respondent then made a sarcastic remark about Truby falling and subsequently pulled Truby up with the nightstick and placed him in the car. Detective Jewett stated that Truby may have been intoxicated. THE VONDERAU INCIDENT On the evening of October 5, 1984, Officer David Watson was dispatched to investigate a report of a domestic disturbance in a residential neighborhood. Officer Green was dispatched as a back-up officer. Upon arrival at the scene, the officers spoke to a very upset woman who told them that her son had done extensive damage to her home and had threatened her. The interior of the woman's home was in shambles. A neighbor led the son, later identified as John Vonderau, to the area of the street where the officers were. He was wearing no shirt and the officers believed he had been drinking. Vonderau exhibited bizzare behavior, marked bye dramatic swings of mood from calm and lethargic to aggressively pacing the street with clenched fists. Officer Watson was concerned that Vonderau could become violent, but he was unsure of his legal right to arrest him since no crime had been committed in Watson's presence. He considered taking Vonderau to a detoxification center or effecting an involuntary commitment to a treatment facility for the mentally ill, pursuant to the Baker Act. Being unsure of the legal ramifications of doing so, Watson radioed respondent, who was his superior on duty that evening, and asked him to come to the scene to advise on the proper course of action. Before respondent arrived, Officer Desrosiers drove by and Officer Watson requested that he stay because Vonderau appeared to be getting more agitated. When respondent and Reserve Officer Jackson arrived on the scene, Officers Watson, Green and Desrosiers were standing in the street in a loose circle around Vonderau, who was pacing back and forth. Officer Watson advised respondent that Vonderau had made death threats to his mother and had completely ramshackled her house. A decision was made that the officers would take Vonderau into custody as a Baker Act patient. When respondent and Watson began to approach Vonderau, he brushed against respondent's shoulder and then assumed a martial arts/karate-type stance, and said, "You'd better get your clubs out. You're going to need them." The officers all took out their police batons, and Vonderau continued to make karate- type motions. Officer Desrosiers was talking on his radio when Vonderau swung at him. Respondent thought Vonderau struck Desrosiers, but no contact was made. Vonderau also approached Officers Watson and Green in an aggressive fashion. When he turned away from Officer Watson, Watson struck Vonderau's leg with his police baton. Vonderau then ceased his crouched stance, stood erect, put his hands in the air and said, "You got me." Officer Watson then ordered Vonderau to get down on the ground. After hesitating momentarily, Vonderau then assumed a push-up position, facing the street and suspending himself with his feet and hands. Immediately after Officer Watson ordered Vonderau to lie flat on the street, the respondent struck a very hard blow with his police baton across Vonderau's shoulders, causing a welt. Vonderau then went immediately to the ground. Once Vonderau was down flat on the street, at least three of the officers quickly moved to securely hold him down and handcuff his hands behind his back. The fourth officer walked over to the police vehicle to retrieve a set of "flex cuffs" to place around Vonderau's legs. At some point, respondent drew his service revolver and, after Vonderau was down and was being handcuffed by the other officers, respondent held his gun to the back of Vonderau's neck behind his ear, while pushing his nightstick against Vonderau's neck. Vonderau had ceased resisting and being aggressive from the time he went flat on his stomach to the street. Respondent held the gun to Vonderau's neck or head for approximately thirty seconds, angrily telling him that if he moved, respondent would "blow his head off." After Vonderau was hand and leg cuffed, he was taken to the police station by Officers Watson and Desrosiers. The testimony is somewhat conflicting as to the exact point in time that respondent withdrew his service revolver from his holster. Respondent states, and the other officers present admit the possibility, that his pistol was drawn when Vonderau first assumed his karate-type stance and began swinging at the other officers. He further states that he thereafter attempted to place his pistol back in its holster, but, because his holster lining was torn, he had to hold it there. However, on cross- examination, respondent admitted that he intentionally placed his gun next to Vonderau's head because he felt he and the other officers were in jeopardy. Respondent felt that the placing of his service revolver against Vonderau's neck was effective in calming him down. All officers on the scene believed that Vonderau possessed knowledge of a martial art and that he was dangerous. However, officers Watson, Green, Desrosiers and Jackson agreed that Vonderau ceased to resist completely once he was flat on the ground on his stomach.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT: Respondent Joseph DeSantis be dismissed as an employee of the Clearwater Police Department for utilizing excessive force during the arrests of Steve Heywood and John Vonderau, and that the Administrative Complaint filed by the Criminal Justice Standards and Training Commission be DISMISSED. Respectfully submitted and entered this 20th day of April, 1987. DIANE D. TREMOR Hearing Officer The Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488 9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of April, 1987. COPIES FURNISHED: Louis Kwall, Esq. 133 N. Ft. Harrison Avenue Clearwater, FL 33516| Margot Pequignot, Esq. P.O. Box 1669 Clearwater, FL 3351 Robert G. Walker, Jr., Esq. P.O. Box 4748 Clearwater, FL 33516 Miles A. Lance, Esq. P.O. Box 4748 Clearwater, FL 33516 Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 APPENDIX The proposed findings of fact submitted by each of the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, CJSTC 22. The evidence is unclear as to the number of officers holding Vonderau down. 40, 41 and 43. Rejected; not established by competent, substantial evidence. Rejected; not established by competent, substantial evidence. First sentence rejected; contrary to the evidence. 