The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether or not Petitioner, Gloria J. Edwards, was unlawfully discriminated against by Respondent, Dollar Rent A Car, based on her race (Black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, Gloria J. Edwards, a black female, during times material to September 3, 1990, was employed by Respondent, Sundance Carriage Corporation, d/b/a Dollar Rent A Car (Sundance) as a daily business report auditor in Tampa, Florida. On September 3, 1990, Sundance was terminated as a licensee by Dollar Systems and ceased operations as a Dollar Rent A Car licensee. On October 1, 1990, Scamp Auto Rental, Inc. obtained a license to engage in business as Dollar Rent A Car in several Florida locations including Tampa, from Dollar Systems, Incorporated. Petitioner, although a member of a protected class, failed to establish that she was unfairly assigned duties by Respondent; that she was unfairly denied either a pay raise or a promotion or that she was assigned a larger workload based on her race. Likewise, there was no showing that she was unlawfully placed on probation. Although Scamp hired some of Respondent, Sundance's former employees, Petitioner was not among those employees who was retained. Scamp is a corporation, unrelated to Sundance, with no common officers or directors. The license agreement between Sundance and Dollar Rent A Car System reveals that Sundance was licensed to use a plan or system known as the Dollar Rent A Car system in the conduct of its vehicle renting business. That agreement provides that Sundance is an independent contractor and is not the partner, co-venturer, agent or associate of Dollar Systems and that Sundance has no authority whatsoever to bind Dollar Systems to any of the obligations or responsibilities or to incur debts for, or on behalf of, Dollar Systems. At no time has Dollar Systems controlled, or had the right to control, the method or mode of operation of Sundance's business on a day-to-day basis. At no time during the performance of the license agreement has Dollar Systems held any property interests in the Sundance operation. Dollar System has not owned any of Sundance's stock. All trade names, service marks, and trademarks used in connection with the Dollar Rent A Car System have, at all times, remained the exclusive property of Dollar. Dollar Rent A Car Systems, Inc., has authorized Dollar Systems to license the use of the tradenames, service marks, and trademarks. Sundance was allowed the use of such items only in accordance with the license agreement. Dollar Systems has not shared in Sundance's profits or losses but instead Dollar Systems received, pursuant to the license agreement, an administrative fee from Sundance based on a percentage of Sundance's recorded gross time and mileage charges from rental of automobiles. This fee was paid by Sundance as a cost of doing business regardless of whether Sundance operated at a profit or loss or whenever Sundance received payment from a renter for any particular rental. Dollar Systems has not participated in, or had the right to participate in, the hiring, firing, or supervision of Sundance's personnel. At no time has Dollar Systems participated in, or had the right to participate in, determining the wages of the employee benefits provided to Sundance employees. Finally, Dollar Systems terminated Sundance's licenses on September 3, 1990. In view thereof, it is concluded that Scamp Auto Rental is not a successor of Sundance and cannot be held legally liable for alleged discriminatory actions of Sundance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed herein. DONE and ENTERED this 4th day of August 1993 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1993. COPIES FURNISHED: Gloria J. Edwards P. O. Box 260751 Tampa, Florida 33685-0751 Margaret D. Mathews, Esquire Connie Harvey, Esquire Stagg, Hardy, Ferguson Murnaghan & Mathews P. O. Box 959 Tampa, Florida 33601-0959 William F. Flynn c/o Dollar Rent A Car 4707 W. Spruce Street Tampa, Florida 33607 Sharon Moultry Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Odell Hines and Dorothy Spray Hines (who are man and wife) operate the Rooster's Comb, a beauty salon in Gainesville, Florida. A building with exterior dimensions of 18 feet in width and 60 feet in length houses the shop, a single room in which there are several booths manned by respondents and nine or ten employees. Every employee does not work every day. Although, with the exception of a couple of "floaters," each operator is assigned a particular booth or station, no one operator works in the same place all of the time. Cosmetology licenses or certificates of registration issued to respondents and their employees are all posted on a bulletin board. The bulletin board, which weighs approximately one and one half pounds, leans against a wall, so that the licenses are plainly visible, and is situated within 20 feet of every operator who is working and about three feet from the manicurist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondents. DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 D. Spray Hines and Odell Hines d/b/a The Rooster's Comb, Inc. 2405 S. W. 13th Street Gainesville, Florida 32608
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.
