The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
Findings Of Fact At all times relevant hereto, respondent, Floyd H. Cash, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-7376 on January 22, 1973. When the events herein occurred, Cash was employed as a police officer for the City of Eustis in Lake County, Florida, holding the rank of Patrol Sergeant. On the evening of July 26, 1980 respondent was on patrol duty working the seven p.m. to seven a.m. night shift. He had worked this shift for the prior three and one-half years. With Cash were two junior officers under his supervision, Officers Hicks and Brannen. With driving through a public park known as Carver Park, Cash observed a fifteen year old female engaging in sexual intercourse with an adult male. This was not unusual for Cash had run across between fifty and one-hundred similar situations in the past. However, on this occasion, he approached the two individuals and told them they were subject to arrest for their conduct, but he would not arrest them if they got back on the ground and completed the act of sexual intercourse. Fearing arrest, the two unwillingly attempted to complete the act but the male had difficulty maintaining an erection under the circumstances. After observing the couple from a few feet away for about thirty seconds, Cash, Hicks and Brannen departed the premises. During the above incident there was no force or profanity used by respondent, and he did not touch his weapon. Neither the male or female was arrested. Even so, the female suffered embarrassment and mental stress. For his actions Cash received an official letter of reprimand from the Chief of Police on September 30, 1980 for conduct unbecoming an officer. However, he continued to be employed by the Eustis Police Department until 1984. That year an unrelated shooting by a police officer took place prompting a review of police records by a newspaper reporter. The Carver Park incident was uncovered and received widespread media coverage in Central Florida. As a result Cash voluntarily resigned from the department in late 1984. He has not been employed as a law enforcement officer since that time. The filing of the administrative complaint herein followed in 1985. Cash openly and candidly admitted the above events occurred. He appeared to be truly sorry for the incident. He blamed it on job stress and burnout from working a 12-hour night shift for three and one-half years, and an error in judgment that one evening. Other than this lone incident, he has an outstanding law enforcement record, including an award for being the outstanding young law enforcement officer of the year in Eustis in 1983. His reputation within the community as a conscientious and dedicated law enforcement officer was attested to by various supporting witnesses and corroborating letters. It was also shown that he is active in various civic and church related activities in the community. Cash desires to return to work as a law enforcement officer, his- lifelong profession. Indeed, he has been considered for other jobs, including one in Kansas, his native state, but he cannot be employed while decertification proceedings remain pending.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the charges in the administrative complaint, and that his law enforcement certification be suspended for a two year period effective January 1, 1985, with reinstatement thereafter. DONE and ORDERED this 17th day of September 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 17th day of September, 1986.
Findings Of Fact Respondent was born on February 4, 1957. He attended the Orlando Police Academy from March to June, 1980. Academically, he ranked eighth among the 47 recruits. He received the Mayor's Award for overall performance. In 1980, after graduating from the Orlando Police Academy, Respondent joined the Orlando Police Department. He completed his field training without incident and then was assigned to patrol duty. After about six months, Respondent, who was already serving as an instructor at the Orlando Police Department, was requested to be an assistant squad leader. An assistant squad leader performs all of the duties of the sergeant when the sergeant is absent. After about six months as an assistant squad leader, a major asked Respondent to become field training coordinator in the training section. After a year on this assignment, Respondent was promoted to sergeant and then spent another year on the road as a patrol sergeant. At this point, the major in charge of the field operations bureau of the patrol division, asked Respondent to become his administrative assistant. Respondent served two majors a total of about a year in this position. Respondent was on track toward entering management in the police department. After a year as an administrative assistant, Respondent was assigned to the criminal investigation division where he was in charge of the youth section. This was Respondent's position when he left the Orlando Police Department in the middle of 1986. In early 1985, Respondent met Donna Jackson while he was working off- duty. At this time, Respondent and his wife had been separated since late 1983 or early 1984. After the initial meeting and before any additional encounters, Respondent ran a background check on Ms. Jackson and found that she had been on probation about three years earlier for possession of a controlled substance. When Respondent informed Ms. Jackson that her background precluded any relationship due to his employment, she began crying and told him that she had been trying to put her life back in order. That evening, Respondent and Ms. Jackson commenced an intimate relationship. A few months into the relationship, Respondent learned that Ms. Jackson had been misleading him and was not trying to get her life back together. By August or September, 1985, the relationship began to deteriorate. Ms. Jackson began to consume alcohol heavily and having male visitors late at night. Respondent and Ms. Jackson began to fight. The domestic disputes occasionally involved some physical contact, but the contact was insubstantial. One evening, Respondent and Ms. Jackson had gone to a nightclub in Seminole County where they met a woman who invited them to a party at her residence. As they began to leave the parking lot of the nightclub, Ms. Jackson and the woman lit up a marijuana cigarette. Respondent immediately objected and insisted that he and Ms. Jackson go home, which they did. However, Respondent, who lacked the power to arrest Ms. Jackson and the woman because it was a misdemeanor outside