55. Rejected, contrary to the evidence. Petitioner, City of Clearwater (NOTE: Many of the City's proposed findings of fact constitute recitations or summaries of an individual's testimony. The following rejections of the proposed factual findings does not indicate that the cited witness did not so testify, but that said testimony was not sufficient, in light of other testimony, to support a factual finding.) 8(b) Rejected. 8(f) Rejected. 8(i)(2) Rejected, as contrary to the evidence. 8(i)(5) Rejected, as contrary to the evidence. 8(i)(6) Rejected, as contrary to the evidence. 8(i)(7) Rejected, as constituting a legal conclusion as opposed to a factual finding. 9(i) McKenna was accepted as an expert in the area of law enforcement standards. 9(k)(5) Rejected as a factual finding. 10(d)(l) Rejected, not established by competent, substantial evidence. 10(d)(3) Rejected, not established by competent, substantial evidence. 10(g)(3) & (i) Rejected, not established by competent, substantial evidence. Respondent (NOTE: Many of respondent's proposed factual findings constitute verbatim recitations of testimony. These are improper findings of fact and are rejected as such.) page 6, first Rejected, as contrary to the sentence of last evidence. paragraph page 24, second Rejected, not supported by full paragraph competent evidence. page 27, first Rejected, as contrary to the paragraph evidence. page 28A, last Rejected as irrelevant and paragraph immaterial to the issues in dispute. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH Case Nos. 85-3698 86-0889 JOSEPH R. DESANTIS, CJSTC Case No. L-1703 Certificate Number: 02-18239 Respondent. /
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on December 26, 1989, and was issued certificate numbered 121960. From time to time, the City of Miami Police Department conducts prostitution stings. An undercover female police officer is assigned to be the prostitute or "decoy." She stands at the assigned location. Another undercover police officer acts as "look-out," hiding nearby and watching the "prostitute" until she signals that she has been offered money for sex. She advises the person soliciting prostitution where to drive so they can complete their transaction. Upon her signal, the look-out radios a description of the vehicle and tag number to the "take-down" officers who are in their patrol cars nearby. The take-down officers then stop the vehicle and arrest the person who solicited prostitution. After she gives the signal, the "prostitute" walks over to the look- out, describes the person who made the offer of money for sex, advises what kind of sex was solicited and how much money was offered, and then returns to her assigned location. The look-out radios that additional information to the take-down officers who are making the arrest. On March 2, 1994, the City of Miami Police Department conducted a prostitution sting at S. W. 8th Street and 44th Court, an area with a reputation for prostitution. Officer Kelly Macina was assigned to be the prostitute, Officer Jorge Fernandez was assigned to be the look-out, and Officers Jorge Castano and Carlos Ortega were assigned to be the take-down officers in their patrol cars. The officers were instructed that Officer Macina would tell anyone soliciting her for prostitution to turn into the driveway of Burke's Motel. The motel was located on the corner opposite where she was standing. Prior to March 2, 1994, Officer Macina had only participated in two undercover prostitution operations in the 15 months she had been a police officer for the City of Miami. She had received no formal training in how to conduct a prostitution sting but for a supervisor showing her the statute on solicitation to commit prostitution and telling her to read it. On that evening Respondent was driving home from a club where he had had drinks with some friends. He was driving his black Corvette east on S. W. 8th Street near 44th Court when traffic slowed due to some commotion. He saw a woman standing in the street and saw a patrol car drive up and pull over a vehicle when it drove away from the woman. It occurred to him that he might be observing an undercover operation. He continued to drive by and then noticed two patrol cars parked in an abandoned gas station lot. He thought he recognized the driver of one of the patrol cars as one of his buddies from the apartment complex where Respondent lived. Respondent continued driving to his apartment at Ponce de Leon Boulevard and S. W. 8th Street. When he got there, he changed his clothes, checked his wallet and found that he had only $8, and then left to meet a friend at the pool hall near S. W. 8th Street and Red Road. Driving west on 8th Street, he decided to stop and speak to his buddy whom he thought he had seen in the patrol cars when he earlier drove by the 44th Court area. When he reached 44th Court, he turned right, heading north on 44th Court, made a U-turn, and headed back on 44th Court, heading south. He saw that the patrol cars were no longer at the gas station lot. When he stopped at the stop sign on 44th Court at S. W. 8th Street, Macina approached his vehicle and initiated a conversation. Before Respondent drove away, Macina gave the "take-down" signal. Respondent had given no money or other item to Macina. Respondent turned right on S. W. 8th Street, heading west toward the pool hall. When he had gone approximately 15-25 yards, he saw lights in his rear-view mirror bearing down on him. He pulled over, and a patrol car pulled in behind him. Over a loud speaker, Respondent was told to exit his vehicle, which he did. He was told to come back to the patrol car, which he did. He asked the police officers why he was being stopped and if he was being stopped for speaking to a pretty girl. The take-down officers asked to see Respondent's driver's license. When he opened his wallet, one of them saw a badge and asked Respondent if he were a police officer. Respondent advised them he was a police officer with the City of Coral Gables. The take-down officers exercised their discretion, determining not to arrest Respondent. They told him to leave, and Respondent apologized to them for interfering in their sting operation. Eighteen people were arrested that night. The following day, Officer Macina was asked to give a sworn statement to internal affairs at the City of Coral Gables Police Department. She did not remember what sex act Respondent was alleged to have requested, did not remember how much money was offered for that sex act, and did not remember the conversation she had with Respondent (except that he allegedly had said in response to her questioning that he was married and that his wife was on vacation). By the time of the final hearing in this cause, she had also forgotten which take-down signal she had used that evening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: Richard Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lawrence E. Besser, Esquire 1925 Brickell Avenue, Suite D-207 Miami, Florida 33129 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent Wilton Hill committed the violations alleged in the Decision-Making Leave and Mandated EAP Referral notice; and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On September 8, 2015, Petitioner hired Respondent to work as a senior systems programmer, which is categorized by the City as a “Classified” service position. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the CSR provides the framework for suspending, demoting, and dismissing City employees. By correspondence dated February 22, 2021, Petitioner provided Respondent with what is commonly referred to as a “predetermination notice” and advised Respondent therein that it was believed that he “committed an offense warranting formal discipline.” The predetermination notice states, in material part, that Respondent violated “Integrity Standards, listed on page iv of the official PBMP manual, adopted by the City of Clearwater on February 15, 1998 and revised on July 1, 2014, to wit: [1] Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations[;] [and] [2] [d]ishonesty or untruthfulness or willful refusal to provide information or otherwise cooperate during an internal investigation or when directed to do so by competent authority.” The notice also specifically alleges that Respondent violated chapter 13, section 3(b), (f), and (l) of the CSR. The City seeks to discipline Respondent based on events that occurred on or about February 1, 2, 3, and 10, 2021, respectively. On February 24, 2021, Respondent met with the director of his department and presented his version of the events in question. Following the meeting, the City, by correspondence dated March 5, 2021, notified Respondent that he would be placed on “a two-day Decision-Making Leave and mandated EAP for ... violating the Clearwater PBMP Citywide Personal Responsibility, Integrity, and Excellence standards.” Performance and Behavior Management Program (PBMP) The City developed the PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling ... for employees ... in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: (1) Personal Responsibility; (2) Integrity; and (3) Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) - City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) - As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) - City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, the City contends that Respondent violated several of the PBMP Integrity Standards and should therefore be subjected to formal discipline. Background – Family Medical Leave Act (FMLA) Respondent suffers from a serious medical condition that occasionally impacts his ability to perform his job. Under the City’s policy related to FMLA, an employee may intermittently take leave under FMLA “whenever medically necessary … because the employee is seriously ill and unable to work.” The policy also instructs that “[e]mployees should make a reasonable effort to schedule intermittent leave as to not unduly disrupt office operations.” Because of Respondent’s underlying medical condition, Petitioner, since at least November 2020, has allowed Respondent “4 [to] 5 episodes per month” during which Respondent can take FMLA leave without having to submit documentation related to the same. As a practical matter, this means that when Respondent experiences a medical episode that impairs his ability to work, he is to contact his supervisor, if possible, and let the supervisor know that he is utilizing FMLA leave for his anticipated absence from work. Herein lies “the rub” in the instant dispute. Respondent’s Understanding of Leave Protocol According to the City’s governing manual for supervisory, administrative, managerial, and professional employees (SAMP), “Classified employees who have successfully completed an initial probationary period become certified to regular employment status and have certain rights of appeal through the Civil Service grievance process.” The SAMP manual also provides that “Classified SAMP employees will not be disciplined except for just cause.” Section 2 of the SAMP manual provides that “Classified SAMP employees must obtain approval from a person of competent authority prior to working any hours outside of their established work schedule, either before their designated starting time or after their designated quitting time or during an unpaid meal period. Chapter 22, section 1, of the CSR provides as follows: Normal Work Hours -- The number of hours constituting a regular schedule work week for City Employees is specified by the City and excludes meal periods. In positions requiring shift work, the City reserves the right to include meal periods as actual time worked. Regularly scheduled work hours may be adjusted or “flexed” within a specific work week with proper notification and at the mutual convenience of the employee and the respective department. Such adjustments or flexing of work hours must be approved in advance by the respective department…. Chapter 4 of the CSR defines “flex time” as “the process whereby an employee’s regularly scheduled hours of work within a specific workweek are adjusted with proper notification and at the mutual convenience of the employee and the respective department. Such flexing of work hours must be approved in advance by the respective department….” Respondent, at all times material hereto, understood that he was to first contact his supervisor before taking time off related to a medical episode. Evidence of Respondent’s understanding is illustrated in emails that he sent to his supervisor on December 2 and 31, 2020. February 1 and 2, 2021 Sometime around January 2021, the City implemented a number of workplace measures designed to mitigate the risk of contracting and spreading the COVID-19 virus. One such mitigation effort allowed employees “to work from home on their assigned remote day.” During February 2021, Tuesdays were Respondent’s assigned days to telecommute. On Monday, February 1, 2021, the following emails were exchanged between Respondent and his supervisor: From: Williams, Jeremy Sent: Monday, February 1, 2021 (2:12 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Where are you? Thanks, Jeremy From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:15 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 At lunch