Findings Of Fact The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 6th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313 Petitioner's Proposed Findings of Fac A-C. Accepted. D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. E-F. Accepted. G-H. Accepted, but not in itself materially dispositive. I-J. Accepted, but not in themselves materially dispositive. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations. Accepted, but not itself material. Rejected, as immaterial. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact. Rejected, as immaterial. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner. Accepted, but not itself materially dispositive. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428 Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE 225 South Adams Street Suite 250 Tallahassee, FL 32301
The Issue The issue in this case is whether Respondent, Michael Williams, should be disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended, alleged in a Notice of Termination of Employment and Immediate Suspension Without Pay issued March 18, 1999.
Findings Of Fact Respondent, Michael Williams, is licensed to teach in Florida. He holds Florida Educator's Certificate No. 456063, which allows Mr. Williams to teach physical education. Mr. Williams' license was valid through June 30, 1999. Mr. Williams has been employed as a teacher or substitute teacher by Petitioner, the Duval County School Board (hereinafter referred to as the "District"), since 1978. Mr. Williams was employed by the District at all times relevant to this matter. Mr. Williams is tenured. During the 1997-1998 school year, Mr. Williams was employed as a physical education teacher at First Coast High School (hereinafter referred to as "First Coast"). During the summer of 1998, following the 1997-1998 school year, Mr. Williams served as a teacher at First Coast during the summer session. The summer session started June 15, 1998, and ended July 23, 1998. Laterra Clark was a student at First Coast during the 1997-1998 school year. Ms. Clark was a junior. Ms. Clark was 18 years of age on June 25, 1998. On or about June 29, 1998, Ms. Clark went to First Coast to obtain a transcript which she needed in order to transfer to another high school. Ms. Clark had moved in with her God sister, Jitenga Thomas, who lived in the school district for the high school to which Ms. Clark planned to transfer. Before going to the office to obtain a copy of her transcript, Ms. Clark met Fred Culver, a coach and physical education teacher at First Coast. Ms. Clark and Mr. Culver were either in the gymnasium or they went to the gymnasium after meeting. While in the gymnasium, Coach Culver and Ms. Clark met Mr. Williams. Mr. Williams was leaning against a table in the gymnasium just outside the entrance to the boys' locker room. Ms. Clark leaned against the table close to Mr. Williams. Mr. Williams and Ms. Clark knew each other because she had been in his physical education class. Mr. Williams and Ms. Clark talked for a while. Mr. Williams touched Ms. Clark on her buttocks. Ms. Clark jumped up when he did so, but returned to leaning against the table next to him. Eventually, Mr. Williams told Ms. Clark that they should go to his office where they could talk. Ms. Clark agreed and followed Mr. Williams in to the boys' locker room. Ms. Clark had not been in the boys' locker room before. She had been in the girls' locker room, which has almost the same layout as the boys' locker room. One difference in the layout of the girls' and boys' locker room is that the coaches' office in girls' locker room may be accessed by going into a room next door to the coaches' office and through a bathroom in the back of that room. The room has lockers in it and is used by the coaches as a changing room. The coaches' office in the boys' locker room has the same type of changing room with a bathroom in the back as the girls' locker room but the bathroom is not connected with the coaches' office. The door to the changing room in the boys' locker room is reached before the door to the coaches' office. Mr. Williams led Ms. Clark to the coaches' changing room, unlocked the door, and opened it. The light was not on. Mr. Williams led Ms. Clark to the door to the bathroom at the back of the changing room, opened the door to the bathroom, turned on the light, and stood aside to allow Ms. Clark to walk in. Ms. Clark thought that the room led to the coaches' office, as it does in the girls' locker room, but realized as soon as she walked into the room that there was door to the office. She turned around and asked Mr. Williams what they were doing in the bathroom. Mr. Williams responded, "you know what we're doing," and moved closer to Ms. Clark. Mr. Williams had closed and locked the bathroom door. He picked Ms. Clark up and put her down on the sink. Ms. Clark began asking Mr. Williams what he was doing and kept sliding off the sink. Mr. Williams pressed his body against Ms. Clark and rubbed her right breast. Mr. Williams, who was wearing shorts, became aroused and his penis was erect. Mr. Williams did not expose his penis to Ms. Clark. Ms. Clark attempted to leave the bathroom, but Mr. Williams turned her around and began to unbutton her floor-length denim dress. Mr. Williams managed to get enough buttons open to put his hand inside, touch her panties, upper thigh, and her vagina. Mr. Williams told Ms. Clark that she was "hairy." Ms. Clark continued to resist and ask Mr. Williams "What are you doing?" She told Mr. Williams "stop." Mr. Williams told Ms. Clark, "Well, then, you say you're grown. Act like you're grown." She eventually got the door to the bathroom open and went out into the changing room. Mr. Williams did not try to prevent her from