of his jurisdiction, did not report the incident to the Seminole County Sheriff's Office. At this point, Respondent learned from Ms. Jackson's mother the severity of her past drug problems. Respondent broke off the relationship at this point, expressing a desire to remain friends only. By April, 1986, Respondent had not seen Ms. Jackson for a couple of months. Ms. Jackson's mother telephoned and told him that Ms. Jackson had taken a turn for the worse and had lost her apartment. Ms. Jackson, who was abusing drugs heavily again, and her young daughter were living on the streets. Ms. Jackson's mother begged Respondent to help them. At about this time, Ms. Jackson had been arrested in Orlando for driving without a license. She had asked that one of the officers contact Respondent. When he spoke with Ms. Jackson, Respondent assured her that he would try to help her as a friend. Released before her court appearance, Ms. Jackson failed to appear in court. Having spoken with Ms. Jackson's probation officer about the possibility of admitting her into a rehabilitation program, Respondent informed Ms. Jackson that he would arrest her if he saw her driving because he knew she no longer had a license. Respondent and the probation officer thought that such an arrest might help them find a place for Ms. Jackson in a program. Respondent later saw her driving an automobile, arrested her, and contacted her probation officer about placing her in a program. However, she bonded out, of jail before they could do anything. Shortly after Ms. Jackson was released from jail, the probation officer caused an arrest warrant to be issued for Ms. Jackson for violation of the conditions of her probation. Again, the intent was to use this means to find her a place in a rehabilitation program. The morning that the violation-of probation warrant was issued, which was on or about September 23, 1986, Ms. Jackson's mother telephoned Respondent and told him that she knew where Ms. Jackson was. At that point, the probation officer informed Respondent that a facility had a bed available for Ms. Jackson if they could detain her involuntarily. Respondent immediately found Ms. Jackson and arrested her. A minor scuffle occurred between Respondent and a female companion of Ms. Jackson, and Respondent soiled and tore his suit. Respondent then began to transport Ms. Jackson in an unmarked vehicle to the booking department. After learning that they did not yet have the violation-of-probation warrant, Respondent pulled the car over and he and Ms. Jackson began to talk about why she had refused his help. Ms. Jackson then asked if Respondent would take her to see her mother before taking her to jail. Although they were near the booking department at the time and Ms. Jackson's parents lived 5-10 miles away, Respondent agreed to take her to see her mother before going to jail. While at the parents' home, Respondent, who is a careful dresser, noticed for the first time the condition of his suit as a result of the earlier scuffle. When they left the parents' home, Respondent decided to drop by his apartment in order to change his clothes before taking her in for booking. While at the apartment with Ms. Jackson, Respondent was unable to resist her entreaties to have sex with her one more time. Following sex, he took her to the booking department where she was processed on the violation-of- probation warrant. Upset that Respondent had arrested her and refused to let her go, on October 9, 1986, Ms. Jackson falsely accused Respondent of raping her when they had intercourse in his apartment on the day of her arrest. Respondent cooperated fully with the internal investigation and candidly answered all questions asked of him. He resigned from the Orlando Police Department at that time. Shortly after this incident, Respondent began to see his estranged wife again and, about two or three months later, they were reconciled. Until Ms. Jackson's false charges were resolved, Respondent worked as a salesman for Cablevision of Central Florida where he quickly emerged as one of the top three sales representatives. He also underwent extensive counselling with his pastor at church and other ministers. Several of the ministers testified at the hearing as to Respondent's good moral character, notwithstanding the obvious mistakes he made with respect to his relationship with Ms. Jackson. The state attorney declined to prosecute the case and the charges were dropped in June, 1987 Respondent immediately began applying to other police departments for a position as an officer. After several unsuccessful attempts, he finally was offered an entry-level officer's position with the Titusville Police Department. Although he had made about $37,000 during the past ten months as a salesman, he agreed to an $18,000 annual salary with the Titusville Police Department because of his love for law enforcement. Respondent is currently assigned to the tactical unit of the Titusville Police Department. His record has been exemplary. His performance under pressure, including on one occasion the fatal shooting of another officer, has been outstanding, and he has assumed a significant leadership role among the officers in the department. Numerous law enforcement officers testified on behalf of Respondent. Several testified that domestic disputes of the type in this case are not uncommon among law enforcement officers. Several testified that they would have done nothing under the circumstances had they observed Ms. Jackson and the other woman smoking marijuana outside of their jurisdiction. The testimony of three witness has been given considerable weight. Ms. Jackson's parents testified to her manipulativeness and, more importantly, the positive effect that Respondent had had upon her. Regrettably, they testified that she has not recovered from her battle with drug abuse and they were, at the time of the hearing, unaware of where she was living. Titusville Police Chief Charles Ball, who has been in law enforcement for over 20 years and chief of the department for 10 years, testified that the revocation of Respondent's certificate would represent a loss to the Titusville Police Department and law enforcement generally. Chief Ball testified that Respondent is of good moral character, even considering the poor judgment described above.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 9th day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Stewart Cohen, Esq. Pilacek & Cohen 1516 East Hillcrest Street Suite 204 Orlando, FL 32803 Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin, Executive Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esq. General Counsel Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Respondent misused her position as an Orlando city commissioner by attempting, on May 6, 2006, to influence how the Orlando Police Department (the police department) handled a routine traffic stop involving her son in violation of Subsection 112.313(6), Florida Statutes (2005).1