From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:21 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Precisely; (Respondent provided the email address for the auto/electronics store where he was located) From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:00 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Can you confirm what time you arrived today? From: Hill, Lloyd Sent: Monday, February 1, 2021 (4:04 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Is anyone else required to confirm their time today? From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:08 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 I put the timesheets on your desk for time entry this AM and noticed that your laptop was not here and your desk looked to be unoccupied, at 2:30 your desk looked the same. We need to make sure to charge your time correctly, so if you had an appointment not reflected on my calendar I need to update it. Please confirm your arrival time, and how long of a lunch you took for my records please. Thank you, Jeremy On Tuesday, February 2, 2021, Respondent and his supervisor exchanged additional emails regarding Respondent’s absence from work: From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (10:21 a.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Can you confirm your times for yesterday as I requested please? Thank you, Jeremy Soon after sending the email to Respondent at 10:21 a.m., on February 2, 2021, Mr. Williams met with Respondent via videoconference. During the videoconference, Mr. Williams again asked Respondent about his whereabouts and arrival time to the office on February 1, 2021. Mr. Williams credibly testified that Respondent, in response to his inquiry, became argumentative by wanting to know if other employees where being questioned about their whereabouts and arrival time to work. Respondent never answered the questions posed to him by Mr. Williams, but instead, advised Mr. Williams that his time away from the office on February 1, 2021, should be charged as one of his monthly FMLA episodes. Mr. Williams was confused by Respondent’s request, in part, because Respondent was requesting FMLA leave that covered time when Respondent actually performed certain work-related tasks, albeit via unauthorized telecommuting. Shortly after the videoconference ended, Respondent and Mr. Williams had additional discussions regarding the matter as reflected in the following emails: From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:12 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I am using this as one episode of FMLA. My [redacted] was too high to drive. I am notifying you after the incapacity has passed as allowed by law. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:32 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, We will need to refer to HR as to what is allowed. I will update this outage once we hear back from them. Thank you, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:35 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs To be clear, I have notified you that I was incapacitated due to an underlying condition covered by my FMLA on the morning of February 1st. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:37 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, I only have record of your FMLA request for the AM of 2/1/2021 on a video call that occurred on 2/2/2021. Can you send me the notification that you sent me on the 1st indicating this? It[’s] possible that I missed it. Thanks, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (12:14 p.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I think you missed it. I don’t have a copy. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (12:46 p.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, This doesn’t make any sense. Either you requested the time or you didn’t. If you don’t have a record, you didn’t request it. I certainly did not receive anything. I have re-reviewed my emails, teams and sms and see nothing from you indicating that you would be out of the office on Monday (2/1/21) morning and early afternoon. We will confer with HR as to what we can use to charge your time. Thank you, Jeremy As previously mentioned, the City, on or about February 22, 2021, informed Respondent that it intended to suspend him for two days. In response to the City’s notice of disciplinary suspension, Respondent stated the following with respect to matters that transpired on February 2 and 3, 2021: On February 1, 2021, I began working from home at about 7 AM. I typically log on the server in the morning before leaving for work to check on emails and overall functioning of all systems, as well as respond to the system users. Due to severe anxiety arising out of my continuing concern over the risk to my health posed by the pandemic as well [as] the ongoing dispute with the City over my ADA reasonable accommodation request to telecommute, I experienced [redacted] symptoms. My first … reading taken was [redacted] putting me in the range of an ... emergency. As such, I decided to remain at home and continue to work. I did not feel safe to drive to the office and kept monitoring my [redacted] to determine whether I needed to go to the emergency room. When my readings returned to a safe level, I arrived at the office later that day around 3 PM. My manager acknowledged my presence because I walked past his office several times. I am more than willing to provide documentation of the ... readings I took that day. On February 2, 2021, I had a video meeting with my manager and explained to him the stress that I was experiencing. At that time, I requested 5 hours of leave (against my available intermittent FMLA leave) because he would not consider time I spent at home earlier that day as hours worked, despite the fact that I performed my job duties during that period. Respondent’s suggestion of incapacity is not supported by the evidence. By his own admission, Respondent, on the morning of Monday, February 1, 2021, was able to log onto the City’s server which allowed him to “check on emails and overall functioning of all systems, as well as respond to the system users.” Respondent also admits that after his first elevated reading he decided to “remain at home and continue to work” because he did not “feel safe to drive.” The issue is not whether Respondent felt well enough to drive, but whether he felt well enough to send an email. If Respondent felt well enough to “respond to the system users, and continue to work,” then he was certainly capable of sending an email to his supervisor. There