leaving. Ms. Clark buttoned up her dress and then followed Mr. Williams out of the changing room and to the coaches' office next door. The episode lasted approximately ten minutes. Mr. Williams' conduct in the bathroom with Ms. Clark was unwanted and uninvited by Ms. Clark. Mr. Williams and Ms. Clark sat in the coaches' office for a short time until Michael Chandler, the Dean of Boys, came to get Mr. Williams. Mr. Williams and Ms. Clark followed Mr. Chandler out of the boys' locker room. Mr. Williams and Ms. Clark went their separate ways. Ms. Clark did not immediately report the incident to any authority at First Coast. Immediately upon leaving the gymnasium Ms. Clark ran into a close friend whom she told about the incident. She told another close friend immediately after leaving First Coast. Finally, she told her God sister about the incident that evening. Although there were some discrepancies in what Ms. Clark told her close friends and her God sister, or in what they recalled, their recollection of what Ms. Clark told them was consistent in most material aspects. A few days after the June 29, 1998, incident, Ms. Clark returned to First Coast to get a copy of her transcript. In addition to confronting Mr. Williams, Ms. Clark reported the incident to two teachers, Coach Fred Culver and Ben Fleming. Neither teacher took any action to report the incident to administrators at First Coast. When Ms. Clark returned to school the following school year, she was teased by students about the incident and left school. Mr. Williams' conduct in taking Ms. Clark into the boys' locker room was inappropriate for a teacher. Mr. Williams' conduct with Ms. Clark was inappropriate. Mr. Williams admitted taking Ms. Clark into the boys' locker room. His explanation about why he took Ms. Clark into the boys' locker room was not credible. On or about March 18, 1999, a Notice of Termination of Employment and Immediate Suspension Without Pay was issued on behalf of the Superintendent of the Duval County Public Schools alleging that Michael Williams had violated Sections 4(a) and (b) of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (hereinafter referred to as the "Act"). The District alleged the following specifications for the alleged violations of the Act: On or about June 29, 1998, you made sexually suggestive remarks to a female student, L. C. and attempted to undress her. You fondled her breasts and genital area and exposed your penis to her. By letter dated March 24, 1999, Mr. Williams requested a formal administrative hearing to contest the allegations of the March 18, 1999, Notice. The Notice and request for hearing were filed with the Division of Administrative Hearings by letter dated April 13, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the District discharging Michael Williams from his position of employment with the Duval County School Board. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 21st day of October, 1999. COPIES FURNISHED: John C. Fryer, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Ernst D. Mueller, Assistant General Counsel Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner, Samual D. Hayes, who is black, was initially hired by respondent, Martin Marietta Data Systems, Inc. (Martin Marietta) in 1978. Martin Marietta is an employer within the meaning of Subsection 760.02(6), Florida Statutes, and has offices in Orlando, Florida. Hayes first served in the position of senior computer systems designer at a salary of $19,500 per year. He later received a promotion to senior business systems designer, then held the position of product support manager, and eventually became a manager II and head of the engineering sup- port section of the engineering and scientific systems group. In that position he was in charge of approximately twenty other persons, and was considered a part of the managerial staff of the firm. His final salary with Martin Marietta was $36,900 per year. Throughout his tenure with the firm, Hayes received good evaluations concerning the quality of his work. On August 16, 1984 Hayes was terminated from employment with Martin Marietta. He was charged with "misconduct." Underlying the charge of misconduct were allegations that Hayes has sexually harassed two female employees of the firm, and a female applicant for employment. Almost three months later he filed a complaint with the Florida Commission on Human Relations alleging that the sexual harassment charges were merely a pretext on the part of the employer, and that he was actually discharged because of his race. That prompted the instant proceeding. Martin Marietta is a division of Martin Marietta Corporation and is basically engaged in the computer service industry. It generally provides computer software packages, consulting services, data processing services, and all internal accounting for its parent corporation. At the present time it employs some 4,000 employees in the United States and some 1,200 in Great Britain. Since 1964 the firm has had a policy which prohibits discrimination based upon race, sex or ethnic backgrounds. That policy is consistent with federal guidelines. In addition, at all relevant times it had a specific company policy which required the "maintenance of a work environment free of sexual . . . harassment." This policy was incorporated into the written Corporate Policy Manual of the company and was disseminated to all managerial level employees to ensure compliance with the policy. As a manager, Hayes was familiar with this policy and the general prohibition against sexual harassment. Martin Marietta is a contractor on the list of firms qualified to bid on federal government projects. Under federal law, a government contractor is subject to having its contract cancelled, payment