Findings Of Fact Petitioner is the state agency responsible for regulating compliance with the Code of Ethics applicable to public officers and employees pursuant to Chapter 112, Part III. At all times material to this proceeding, Respondent has been a public officer, a commissioner of the City of Orlando, Florida. Respondent is African-American, as are her two sons Mr. Sean Lynum and Mr. Juan Lynum. At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo was on duty for the police department patrolling the Paramore neighborhood in Orlando less than a mile from Rock Lake Drive. Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable headlight on the vehicle Mr. Lynum was driving.2 Mr. Lynum was driving Respondent’s vehicle home from a fraternity party to Respondent’s residence on Rock Lake Drive in Orlando, Florida. Mr. Lynum shared the residence with Respondent at the time. Neither Respondent nor Mr. Lynum were aware that a headlight on the vehicle was not working. Mr. Lynum telephoned Respondent from his cellular telephone. He informed Respondent that he was being stopped by a Caucasian police officer and expressed his concern that he was the victim of racial profiling. Respondent telephoned then Chief Michael McCoy of the police department at his home and expressed her concern that Mr. Lynum was the victim of racial profiling. Chief McCoy said he would telephone the watch commander on duty and have him deal with the allegation of racial profiling. Respondent then telephoned Officer Roderick Johnson, the police liaison officer assigned to Respondent and an officer first class in the police department. Officer Johnson was engaged in approved off-duty employment to provide security at a local night club. Respondent had time to disclose the general location of the traffic stop and her concern that her son was being racially profiled when she terminated the conversation to take a return telephone call from Chief McCoy. Respondent clearly intended to influence how the police department handled the traffic stop. Respondent did not expressly request intervention in the traffic stop by Chief McCoy or Officer Johnson, but Respondent admits that the purpose of her action was to alert both men to possible racial profiling and to monitor the traffic stop. Respondent used her official position to influence the traffic stop of her son. Both Chief McCoy and Officer Johnson interpreted a telephone call from a city commissioner at approximately 1:00 a.m. in the morning to be a request for action in her official duty as a commissioner.3 The testimony of Chief McCoy is illustrative. Q. Chief, when you received that call from Commissioner Lynum, did you feel you needed to act based on the phone call? A. She’s a Commissioner, yes. Act then, yes. . . . Q. . . . When you answered that she was a Commissioner, what did you mean by that? How did that impact you? A. I used to make the analogy that our Commissioners were our board of directors, because I spent some time in the private sector, and you know, they drive the direction of the city, police department being part of that. So they’re a Commissioner. They’re elected by the people, so, yeah, pay attention to a Commissioner call, as I would a Mayor call. Q. So when you responded to her, were you responding as a friend or as a commissioner? A. As a commissioner. Transcript (TR) at 258-259 and 277. Officer Johnson took it upon himself to call Officer Ochiuzzo, by radio and then by cell phone, during the traffic stop. A call from a city commissioner at approximately 1:00 a.m. motivated Officer Johnson to take action. Officer Ochiuzzo terminated the traffic stop after discussing the matter with Officer Johnson and never spoke to the watch commander on duty during the traffic stop. Officer Ochiuzzo had intended to issue a traffic summons to Mr. Lynum for an inoperable headlight, no registration, and no proof of car insurance. The benefit sought by Respondent in her attempt to influence how the police department handled the traffic stop involving her son was not to prevent her son from receiving a traffic citation. When Mr. Lynum arrived at Respondent’s home after the traffic stop, Respondent discovered that the headlight on her vehicle was inoperable. She telephoned Officer Johnson and asked him to ensure that a traffic citation was forwarded to her. The benefit sought by Respondent was to prevent racial profiling during an ongoing traffic stop by complaining directly to the chief. That was a special benefit or privilege available to Respondent that was not available to a member of the public through the police department’s bias free policing policy. The police department’s bias free policing policy was drafted by legal counsel for the department and was adopted in June 15, 2004. The policy required a member of the public who alleged racial profiling to file a written complaint on a form provided by the department and required the department to investigate the alleged profiling. Respondent was personally familiar with the police department’s bias free policing policy. Respondent was very active in the community, supported the bias free policing policy, and assisted her constituents in processing profiling complaints. Mr. Lynum later filed a complaint of racial profiling pursuant to the bias free policing policy. The police department investigation exonerated Officer Ochiuzzo. Exoneration means the department found Officer Ochiuzzo to be innocent of the charges in the complaint. Exoneration differs from “not sustained” in that the latter means only that the proof is insufficient to support a finding of guilt. When Respondent telephoned Chief McCoy and her liaison officer at approximately 1:00 a.m. on the morning of May 6, 2006, Respondent acted with wrongful intent for the purpose of benefiting another person from an act or omission during an active traffic stop. Respondent acted in a manner that was inconsistent with her public duties. Respondent testified that she called Chief McCoy and Officer Johnson, not in her capacity as commissioner, but as a mother fearful for the safety of her son. Mr. Lynum testified that he sought his mother’s help out concern for his safety at the hands of a Caucasian police