is no credible evidence that Respondent suffered from any form or type of medical condition on the morning of February 1, 2021, which prevented him from notifying his employer that he was taking an “episode” of FMLA leave for the workhours in question. It is undisputed that Monday, February 1, 2021, was not Respondent’s designated day to telecommute. Chapter 12, section 1, of the CSR clearly provides that the City determines normal work hours for its employees, and that employee-initiated changes to the normal work hours “must be approved in advance.” The uncontroverted evidence establishes that Respondent was not authorized to telecommute on Monday, February 1, 2021, and that he did so in violation of the CSR and SAMP manual. Respondent’s assertion that he did not violate City rules and regulations “because he performed [his] job duties” while at home on February 1, 2021, is irrelevant because, as noted above, he lacked authority to telecommute on the day in question. February 3, 2021 Respondent reported to work on February 3, 2021, and worked until leaving the building at 1:30 p.m. Respondent did not return to work on this date and several hours later initiated the following email chain with his supervisor: From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (4:27 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow [There was nothing written below the subject line]. From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:13 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow I have you down for Tomorrow in the AM, you’ll confirm with me the specific amount of time when you get in. See you tomorrow, Jeremy From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:21 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow Hi Lloyd, Did you mean to say that you took off work at 4:30 p.m. today (using FMLA)? I stopped by your desk to clarify what you meant by this email, you weren’t there (5:20 p.m.). Office 365 saw you last at 4:48 p.m. I’m pretty confused if you can clarify, I’d appreciate it. Thank you, Jeremy From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (5:47 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow Correct Before Respondent prematurely ended his workday on February 3, 2021, he had been assigned that morning to provide IT support services for the City’s recreation centers. Mr. Milou Louis, who worked as senior systems programmer at the City’s recreation centers, was retiring from employment with the City, and Respondent, because of his availability and skill set, was tasked with replacing Mr. Louis. In explaining his actions related to his early departure from work on February 3, 2021, Respondent stated the following: On February 3, 2021, I was informed that I was required to be on-site at the City’s Parks & Rec centers where COVID-19 infection rates were among some of the highest for City employees. Notably, this documented infection rate does not consider infected members of the public who may use the centers. I immediately informed my manager, who rendered his lay opinion that I was at no higher risk than anyone else. Notably, I had not previously been assigned to be on-site, let alone during a pandemic. Thereafter, I suffered a sever anxiety attack because I legitimately feared for my health. At that point I left the building. Management told me I left at 1:30 PM. I contacted my supervisor at around 4 PM informing him I would take available FMLA leave for the rest of the day. As an initial matter, there is no credible evidence of record that Respondent’s particular work environment at the recreation centers would have been any more at risk for COVID-19 exposure than his regular work environment, or say, the electronics store where Respondent stopped during his lunch break on February 1, 2021. During Respondent’s email exchange with his supervisor on February 3, 2021, Mr. Williams clearly communicated to Respondent that he was confused about Respondent’s FMLA leave request. Respondent, despite having the opportunity to do so, never sought to clarify his leave request, and, for whatever reason, chose not to correct Mr. Williams’ erroneous belief that Respondent left work at 4:30 p.m., when all the while Respondent knew that he actually left work several hours earlier at 1:30 p.m. With respect to the events of February 3, 2021, the evidence establishes that Respondent violated City rules and regulations by failing to inform his supervisor of his early departure from work under circumstances where he clearly had the opportunity to do so. Also, as noted above, the email that Respondent sent at 4:30 p.m., on February 3, 2021, advised that Respondent was taking “One FMLA Episode From Now Till Tomorrow.” Because Respondent’s email was misleading as to when he actually left work, Respondent actually had a three-hour unauthorized absence from work (i.e., from 1:30 p.m. to 4:40 p.m.) and misled his supervisor as to the amount of FMLA leave that was being requested. February 10, 2021 On February 10, 2021, Respondent reported to work at his scheduled time and then left the office from 2:00 p.m. to 4:40 p.m. When asked by his department supervisor to account for the missing time, Respondent could not do so and instead elected to quibble with his supervisor about whether his authorized lunch break was 30 minutes or one hour in duration. Respondent’s unauthorized leave was charged against his accrued vacation hours.
Conclusions For Petitioner: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 For Respondent: Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Civil Service Board of the City of Clearwater enter a final determination suspending without pay Respondent’s employment for a period of two days. DONE AND ENTERED this 31st day of August, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2021. COPIES FURNISHED: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748 Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 02-29286. At all times pertinent hereto, Respondent was a certified law enforcement officer. The Respondent was employed as a police officer by the City of Miami Police Department from the time he went into the academy in 1981 through 1988. At the time of the formal hearing, Respondent was employed as a reserve police officer with the City of Virginia Gardens, a small municipality located in Dade County, Florida. On May 31, 1985, a drug rip-off occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug rip-off occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug rip-off occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Menocal did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system and had been placed in the Federal Witness Protection Program. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for substantial benefits to him. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had implicated. Mr. Pedrera's refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 and he knew Respondent as a fellow officer and as a friend. The gravamen of the complaint brought against Respondent is based on accusations made by Mr. Arias These accusations are buttressed by the hearsay testimony of Mr. Pedrera, but of no other testimony or evidence. The following is Mr. Arias's version of the pertinent events of July 12, 1985. According to Mr. Arias, he had gone to Mr. Pedrera's house to pick up Mr. Pedrera as part of their planned participation in the Tamiami Marina drug rip-off. Mr. Arias received a call from Respondent requesting him to come by Respondent's house to discuss a matter of importance. Mr. Arias and Mr. Pedrera went to Respondent's house before they went to the meeting place for the Tamiami Marina drug rip-off. When they arrived at Respondent's house, another person was present in the house, but the identity of this person was unknown to Arias or Pedrera. Mr. Arias contends that he and Pedrera were invited into Respondent's bedroom and shown a package shaped like a brick and wrapped in plastic which Respondent represented to be a kilo of cocaine. Neither Respondent, Mr. Arias, or Mr. Pedrera opened the package or attempted to test or weigh its contents. Mr. Arias contends that Respondent asked for Mr. Arias' assistance in selling the cocaine. Mr. Arias contends that Respondent wanted $25,000 for the sale, but that Respondent would give him the difference between the sales price and $25,000. Mr. Arias testified that when he told Respondent he would be unable to help sell the cocaine, Respondent told him that Oswaldo Cuello and Jose Benitez were coming to his house to discuss selling the cocaine. Mr. Cuello was a City of Miami police officer and Mr. Benitez was a drug dealer. Mr. Arias testified that after Cuello and Benitez arrived, he told them and the Respondent that he and other police officers were about to engage in the Tamiami Marina drug rip-off. Mr. Arias contends that Respondent wanted to participate in the drug rip-off, but that the leader of the expedition did not permit Respondent's participation. Mr. Arias contends that he and Pedrera then left to meet with the other participants in the drug rip-off. Respondent denies the accusations made against him by Mr. Arias and by Mr. Pedrera and contends that neither man was present at his residence on July 12, 1985. Little weight is given to Mr. Pedrera's hearsay testimony in light of his refusal to testify. Even if Mr. Pedrera's hearsay testimony was considered as buttressing that of Mr. Arias, the circumstances under which their stories were first given and the questionable credibility of Mr. Arias and Mr. Pedrera 1/ render their testimony an insufficient basis upon which it can be concluded that the factual allegations of the Administrative Complaint have been established by clear and convincing evidence. 2/ The denial of these accusations by Respondent is found to be credible based, in part, on his demeanor. In addition, the undersigned has considered that Respondent has never been prosecuted criminally, there was no evidence that his credibility has been called into question, and he was employed as a reserve police officer by the City of Virginia Gardens after a thorough background check. His performance as a reserve police officer by the City of Virginia Gardens has been above suspicion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Ignacio F. Menocal. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON 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 3rd day of July, 1991.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
The Issue Whether the disciplinary action taken against Arthur Ray Campbell was for good cause.
Findings Of Fact Arthur Ray Campbell is a Career Service Employee of the State of Florida employed by the Division of Law Enforcement, Department of Natural Resources. He was suspended for a period of eleven (11) working days for using the blue light on a Marine Patrol vehicle to run a red traffic signal in Cross City. Campbell filed a timely appeal of his suspension with the Career Service Commission. On February 10, 1976, the Florida Marine Patrol was ordered by the Office of the Governor of the State of Florida to provide personnel for a special assignment in Pensacola, Florida. These personnel were to assist local law enforcement authorities in controlling a civil disturbance in that city which had resulted from racial tensions in one of the high schools. Pursuant to those orders, Lieutenant Colonel J. J. Brown of the Florida Marine Patrol directed Major Louis Shelfer, the staff officer in charge of the Marine Patrol Emergency Squad, to notify the District Offices of the Florida Marine Patrol to dispatch Marine Patrol Emergency Squad personnel to Pensacola. Major Shelfer was ordered by Colonel Brown to make certain that all supportive personnel understood that in their movement to Pensacola blue lights and sirens would not be used. Colonel Brown further instructed Major Shelfer to advise the various district offices that personnel were to move as quickly as possible to Pensacola and that he wanted the Emergency Squad in Pensacola the morning of February 11, 1976. Just prior to 5:00 p.m. on February 10, 1976 Major Louis Shelfer called each of the district offices from which Emergency Squad personnel were being dispatched to Pensacola and advised the officer in charge or the dispatcher that the personnel on the Emergency Squad, who were already on standby for movement, were to be dispatched to Pensacola. Major Shelfer further directed that these personnel were to move to Pensacola as soon as possible but were not to run blue lights or sirens. He further advised that there was no emergency existing in Pensacola at the time. Major Shelfer did not give a time by which personnel would report in Pensacola. It was, however, the understanding of Colonel Brown and Major Shelfer that all personnel would be in Pensacola by 6:00 a.m. on February 11, 1976. In District 7, Major Shelfer spoke with Mrs. Patricia Morgan, secretary/dispatcher. Mrs. Patricia Morgan, who is also the wife of Captain H. C. Morgan, Jr., the District Supervisor of District Seven, received Major Shelfer's first alert call for the movement of the Emergency Squad personnel of District 7 to Pensacola