withheld, or to be taken off the bidding list if the firm is found guilty of sexual harassment. A contractor is also subject to liability in a civil action for sexual harrassment acts of its employees. As such, Martin Marietta was serious in its efforts to prevent sexual harassment, and to punish any employee found guilty of those charges. It demanded stricter compliance with the policies by its managerial level employees, since it was they who the firm expected to enforce company policies regarding discrimination and harassment. Helen Adams was a married female employee under the supervision of Hayes. In January, 1982 she attended a weeklong company seminar at the Gold Key Inn in Orlando. One afternoon during the seminar, Hayes telephoned her from the lobby and asked if he could come up to her room to see how she was doing. She agreed. Once there, he began talking about "intercourse," and then grabbed her and kissed her. Adams pushed him away and demanded he leave the room. About two days later Hayes apologized. However, the next time he called her into his office at work, he pushed his chair back from his desk where he was sitting, and displayed an erection through his pants. According to Adams, he continued to do this "all the time" until his discharge in August. During this same period he attempted on one occasion to put his arm around Adams, and he propositioned her on another occasion. He also cautioned her that the company's personnel officer was a close friend and it would do her no good to complain. Because of this, and the fact that she was a new employee and fearful of losing her job, she made no complaints to other company personnel. After she finally complained to another supervisor and attempted to transfer to his section, Hayes told her to "cut out the bull-shit." Adams' complaints finally surfaced in August, 1982 when other complaints were lodged against Hayes. She is now considering a law suit against Martin Marietta for Hayes' actions. Virginia Wright is a single female who worked for Martin Marietta between December, 1977 and September, 1983. She was under the direct supervision of Helen Adams, whose section Hayes managed. She was in daily contact with Hayes since her work area was immediately adjacent to Hayes' office. While working on her terminal one day in January, 1982 Hayes approached her and placed his hands on her shoulders and began massaging them. He told her he could make her "feel good" and that they should get together. When she appeared afraid, he backed away. In February she asked for a transfer but was told by Hayes they would have to get together in her apartment and talk about it. When she threatened to complain, Hayes told her she was "fat and black," and that nobody would believe her. Wright was initially reluctant to complain because she was embarrassed, because it was her word against that of a manager, and because the head of Martin Marietta EEO was a good friend of Hayes. In August, 1982 she finally voiced her complaints to personnel after she was transferred to what she considered to be a less responsible position. Just before she formally voiced her complaints, Hayes approached her and said "I know what you did, now you'll pay." Sharon Ann Sconiers (now Savage) was seeking employment with Martin Marietta. Sconiers, who was a single parent at the time, was a former college roommate of Virginia Wright, and was encouraged by Wright to contact Hayes concerning employment. The three agreed to meet at an Orlando area restaurant for lunch one day in February, 1982. At their meeting Sconiers gave Hayes her resume which also contained her unlisted telephone number. Hayes also inquired about her marital status, and was told she was a single parent. After lunch, and while assisting Sconiers to her car, Hayes told her she must be lonely and that he could help her end her lonely nights. A few days later, Hayes telephoned her at home- late one Friday afternoon. After she inquired about her job application, he advised her he was still reviewing it. He then asked her to spend the weekend with him in Lakeland where a basketball tournament was being played. She declined. On her birthday she received a card from Hayes. Sometime later, Hayes told Virginia to tell Sconiers he had lost her job application and if she still wanted a job, she would have to fill out another application. In August, Sconiers learned of other sexual harassment complaints against Hayes and revealed Hayes' advances to Martin Marietta personnel. Hayes contends that other Martin Marietta employees were guilty of misconduct, but were treated less harshly than he. Specifically, he referred to a situation involving Jim Elliott, a white manager, who was "involved" with a female employee. But in the case of Elliott, it was a voluntary "affair" between the two, and no complaints had been filed. Elliott was promptly transferred to another section when the affair was discovered. Hayes also spoke of Chris Larson, another white manager, who was allegedly involved in similar sexual harassment charges. But other than Hayes' vague allegations, and the testimony of a second employee who stated there were "rumors" concerning Hayes, there is no credible evidence that Larson did indeed commit such an offense, or that any complaints of this nature were ever filed against him. Finally, Hayes testified that there were "altercations" by unnamed managers at the Gold Key Inn on undisclosed dates and they were simply counseled for their actions. However, this allegation was not explained, corroborated or confirmed by any competent testimony. Uncontradicted testimony established that Martin Marietta did not treat Hayes differently because he was black. The company felt compelled to fire him once it learned the com- plaints