officer. The fact-finder finds the testimony of both witnesses to be less than credible and persuasive. Mr. Lynum was on his cell phone when Officer Ochiuzzo approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring an investigating officer risked antagonizing the officer and are inconsistent with a person in fear of physical harm. The testimony of Officer Ochiuzzo is illustrative. Q. So what did you do next? A. I exited my patrol vehicle and I approached Mr. Lynum’s car. . . . Q. Okay. What happened next? A. He was on his cell phone when I approached the window and the window was up, and I told him I was conducting a traffic stop and that I needed his license and registration, proof of insurance, and he didn’t respond. Q. So at the initial approach of the vehicle, did you make any other gestures to get the driver’s attention or did you solely use voice commands? A. Voice commands combined with my patrol car lights and chirping of the siren. Q. So when you made these initial voice commands, did the driver respond? A. No. Q. So what did you do next to get his attention? A. . . . I took my flashlight and I tapped the window to get the driver’s attention and instructed him again that I was conducting a traffic stop and I needed a license, registration, proof of insurance. Q. And at that point did Mr. Lynum engage in the traffic stop? A. No. Q. What did he do? A. He ignored it once again. He was on the cell phone. And so I pulled the door open and I told him that I was conducting a traffic stop. I needed his license, registration, proof of insurance. TR at 35-36. Officer Ochiuzzo returned to his patrol vehicle and began writing a uniform traffic citation when he was interrupted by the radio inquiry, which concluded by cell phone, from the liaison officer for Respondent. Officer Johnson informed Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s liaison officer and that Officer Ochiuzzo had stopped the commissioner’s son. After the conversation, Officer Ochiuzzo terminated the traffic stop. When Officer Ochiuzzo pointed patrol vehicle lights into the rearview mirror of the vehicle of Mr. Lynum, shined a flashlight beam into the vehicle, and kept his free hand on top of his holstered pistol, it was not a threat to Mr. Lynum. It was standard procedure for traffic stops at that hour. When Officer Ochiuzzo was yelling at Mr. Lynum, it was because Mr. Lynum had ignored the officer’s earlier attempts to redirect Mr. Lynum from the cell phone conversation and had failed to lower the window so the officer would not have been required to yell to be heard. Mr. Lynum is an attorney who is familiar with police procedures during traffic stops through instructions from his father who was a law enforcement officer from 1969 through 1987 and ended his career as the chief of the Wildwood Police Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s brother, is a former officer in the same police department as Officer Ochiuzzo. Respondent is very active in the community and familiar with police procedure. A common safety precaution for a person who suspects he or she is a victim of racial profiling during a traffic stop is to ensure the site of the stop is well lighted and that the person is in contact by cell phone with a person who can be a witness. Mr. Lynum followed both precautions. He stopped in a well-lit area, and he was on his cell phone. Complaints of racial profiling in the area had declined from 23 the year before Chief McCoy became the chief of the department to a consistent annual range of six to eight. Racial profiling was not an issue in the area until after Mr. Lynum made his complaint. The testimony of Chief McCoy is illustrative. This, after the fact, became quite a community event or issue, which sparked a lot of accusations of racial profiling. Our policy had been in effect as long as it’s been in effect. The year before I was Chief, there was like 23 total racial profiling complaints made. The year I became Chief that dropped to like six or eight and that was-–that number was pretty consistent. Even after we had this community event issue, they still never got over 10, total. The key is that if you have a complaint, you need to follow up on it. If people feel like they were stopped simply because they were-–of their race, then you need to do the form and do it right and the officers know that-–or knew that. Q. So, really, it did not become a community issue until after Commissioner Lynum’s son was stopped, racial profiling? A. That would definitely be my perspective . . . . it was not an issue. TR at 278-279.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order and public report finding that Respondent violated Subsection 112.313(6) and publicly censuring and reprimanding Respondent. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd of February, 2009.
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
The Issue At issue is whether there is just cause for Petitioner Broward County School Board (Petitioner or School Board) to terminate the employment of Respondent, Alsavion Smith's (Respondent) by reason of immorality and moral turpitude as alleged in the Administrative Complaint dated August 24, 2005 (Complaint).
Findings Of Fact Petitioner is the entity constitutionally authorized to operate, control, and supervise the Broward County public school system. Respondent was, at relevant times, employed by Petitioner as a teacher pursuant to an annual contract. During the 2004-2005 school year he was assigned to Plantation Middle School. The events giving rise to this case occurred on March 10, 2005. Narcotics officers (officers) employed by the Broward County, Florida Sheriff's Office (BSO) had received information that a teacher who lived on the third floor of an apartment complex located at 1442 Avon Lane in north Fort Lauderdale (apartment complex), was in possession of marijuana and also selling marijuana out of his apartment. Possession and sale of marijuana is illegal in Florida. Upon investigation, BSO officers learned that Respondent was a teacher and lived on the third floor in Unit 638 (the apartment) at the apartment complex. As the investigation went forward, the officers knocked on the door of the apartment. At that time, the odor of marijuana was sufficiently strong that it could be smelled in the hallway outside the apartment. The knock was answered by an individual identified in the record as Anderson Carrington (Carrington). Carrington opened the door and admitted the officers. The apartment's exterior door, through which Carrington admitted the officers, opened directly on to the