at 4:45 p.m. on February 10, 1976. Shortly thereafter, she received the second call from Major Shelfer directing that the Emergency Squad personnel would proceed to Pensacola. Upon receiving the second call Mrs. Morgan contacted Officers Malcolm and Johnson on the communications radio and advised them that they were to proceed to Pensacola as quickly as possible but not "1018" by which she meant it was not an emergency. Mrs. Morgan further instructed these Marine Patrol Officers not to run red lights while proceeding to Pensacola. She specifically instructed Officer Malcolm that he would pick up Officer Campbell who would ride with him to Pensacola. While Officer Malcolm remembered Mrs. Morgan's reference to red lights, neither Officer Malcolm nor Officer Schumaker, who monitored their conversations, remembered any information passed on by Mrs. Morgan that the trip was not a "1018" run or not an emergency run. Mrs. Morgan was initially unable to contact Officer Campbell by radio and therefore called Officer Campbell's home and spoke with his wife giving her the information that she had given Officers Malcolm and Johnson. However, while speaking with Officer Campbell's wife, Officer Campbell called District 7 on his radio and asked Mrs. Morgan if she had any information for him. She advised Officer Campbell at that time that he would be going to Pensacola and would ride with Officer Malcolm. Mrs. Morgan did not remember giving Officer Campbell any information on the use of lights during the trip, but said that she did remember telling him it was not a "1018" run. Officer Campbell states that the information he received ordered him to return to his home and get ready to be picked up by Officer Campbell and that the information he needed had been passed on to his wife and Officer Malcolm. At approximately 7:30 p.m. on February 10, 1976, having secured from Water Patrol, gone to his home and packed, picked up Officer Campbell at his home, Officer Malcolm left Daytona for Pensacola. Officer Malcolm drove to Ocala using blue lights, where the men purchased hamburgers for their meal. Officer Malcolm ate while Officer Campbell continued to drive and the two officers changed over when they stopped to get gasoline. Officer Campbell then drove from the vicinity of Ocala to Cross City. As they approached Cross City, Officer Malcolm advised Officer Campbell to turn on the blue light because they were slightly over the local speed limit entering Cross City. As they approached the second traffic light in town which was red, Officer Campbell stopped or came almost to a complete stop at the light. As he started to proceed forward, having made certain the intersection was clear, the traffic light turned green. Malcolm and Campbell continued on through Cross City using the blue light until they reached the open highway on the north side of the city. Officer Malcolm's car does not have a siren but is equipped with blue light only. On the evening of February 10, 1976 Trooper J. R. Touchton was proceeding south on U.S. 19 in Cross City at approximately 9:00 or 9:30 p.m. He observed a northbound automobile, which shortly after he initially saw it, turn on its emergency blue lights. Trooper Touchton, not immediately identifying the type of vehicle he had passed, called his dispatcher to determine if another Florida Highway Patrol vehicle was operating in the area because the car which he had passed was a marked state law enforcement car similar to those of the Florida Highway Patrol. Touchton thought that the car which he had passed was in the process of stopping a truck immediately ahead of him. Touchton executed a "U" turn and proceeded north but shortly after Touchton turned, the truck which Touchton had thought the other patrol car was stopping turned left off the highway and the patrol car in front of him proceeded north out of Cross City still using its blue lights. Touchton saw the patrol vehicle ahead of him slow down or stop at the second traffic light but did not observe whether the second traffic light was red or green when the vehicle proceeded through it. In response to Officer Touchton's call the Highway Patrol Dispatcher advised Touchton that the vehicle which he had observed was probably a Marine Patrol vehicle being dispatched to Pensacola. Sergeant J. D. Peacock was following Officer Touchton south on U.S. 19 in Cross City and first observed that later he identified as a Marine Patrol vehicle approaching the second traffic light in Cross City. At that time the Marine Patrol had its blue lights and emergency flashers on; however, it did not have its siren on. Sergeant Peacock observed the Marine Patrol vehicle slow or stop at the traffic light and then proceed through the traffic light headed north on U.S. 19. Both Highway Patrol Officers indicated that the Marine Patrol vehicle was driving within the posted speed limit. On March 5, 1976 personnel in the Cross City, Florida Marine Patrol Office brought to Colonel J. J. Brown's attention the fact that a Marine Patrol car had passed through Cross City on February 10, 1976 using blue lights. This had been brought to the attention of the Cross City Marine Patrol by the Florida Highway Patrol Supervisor in that area, Sergeant J. D. Peacock. Colonel Brown directed Major Shelfer to conduct an investigation into the matter. Major Shelfer contacted all of the district supervisors who had sent personnel to Pensacola and requested that they provide him with the times and routes of travel of personnel which had been sent to Pensacola. From an analysis of this data, Major Shelfer determined that only personnel sent from District 7 in Daytona to Pensacola would have passed through Cross City enroute to Pensacola at the hour in question. Having determined this Major Shelfer directed Captain Morgan, Supervisor of District 7, to have the personnel from District 7 who were sent to Pensacola prepare written reports on their trips to Pensacola. Officers Campbell and Malcolm prepared and submitted written reports to Captain Morgan which were received into evidence at the formal hearing as Exhibits 5 and 6 respectively. Based upon the investigation conducted by Major Shelfer, Officer Campbell was suspended. Employee evaluations were introduced that indicate that Officer Campbell's efficiency for the period of time involved here was downgraded as a result of the conduct for which he was suspended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that substantial and competent evidence does not exist to show that the agency had good cause to suspend Officer Arthur Ray Campbell for insubordination. The Hearing Officer recommends that the suspension be set aside and further, that the Career Service Commission consider whether remedial action is necessary to clear his employee evaluation for the period in question. DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Kent A. Zaiser, Esquire Mrs. Dorothy Roberts Department of Natural Resources Appeals Coordinator 202 Blount Street Room 530 Carlton Building Tallahassee, Florida 32304 Tallahassee, Florida 32304 Melvin R. Horne, Esquire 800 Barnett Bank Building Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of May, 2011.