of the three women were valid, especially since Hayes occupied a managerial level position and one of the charges involved a prospective employee. Moreover, the company was extremely vulnerable due to its status as a government contrac- tor. It is not the first time a Martin Marietta employee has been fired for such conduct. Indeed, a white plant manager in South Carolina with 25 years of service was discharged for simi- lar conduct in June, 1981. Some four months later, a black foreman at the same plant had no action taken after similar charges were shown to be groundless. Hayes contends that the charges against him were not properly investigated prior to his dismissal, that the three women conspired against him collectively, and suggests that the written statements against him by Adams, Wright and Sconiers were solicited only after he had already been fired. But the evidence reveals that the EEO officer (Ben Morrall, Jr.) in the aerospace division of Martin Marietta first learned of the alleged misconduct by Hayes through Wright and the husband of Adams around June or July of 1982. This information was conveyed to Hayes' affirmative action officer who informed Hayes of the allegations. When Morrall's request for an investigation of the charges went unheeded, Morrall telephoned corporate headquarters in Bethesda, Maryland. Headquarters then initiated an appropriate investigation which included interviews with the three women. It then became a matter of whether the company believed the three complaining witnesses, or Hayes. Accepting the women's stories as being true, the company made the decision to fire Hayes, and not offer him severance pay or a lateral transfer to another position elsewhere. Notes of these interviews were compiled and reviewed prior to this decision. The substance of the interviews was memorialized in notarized statements after Hayes filed his complaint with the Commission. The undersigned has found no evidence to support the "conspiracy" theory as suggested by Hayes, and instead finds the testimony of the three women to be credible. The undersigned also finds that Hayes' race (black) did not enter into or affect in any way the decision of the company to terminate the employee.
Conclusions The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. Subsection 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer "[t]o discharge . . . any individual . . . because of such individual's race." To establish an unlawful employment practice, the burden of proof rests upon the discharged employee to present by competent and substantial evidence a prima facie case that such a practice has occurred. If such a case has been presented, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for discharging that employee. If this burden is met, the employee must then prove that the stated reason for discharge is a mere pretext, and that discrimination was the real motive. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Hayes met his initial burden through evidence, which standing alone, established a prima facie case that he is black, that he was discharged from his employment with respondent, and that similarly situated non-black males were allegedly not so adversely treated. However, respondent has successfully countered those allegations by a greater weight of the evidence that Hayes was discharged for a legitimate, nondiscriminatory reason, sexual harrassment, and that there was no racially motivated reason for his termination. At the same time, it has dispelled the suggestion of Hayes that the employer treated Hayes less favorably than others merely because of his race. The evidence shows that the company fired a white manager for identical reasons to those used to fire Hayes, and a black foreman was not fired when similar charges proved groundless. Hayes' contentions regarding other inappropriate acts of Martin Marietta employees were either unsupported by the evidence, or were clearly distinguishable in severity from the offenses for which he was charged. Therefore, it is concluded that no "disparate treatment" occurred within the meaning of that term. There being a legitimate, nondiscriminatory reason for Hayes' firing articulated by the employer, and there being a lack of credible evidence to show that the proffered reason was a mere pretext, Hayes' complaint should be dismissed with prejudice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief be DISMISSED with prejudice. DONE and ORDERED this 13th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1986. COPIES FURNISHED: Harry L. Lamb, Esquire 621 N. Fern CreeX Ave. Orlando, Florida 32803 Thomas C. Garwood, Jr., Esquire Christine M. Alber, Esquire 57 W. Pine St., Suite 202 Orlando, Florida 32801 Dana Baird, Esquire Fla. Comm. on Human Relations Bldg. F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 APPENDIX PETITIONER Covered in finding of fact 1. Covered in finding of fact 1. Rejected as being unnecessary. Covered in finding of fact 10. Rejected as being unnecessary. Rejected as being unnecessary. Rejected as being contrary to the evidence. Partially rejected and partially covered in finding of fact 10. Rejected as being contrary to the evidence. Covered in finding of fact 8. Covered in finding of fact 11. A portion of this finding is covered in finding of fact 8 and a portion has been rejected as being irrelevant. Rejected as being contrary to the evidence. Rejected as being contrary to the evidence. Partially covered in finding of fact 1. RESPONDENT: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 10. Covered in finding of fact 10. Covered in finding of fact 10. Covered in findings of fact 5 and 10. Covered in findings of fact 6 and 10. Covered in findings of fact 7 and 10. Covered in finding of fact 10.