living room/dining area of the apartment. The dining room table was located in this area and was immediately visible to anyone entering. An individual identified in the record as Vveldress Ingram (Ingram) was seated at the dining room table. Approximately two pounds of marijuana was located on the dining room table, together with drug paraphernalia. The paraphernalia included scales and "baggies." Coupled with the amount of marijuana present, such paraphernalia suggested that marijuana was being sold out of the apartment. The officers thereupon arrested Carrington and Ingram, and undertook to secure the premises to assure the safety of the officers and other individuals in or near the premises. The officers summoned back-up, and shortly thereafter, additional BSO officers and a supervisor arrived on the scene, all in marked patrol cars. At the precise moment the officers were admitted to the apartment, Respondent was in his bedroom. The bedroom was immediately adjacent to the living room/dining area. Respondent soon emerged from the bedroom and acknowledged to the officers that the apartment was leased to him. He further informed the officers that he lived there with three individuals, whom he variously characterized as "roommates" or "guests." These individuals are Carrington, Roderick Simeon, and his younger brother James Simeon. James Simeon was known by Respondent to be a juvenile. Respondent further acknowledged that he was aware that Carrington and the juvenile had been selling marijuana out of his apartment; that a delivery of marijuana for resale from the apartment had been made that day; and that approximately seven grams of marijuana were in his dresser drawer in his bedroom and was for his personal use. Respondent was thereupon arrested, and asked to sign a consent form giving BSO permission to search the apartment. Respondent voluntarily did so. The events surrounding Respondent's arrest, including Respondent's removal from the apartment complex in a BSO cruiser, were witnessed by members of the public as a crowd had gathered in the parking lot of the apartment complex to watch, apparently drawn by the presence of first one, and thereafter at least two more BSO vehicles. Word of the arrest, including the grounds for the arrest, spread quickly through the neighborhood, and some individuals who came to watch became unruly. At least one such person was arrested. At all relevant times, Respondent was treated in a professional and courteous manner by BSO officers. No credible, persuasive evidence to the contrary was provided. Respondent offered only his own testimony in support of his claim to have been coerced, threatened, or mistreated by BSO officers. Respondent's testimony is not credited. Based upon the entire record; which includes prior inconsistent statements under oath, as well as Respondent's demeanor while testifying, including his nervousness on direct examination and his evasiveness on cross-examination, it is specifically determined that Respondent was not threatened or coerced by BSO officers on March 10, 2005. It is further determined that Respondent did in fact make the above-noted admissions to the officers. Four officers testified from personal knowledge concerning events relevant to this case. The testimony provided by the officers is, in all material respects, persuasive and is credited by the factfinder. On March 14, 2005, Respondent delivered to Petitioner's duly-designated representative a so-called Self Reporting Form. Pursuant to Petitioner's policy, a Self Reporting Form must be submitted promptly by any teaching professional who has been arrested. In his Self Reporting Form, Respondent made no reference to threats, coercion, or other mistreatment by the BSO officers, giving rise to an inference that Respondent suffered no threats, coercion, or other mistreatment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law it is recommended that Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2006. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues for determination are: (1) whether Respondent, Carolyn Ford, as a member of the Quincy City Commission, violated Section 112.3135(2)(a), Florida Statutes, by advocating the appointment of her son for a position with the Quincy Police Department; (2) whether Respondent violated Section 112.313(6), Florida Statutes, by using her official position as a member of the Quincy City Commission to attempt to obtain a job for her son with the Quincy Police Department; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, Carolyn Ford (Respondent), currently serves as a city commissioner for the City of Quincy, Florida, having first been elected to that office on March 31, 1998. As a city commissioner, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City Charter (Quincy City Charter or Charter) give the Quincy City Commission (City Commission or Commission) the authority to appoint and remove the city manager, the city attorney, and the city clerk. Under Section 3.04 of the Quincy City Charter, the city manager is given the exclusive authority to employ or appoint certain employees and administrative officers for the City of Quincy, including the police chief. Moreover, such employees or administrative officers serve at the pleasure of the city manager, who may, "when he deems necessary for the good of the services . . . suspend in writing, with or without pay, or remove any employee under his jurisdiction " Section 204(b) of the Quincy City Charter expressly prohibits the Commission or its members from dictating the appointment or removal of any city employee or administrative officer whom the city manager or any of his subordinates are empowered to appoint. Nonetheless, that provision of the Charter permits city commissioners, while in open or executive session, to "express their views and fully and freely discuss with the city manager anything pertaining to the appointment and removal of such officers and employees." By expressing their views to the city manager regarding the appointment or removal of city officials and employees, city commissioners may influence the hiring and firing of such officials or employees. Shortly before or after the March 1998 election, Roger Griswald, police chief for the City of Quincy, submitted his letter of resignation to City Manager Kenneth Cowen. Thereafter, City Manager Cowen appointed Robert Barkley (Barkley), who had served as Griswald's assistant for four years, as interim police chief. Barkley served in this position for about a month. Sometime during the week of May 17, 1998, City Manager Cowen called