Findings Of Fact Prior to April 21, 1976, Gordon C. Barton had been employed by the City of Eustis Police Department for approximately six (6) years. At the time of his discharge in May, 1976, he had attained the rank of sergeant. As a sergeant, he was responsible for one of three patrol shifts, each consisting of three patrolmen. The City of Eustis Police Department consists of twenty-one (21) certified law enforcement officers and other support personnel. Authority over the department rests in the city manager under the city charter, while administration of the police department is the responsibility of the chief of police. The procedures governing, the employment relationship between and employee of the city and the city are set forth in the city charter (Respondent's Exhibit 14), the rules and regulations governing conduct, duties and procedures of Eustis Police Department (Respondent's Exhibit 13), and city ordinance 409 (Union's Exhibit 2). In February, after some discussion with his patrol sergeants, the chief of police had adopted a modification of the department's radio procedures. In early March, 1976, after some experience with the new procedures, Sergeant Barton discussed the subject of problems arising out of the change in radio procedures with Assistant Chief Horner. Horner suggested that Barton reduce his comments to writing because the chief was out of town and that Horner would present the matter to the chief upon his return. Barton authored the memorandum to the chief on March 3, 1976. The memorandum expressed concern with the safety and efficiency of the modified radio procedures. On the date the memorandum was prepared, Barton showed the memorandum to the sergeant relieving him who expressed to Barton the fact that he concurred in Barton's observations and wished to co-sign the memorandum. Barton assented to this and eventually the signatures of thirteen (13) additional police officers were placed on the back of the memorandum. On March 12, 1976, Sergeant Barton was called into Chief Burrows' office. Burrows asked Barton to express his views concerning the modified communications procedure. Sergeant Barton explained the problems that he and other were having with it. The chief criticized Barton for having publicized the contents of the memorandum by making it available to other officers for their signature. The chief's criticism of Barton for having allowed others to sign the memorandum caused an emotional exchange between the men. In late March, the chief learned from other police officers in the department that Sergeant Barton had solicited fellow police officers who were on duty in behalf of the West Central Florida Police Benevolent Association. In late March, the chief advised the city manager and city attorney that he desired to discharge Barton. He was requested by the city manager and city attorney to provide them with information on Barton's conduct upon which the termination was to be based. The chief prepared a memorandum to the city manager (General Counsel's Exhibit 3), and several meetings were held between the chief, city manager, and city attorney. Their evaluation of the grounds asserted by the chief for Barton's discharge resulted in a letter of discharge dated April 20, 1976, which was signed and delivered to Barton by the chief of police, prepared by the city attorney, and approved by the city manager. This letter was delivered to Barton on April 21, 1976, while Barton was waiting to go on duty at 3:00 P.M. When asked for some justification of his termination, Barton was told by Burrows that if Barton requested in writing the grounds for the discharge that Burrows would look it over. Notations on the memorandum prepared by the chief and submitted to the city manager and city attorney and the testimony of the city manager indicate that four of the paragraphs in the letter of discharge relate to the memorandum authored by Barton and signed by his fellow officers. Police Chief Burrows freely admitted that the preparation and submission of the memorandum signed by the police officers was one of she reasons for the termination of Barton. The City of Eustis is a public employer as defined by Chapter 447, Florida Statutes. The Charging Party, West Central Florida Police Benevolent Association, is a labor organization as defined under the act. The Charging Party was not the "organization", however, with which the public employer interfered. The organization which was interfered with was the group which signed the memorandum. It was not the group which was interfered with which brought the unfair labor practice charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Public Employees Relations Commission enter its order directing the following: That the City of Eustis offer Gordon C. Barton immediate and full reinstatement to his former position of employment, or if such employment no longer exists, to reemploy Barton in a substantially equivalent position without prejudice to his seniority or rights or privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Such back pay shall include interest at a rate of 6 percent per annum and computed quarterly and in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1949); Pasco Classroom Teacher's Association, PERC Case No. 8H-CA-754-1037 (Order No. 76U-875) (April 1, 1976); and Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice stating that all public employees have the right to form, join, and participate in, or to refrain from forming, joining, or participating in any employer organization of their own choosing and may not be discharged or otherwise discriminated against because of their exercise of these rights. DONE and ORDERED this 8th day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Anthony Cleveland, Esquire Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Norman F. Burke, Esquire Van Den Berg, Gay & Burke, P.A. 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32801 Ben R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303