Findings Of Fact At all times pertinent to the allegations herein, the Commission was the state agency in Florida charged with the responsibility of certifying law enforcement officers. Respondent was certified as a law enforcement officer under certificate No. 13-89-002-01, issued on October 12, 1989. On May 23, 1991, Jenny Atkins was working as a security agent at J. Byron's department store in Kissimmee, Florida, along with Joann Prieto, another security agent. She observed the Respondent in the store's dress department on that afternoon. Respondent had come to her attention because she did not appear to be a regular J. Byron's customer and was carrying a large purse. While watching, she observed Respondent take a dress off the rack and thereafter go to the lingerie department, where she took a pair of panties, put them under the dress, and take both items into the fitting room. Being somewhat suspicious, Ms. Atkins went into the next fitting room and, with the aid of a small mirror, saw Respondent remove a pair of spandex pants she was wearing and put on the panties she had taken from the store stock. She did not take off the price tag. Respondent then put on the store's dress and came out of the fitting room, got another dress, and took it back into the fitting room. After trying both dresses, Respondent took them off, put them back onto their hanger, put her spandex pants back on over the store's panties, and went out into the store where she wandered around for the next half hour. While Respondent was still in the store, Ms. Atkins checked the two dresses she had had in the dressing room and discovered that the hanger from the store's panties was caught in the loop in back of one dress, and the plastic price ticket from the panties was in the pocket of the other dress. While in the store, Respondent made a purchase and when she departed, went into a jewelry store and a third store where she tried on merchandise. When Respondent left the fitting room, Ms. Atkins checked it for the panties but they were not there. Ms. Atkins stopped Respondent when she left the store. At that time, Respondent neither admitted nor denied taking the panties. However, in the course of the conversation, she indicated that "they" could not do this because she was a police officer. Later on she indicated she was a community service officer. Neither Ms. Atkins nor anyone else gave Respondent permission to take the panties. Atkins has made approximately 50 arrests for shoplifting and is convinced that Respondent's actions constituted shoplifting. When she asked Respondent for the merchandise, Respondent agreed if the police were not called. The police were called, however, and the matter was referred to Lt. Simonson, the Director of internal Affairs for the Kissimmee Police Department because the Respondent was a police officer. On May 24, 1992, he took a statement from Respondent during which he asked her how the price tag had come off the panties. At that time she said she didn't know but may have done it herself. She had no explanation as to how the tag got into the pocket of the dress and stated that the hanger might have been caught in the dress by accident. Respondent told Lt. Simonson the panties were a bit big in the back but made no explanation as to why she kept them on when she left the store. She said she tried them on because she had recently lost weight and as a result, her size varied. She claimed she wanted to be sure they fit before she bought them. Taken together the evidence clearly indicates the Respondent shoplifted the panties, though for reasons not related to this hearing, she was not prosecuted for it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered revoking Respondent's certification as a law enforcement officer in Florida as evidenced by certificate No. 13-89-002-01, issued on October 12, 1989. RECOMMENDED this 30th day of November, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. COPIES FURNISHED: Steven G. Brady, Esquire Department of Law Enforcement Hurston Building, North Tower 400 W. Robinson Street, N-209 Orlando, Florida 32801 Latisha A. Frank 1412 Montana Avenue St. Cloud, Florida 34769 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Acting General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the stipulations of the parties and the testimony of the witnesses at the hearing, the following findings of fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on December 18, 1984, and was issued certificate number 30-84-999-04. Respondent was employed at the OPD from November 26, 1984, through November 7, 1989, as a police officer. During a portion of that period, Respondent supervised and advised the Police Explorers group. The Police Explorers is a voluntary group of teenagers who are interested in learning about law enforcement and who participate in individual as well as group activities. Those activities include: fund-raisers; social events; and learning about statutes, laws, firearms, and police procedures. During a period of time when she was doing poorly in school and having personal difficulties at home, Amanda Ribakoff, a minor female, became active in the OPD sponsored