Barkley and asked whether he would accept the appointment as permanent police chief. On May 20, 1998, after City Manager Cowen talked to Barkley about being appointed permanent police chief, Barkley telephoned then Quincy City Commissioner Glenn Russ (Commissioner Russ or Russ). At Barkley's request, Commissioner Russ went to the Quincy Police Department (police department) to meet with Barkley. During the course of the meeting, it became apparent that Barkley had called the meeting in order to seek and gain Commissioner Russ' support of Barkley's appointment as permanent police chief for the police department. Prior to Barkley's calling Commissioner Russ, he was well aware that Commissioner Russ was dissatisfied with the police department because Russ had publicly expressed his views. Since 1995, Russ had been an outspoken critic of the police department, including Barkley. Russ' criticism stemmed from the police department's refusal to launch an independent investigation of a 1995 fatal car accident that involved a Quincy police officer and resulted in the death of two or three people, one of whom was Russ' cousin. During the May 20, 1998, meeting, Barkley disclosed to Commissioner Russ that City Manager Cowen wanted to appoint Barkley as permanent police chief. Barkley then told Commissioner Russ that he wanted to "bury the hatchet" and have Russ work with him. However, Commissioner Russ rejected both offers and was adamant that under no circumstances was he willing to "bury the hatchet." At some point during the May 20, 1998, meeting between Barkley and Russ, Auburn Ford, Jr. (Ford), the adult son of Respondent, stopped by the police department after he saw his friend Russ' car parked there. Barkley invited Ford to come into his office. Once Ford was in the office, Barkley asked him what it would take for "us to get along," to which Ford replied, "Nothing." Barkley then told Ford that City Manager Cowen was going to name Barkley police chief, and that there could be a "second-in-command" job for Ford. This idea was nixed by Ford who stated emphatically that he wanted to be police chief. Barkley then suggested that he should be police chief because he had more experience in law enforcement than Ford. However, Ford's position remained unchanged and he insisted that he wanted to be police chief, not second-in-command to Barkley. Barkley later called Anthony Powell to the May 20, 1998, meeting with Commissioner Russ and Ford. Barkley hoped to persuade Powell to support his appointment as the permanent police chief. Powell's support was important because he was considered by many in the community to be the frontrunner for the Quincy city manager position after City Manager Cowen was removed from office. Once Powell arrived at the May 20, 1998, meeting, in an effort to put their past disputes behind them, Barkley expressed his desire to "bury the hatchet." In response, Powell stated only that Russ was his friend and that he did not want to get in the middle of any conflict between Russ and Barkley. Further, Powell stated that he only wanted to be a good employee. Some time ago, when both Barkley and Powell were city employees, Barkley was Powell's supervisor. The relationship between Barkley and Powell became strained after, based on Barkley's recommendation, Powell was reprimanded and suspended for a week without pay. The May 20, 1998, meeting initiated by Barkley and held in his office, failed to gain for him the support he wanted. Neither Russ, Powell, nor Ford responded positively to Barkley's overtures. Russ told Barkley, "it was war" between them and he would not "bury the hatchet." Powell, though not as outspoken as Russ, never agreed to support Barkley as police chief. Finally, Ford never agreed to serve as second-in-command but rather insisted that he wanted to be police chief for the City of Quincy. Russ, Ford, and Powell were friends who sometimes socialized together. It was at a social attended by Russ, Ford, and Powell in January 1998 that the idea of Ford's becoming police chief was first discussed. Respondent was not present at this event. On or about May 28, 1998, Cowen advised Barkley that he was going to appoint him police chief and that the appointment would be announced at an official ceremony at City Hall the following day, Friday, May 29, 1998, at 11:00 a.m. Both Cowen and Barkley knew that such an appointment might be short-lived because the City Commission had recently directed the attorney for the city to prepare a resolution for then City Manager Cowen's removal. Nonetheless, Cowen and Barkley were optimistic that Barkley's appointment would not be immediately jeopardized because of their belief that Barkley had community support. On the evening of May 28, 1998, around 9:00 p.m., Barkley was paged by his wife and given Ford's telephone number to call. Ford had called Barkley after learning that Barkley would be appointed police chief the next day. Later that evening, Barkley returned Ford's call. Ford asked Barkley if he was going to accept the position of police chief. In response Barkley indicated that he was going to accept the position. Ford then told Barkley that he should not accept the position because "You know what's going to happen next Tuesday night," referring to the resolution which would be presented at the City Commission meeting Tuesday night to replace Cowen as city manager. Barkley was not sure what Ford meant by his reference that "something would happen" by next Tuesday. Barkley was unsure whether Ford was threatening to harm Barkley and/or his family or whether Ford was referring to the upcoming City Commission meeting. As a result of his conversation with Ford, Barkley became concerned for his safety and that of his family. After the telephone conversation with Ford, Barkley called his friend, then Quincy Police Officer James Corder and expressed his concern about Ford's call. Officer Corder then contacted Captain Jim Godwin of the Gadsden County Sheriff's Office and reported the incident. Later that night, Barkley told his wife and Dr. Harold Henderson, Superintendent of Gadsden County Public Schools and Barkley's best friend, about the telephone conversation with Ford. At about 8:00 a.m. the next morning, Friday, May 29, 1998, Ford was told that Barkley had made a report to the Gadsden County Sheriff's Office, alleging that Ford had threatened him. In an effort to clear up Barkley's misperception of Ford's comments, Ford immediately called Dr. Henderson and explained that he had not threatened Barkley. Ford then asked Dr. Henderson to talk to Barkley about the situation