Police Explorers group. That involvement began at the urging of Respondent. He had earlier picked up Miss Ribakoff for violating the local curfew for minors and had suggested to Mrs. Ribakoff that the Explorers would be a good alternative for Miss Ribakoff. At all times material to this case, Respondent's contact with Miss Ribakoff was as a result of her involvement in the Explorers and Respondent's role as a sponsor/advisor of that group. Several months after joining the Explorers, Miss Ribakoff noticed that Respondent began to treat her differently. For example, he began to touch her on the shoulders or back whenever he talked to her. He used "dear" or "honey" when addressing her. Miss Ribakoff noted that Respondent did not treat other female Explorers in the same manner. Further, Respondent would frequently appear at the OPD on weekends when Miss Ribakoff washed cars. On two occasions Respondent kissed Miss Ribakoff on the mouth. While Respondent did not use force, Miss Ribakoff did not consent to such expressions of affections. At the times of these incidents, Miss Ribakoff was either fifteen or sixteen years old, and Respondent was aware of her age. During an Explorer group trip to the movies, Respondent asked Miss Ribakoff if she would make love with him. On another occasion, Respondent showed Miss Ribakoff photographs of a nude man and woman. While washing cars at the OPD, Respondent sprayed Miss Ribakoff's shirt with water. Respondent suggested, in Mr. Barker's presence, that Miss Ribakoff take off her shirt. Because of the foregoing incidents, Miss Ribakoff became reluctant to attend Explorer functions. In fact, she withdrew from the Explorers in 1989. When questioned as to why she delayed in reporting the Respondent's actions, Miss Ribakoff explained that she was afraid of the Respondent. Later, after Respondent shined a light into Miss Ribakoff's room one night, she determined that she should tell authorities of the Respondent's prior acts. To that end, she reported the above-described incidents to Officer Wendell at the OPD. Respondent admitted that he patrolled alone with Miss Ribakoff in violation of his own policy regarding same. One of the kissing incidents occurred while the Respondent and Miss Ribakoff were on patrol. Respondent pulled the police vehicle behind a veterinary clinic and made the advance. At the time, Respondent was on duty and in uniform.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order suspending the Respondent's certification for a period of one year, and placing him on probation thereafter for a period of two years. DONE and ENTERED this 11th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 6 are accepted. With regard to paragraph 7, it is accepted that Respondent detained Amanda and her underage friend, the weight of the evidence suggests that two others, who were of age, were not taken into custody. Paragraphs 8 through 20 are accepted. Paragraph 21 is rejected as irrelevant. Paragraphs 22 through 27 are accepted. With regard to paragraph 28, it is accepted that Miss Ribakoff did not consent to the kiss. There should be no suggestion that Respondent used force to kiss the minor; just that he, in fact, kissed her on the mouth. Paragraphs 29 through 32 are accepted. With regard to paragraph 33, see comment 6 above. Paragraphs 34 through 37 are accepted. Paragraph 38 is rejected as speculation not supported by the evidence. It is accepted that Respondent had seized photographs, however, there is no evidence from which it must be concluded that the seized photos and the ones shown to Miss Ribakoff were the same. With regard to paragraphs 39 and 40, it is accepted that the seized photos were locked in Respondent's desk; otherwise rejected as irrelevant or hearsay. Paragraphs 41 through 44 are accepted. With regard to paragraph 45, it is accepted that Mr. Barker has not gotten into more trouble with the law since the incident for which he performed community service in Oviedo. Paragraphs 46 through 50 are accepted. Paragraphs 51 and 52 are rejected as irrelevant. Paragraphs 53 through 65 are accepted. Paragraph 66 is rejected as irrelevant. With regard to paragraph 67, it is accepted that Miss Mitchell was interviewed. Paragraphs 68 through 75 are rejected as irrelevant, recitation of testimony, or comment on the evidence. Paragraphs 76 through 80 are accepted. With regard to paragraph 81, it is accepted that Respondent admitted he may have hugged Miss Ribakoff but, if so, the admission claimed it was only done in a supportive manner. Respondent has not admitted inappropriate touchings. Respondent has not testified, under oath, as to any touching. Paragraphs 82 through 86 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 4 are accepted. Paragraphs 5 through 10 are rejected as recitation of testimony, comment of the charges, allegation of fact not supported by the evidence presented in this case, or argument. COPIES FURNISHED: Gina Cassidy Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Allen G. Jurek 1006 Ragsdale Road Oviedo, Florida 32765 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character as alleged in the Amended Administrative Complaint.
Findings Of Fact Respondent was certified by the Petitioner on April 2, 1982, and was issued Law Enforcement and Instructor Certificate Number 124699. Respondent was employed by the Miami Dade Police Department from April 2, 1982, until his employment was terminated as a result of the incident at issue in this proceeding. Respondent had a good record while working for the Miami Dade Police Department. He earned several commendations and received performance evaluations of satisfactory or above. Respondent is the biological father of Shannon Delano, a female born March 10, 1973. Shannon's parents divorced when she was four, and her mother was awarded primary custody of Shannon and of Shannon's twin sister. In 1981, Respondent moved to Florida. As a consequence of the divorce and of Respondent's move to Florida, Shannon seldom saw her father while she was growing up. Shannon maintained periodic telephone contact with him over the years and visited him in Florida in 1992, while she was on Spring break. They had a pleasant visit on that occasion. After he moved to Florida, Respondent married for the second time to a woman named Patrice. Respondent and Patrice had a son named Sean. Shannon joined the United States Air Force on October 15, 1992. Her permanent assignment was as a member of the military police at Langley Air Force Base in Virginia. In 1993, she was temporarily assigned to duty in the United Arab Emirates (UAE) as a support person for Desert Storm. While in the UAE, Shannon talked to Respondent occasionally by telephone. While she was in the UAE, Shannon and Respondent agreed that she would visit Respondent and Sean when she returned to the United States from the UAE. Respondent and Patrice had divorced by that time and Respondent was living alone in a two-bedroom apartment in Broward County, Florida. Their visit began on January 8, 1994. Respondent paid for Shannon's roundtrip airline ticket from Virginia to Florida. The visit was uneventful until the evening of January 12, 1994. Respondent worked his usual hours on January 12, 1994, and thereafter returned to the two-bedroom apartment at approximately 6:00 p.m. Respondent and Shannon had made plans to go out to eat dinner and then go to a comedy club that night. Respondent and Shannon were alone in the apartment. Respondent and Shannon engaged in a conversation in the living room area of the apartment. Because Shannon thought Respondent was despondent about his child custody fight over his son and his relationship with Shannon's twin sister, she hugged him and began to rub his back. There is a conflict in the evidence as to what happened next. The record establishes clearly and convincingly that Respondent thereafter preformed oral sex on Shannon, that he placed his mouth and tongue in her vaginal area, that he penetrated her vagina with his finger, and that he penetrated her anus with his finger. The conflict is whether Shannon was a willing participant in this sexual encounter. According to her testimony, Respondent forced her to the floor using a police take-down technique; he forcibly removed her clothing, and he held her down with his body and with one arm while he performed the sexual acts on her. She testified that she asked him to stop, but that she was too stunned to physically fight him. Respondent testified that Shannon was a willing participant and that the sexual encounter was consensual. Shannon and her father went to the comedy club that night, she subsequently rode with him on patrol where she met several of his colleagues, and she stayed with him at his apartment until her scheduled return flight to Virginia. Shannon returned to active duty in Langley, Virginia, as scheduled without reporting the incident. Approximately two weeks after the incident, she reported the incident to her superiors. She thereafter contacted the Broward County Sheriff's office, who assigned Detective Deborah Cox to conduct an investigation. As part of her investigation, Detective Cox had Shannon engage in a telephone conversation with Respondent that Detective Cox monitored and taped. Detective Cox also had Patrice engage in a telephone conversation with Respondent that Detective Cox monitored and taped. In his telephone conversation with Patrice, Respondent categorically denied that he touched Shannon and lamented that he was being falsely accused. Although there are statements made by Respondent contained in his telephone conversation with Shannon that substantiate his position that the sexual encounter was consensual,2 the following excerpts establish that Respondent did what he thought Shannon wanted him to do, not what she consented for him to do: Shannon: I guess I just need to understand why you felt the need to touch me that way. Respondent: I find, to be perfectly honest, I thought you had the need for it, believe me it's nothing I wanted, it's nothing I ever thought about, it's not something I consider to be normal thing between a father and a daughter. Shannon: I mean if I had the need to have that touch, why did it have to come from you, I mean - Respondent: It's something I thought you asked for, or it's something you wanted, believe me it's not something I want to do, it's not something I thought about, something that I looked forward to or thought about afterwards as being something good. Do you think you've had sleepless night over it, I had from that day forward. It's bothered me, it's upset me, it's bothered me a lot since then. I never would have believed that I could have done that , all I've ever tried to be is what you needed at the time. Obviously what you needed or what I thought you needed wasn't what you think you need now. Whether it was or it wasn't then, I really can't tell you. I, from what you said, from what you did, from the way you acted, felt, truly believed that's what you wanted and what you felt you needed. . . . The conflict in the testimony is resolved by finding that while she did not physically resist the sexual encounter, she did not implicitly or explicitly consent to the sexual encounter. Detective Cox turned over the results of her investigation to the State Attorney's office, who prosecuted Respondent on felony charges of sexual battery and on misdemeanor charges of committing Unnatural or Lascivious Acts. Based on the sexual encounter of January 12, 1994, Respondent was convicted of five misdemeanor counts of committing Unnatural or Lascivious Acts. He was acquitted of the felony sexual battery charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of failing to maintain good moral character; and revokes his certification as a Law Enforcement Officer and Instructor (Certificate Number 124699). DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of May, 1999
The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