and convey that the comments were not a threat. Dr. Henderson called Barkley that same morning but was unable to convince him that Ford was not a threat. Later that morning, at about 11:00 a.m., the scheduled ceremony was held at Quincy City Hall for Barkley's swearing in as police chief. This event, attended by a number of community leaders as well as Barkley's family and friends, was planned to gather support for Barkley to remain in the police chief position after the new city manager was appointed. It was anticipated that the new city manager would be appointed within two weeks. At the conclusion of the ceremony, Ford went to Barkley in a non-threatening manner, congratulated Barkley and indicated that he wanted to work with him. Ford also told Barkley that they needed to talk and settle the matter. Thereafter, a brief verbal confrontation ensued between Ford and Officer Corder, who was near Barkley. At that time, there were a number of officers around Barkley who knew about the alleged threat and, consequently, were on heightened alert. As Ford approached Barkley, some of the officers moved toward Ford in a threatening manner. Thereafter, in an effort to prevent the situation from escalating, a police officer escorted Ford from the building. After Ford was escorted from City Hall, he called his mother, Respondent, and told her about the alleged threat and the confrontation with the police officers after the swearing-in ceremony. In describing the incident to Respondent, Ford stated that the police officers had "encircled him and . . . had their hands on their guns." After the conversation with Ford, Respondent became concerned for her son's safety. She believed that the situation involving her son's alleged threat was simply a misunderstanding and one that needed to be resolved immediately to prevent the matter from becoming a more serious problem. In an effort to quell any criminal repercussions against her son which could have resulted from Barkley's allegation and out of concern for his safety, Respondent requested the assistance of Dr. Henderson to help to resolve the misunderstanding between Barkley and her son. On May 29, 1998, after learning about Ford's alleged threat and the encounter with the police officers, Respondent called Dr. Henderson. Respondent explained the situation regarding the alleged threat and requested that Dr. Henderson meet with her and Barkley in order to resolve the misunderstanding. Because Dr. Henderson considered both Respondent and Barkley friends, he agreed to arrange and facilitate such a meeting. When Respondent arrived at Dr. Henderson's office the afternoon of May 29, 1998, she asked that Dr. Henderson "show some leadership" and help resolve the situation between her son, Ford, and Barkley. During the first part of the meeting, when only Respondent and Dr. Henderson were present, the focus of the meeting was the alleged threat. Respondent and Dr. Henderson discussed the alleged threat and agreed that the matter was getting "out-of-hand" and had escalated to the point where something had to be done. Further, Respondent indicated that she did not believe her son would make such a threat and that the whole incident was a misunderstanding. Dr. Henderson knew Ford and concurred with Respondent's opinion that Ford would not make such a threat. However, Dr. Henderson had been unable to convince Barkley of this in their previous two telephone conversations regarding the matter. At some point during the May 29, 1998, meeting, Dr. Henderson called Barkley and Respondent called Ford to join the meeting. Barkley arrived at the meeting before Ford. When Barkley arrived, Respondent discussed her concerns relative to the alleged threat. Respondent's comments to Barkley focused on the alleged threat. In fact, she said the same things to Barkley that she had said earlier to Dr. Henderson. That is, she did not believe Auburn Ford would make such a threat, the incident was simply a misunderstanding, and the matter needed to be resolved. This part of the conversation lasted about 15 or 20 minutes and concluded after Barkley explained that it was just a misunderstanding and that the matter had been "taken care of." Following the exchange regarding the alleged threat, with only Respondent, Barkley, and Dr. Henderson present, there was a discussion of problems with the police department. Respondent indicated her general dissatisfaction with the police department and her belief that the police department was "out of control." Respondent stated that she thought her son could be a "liaison" between the police and the Commission to help bridge the gap and solve some the department's "perception problems." However, in making these very general comments, Respondent never mentioned Ford's getting a job with the police department. After the aforementioned discussion, Ford arrived at the meeting in Dr. Henderson's office. Once Ford arrived, Respondent wanted Barkley and Ford to discuss and resolve the issue relative to the alleged threat. With Dr. Henderson serving as facilitator, Barkley and Ford discussed the alleged threat. Ford explained that Barkley had simply misinterpreted his comment. Once the issue of the alleged threat was resolved, the discussion between Barkley and Ford shifted to the possibility of Ford's working for Barkley within the police department. Prior to the May 29, 1998, meeting, Dr. Henderson was aware that Ford wanted to be police chief and, as facilitator, thought this matter was one that could be worked out amicably between Barkley and Ford. To this end, as part of this meeting, Barkley and Ford, with Dr. Henderson as facilitator, discussed Ford's working in the police department under Barkley. At some point during the discussion concerning the possibility of Ford's working for the police department, Ford stated that he had the support of the city commissioners. Because the City Commission had five members, Ford's statement implied that he had the support of three of the commissioners. Respondent was not involved in this part of this discussion and there is no indication that Respondent heard the comment. Respondent was in Dr. Henderson's office during the meeting between Barkley, Ford, and Henderson but was on the other side of the very large office looking at a television program. Respondent believed that the misunderstanding could be resolved if Dr. Henderson facilitated a discussion between Barkley and Ford. Therefore, Respondent did not participate nor was she involved in the discussions between Barkley and Ford, including the discussion about Barkley's bringing Ford on board to work with the police department. The meeting at Dr. Henderson's office ended after Agent Brinson of the Florida Department of Law Enforcement came by Dr. Henderson's office to interview Barkley and Ford about the alleged threat. When the meeting concluded, both Ford and Dr. Henderson had the impression that Barkley was going to hire or appoint Ford to a position with the police department, and the details would be worked out at a meeting the following Monday at 8:00 a.m. After the May 29, 1998, meeting, Barkley decided not to hire or appoint Ford. On Monday, May 31, 1998, Barkley called Dr. Henderson and indicated that he was not going to hire Ford. Dr. Henderson then told Barkley that he should call Respondent and tell her. Barkley complied with Dr. Henderson's request and called Respondent. When Barkley reached Respondent, he told her that he could not do "it" and hung up the phone. Four days after Barkley was appointed as permanent police chief of the Police department, City Manager Cowen was replaced by Anthony Powell. As city manager, Powell exercised his independent judgment to hire and retain those employees he felt best reflected his management style and who could best serve the interests of the City of Quincy. On June 9, 1998, a week after Powell was appointed city manager, he decided to replace Barkley. Two days later, Barkley was relieved from his responsibilities as police chief. The reason City Manager Powell decided to remove Barkley as police chief was that he disagreed with Barkley's management style and doubted his credibility. Prior to Barkley's separation from the police department, Respondent urged City Manager Powell to continue Barkley's employment with the city. However, notwithstanding Respondent's support of Barkley, Powell made it clear to Respondent that Barkley could not continue as police chief. On June 11, 1998, City Manager Powell appointed Rodney Moore to replace Barkley as Quincy's police chief. Ford applied for a position with the police department on June 19, 1998, three weeks after the May 29, 1998, meeting in Dr. Henderson's office. More than a month after it was filed, Ford's application had not been processed. On July 20, 1998, at approximately 1:40 p.m., Commissioner Russ telephoned Chief Moore's office. Commissioner Russ was agitated because his car had been vandalized on July 16, 1998, while it was parked in front of City Hall. The police officer called to the scene promised to have a written report prepared by the next day but had not done so. Commissioner Russ complained to Chief Moore that he had not received the incident report regarding the vandalism of his car. He also told Chief Moore that he (Moore) "had problems" because Ford should have been hired. After voicing his complaints, as if to explain his mood, Commissioner Russ told Chief Moore that he (Russ) had lost his job that day and had enough problems. Commissioner Russ ended the conversation by telling Chief Moore that he needed to "straighten it up" and "work it out." Later, on the afternoon of July 20, 1998, Commissioner Russ went to Respondent's office in Gretna as a volunteer to work on her office computers. While at Respondent's office, Commissioner Russ telephoned Chief Moore. Commissioner Russ still sounded very upset and during this conversation, again, complained about the police department's failure to timely process Ford's application for a reserved officer position with the police department. Commissioner Russ also told Chief Moore that he had problems because Ford had not been hired. Respondent was not in her office when Commissioner Russ was speaking on the telephone, and was unaware of the identity of the person to whom Russ was speaking. During his telephone conversation with Chief Moore, Russ was speaking very loudly and could be heard overheard by those in the area outside Respondent's office. Because Commissioner Russ' conduct was disruptive, Respondent went into her office and told Russ to leave. After Respondent told Russ to leave her office, he told Chief Moore to explain it to "her." Russ then either handed the telephone receiver to Respondent or put it on the desk. Once Respondent had the telephone receiver, Chief Moore continued giving the explanation regarding the reasons for the delay in processing Ford's application. The reason Chief Moore continued the explanation he was giving Russ was that he assumed Respondent was interested in the processing of her son's application. After listening to Chief Moore's explanation, Respondent expressed a concern about the manner in which the application was being processed. Respondent's specific concern appeared to be the length of time it took to process an application. However, Respondent made no attempt during this telephone conversation or any other time to influence Chief Moore's decision to hire her son. In fact, the credible testimony of Chief Moore was that Respondent "never mentioned anything about hiring him" and that Russ was the only person pushing Ford's employment. At no time during the May 29, 1998, meeting or anytime thereafter did Respondent participate in any discussion about Ford's working with the police department. In fact, although Ford had worked extensively in law enforcement, Respondent was never supportive of her son's desire to work in this area. At no time did Respondent threaten, coerce, or intimidate Barkley or anyone else about hiring her son, Ford, to work for the police department. Ford was never a paid employee of the police department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order and public report be entered finding that Respondent Carolyn Ford, did not violate Sections 112.3135(2)(a) and 112.313(6), Florida Statutes. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of April, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack L. McLean, Jr., Esquire McGuire, Woods, Battle & Booth, LLP 285 Peachtree Center Avenue, Northeast Marquis Two Tower, Suite 2200 Atlanta, Georgia 30303-1234 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Petitioner was the subject of an unlawful employment practice in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Katrina Morgan, is a female who was employed by Respondent as a probationary Correctional Officer at the Columbia County Sheriff’s Office. Petitioner first worked for the Columbia County Sheriff’s Office from January 2001, through April 1, 2001, as a Correctional Officer. At the time, Petitioner was aware that the Columbia County Sheriff’s Office had a policy that required a Correctional Officer to personally call his or her immediate supervisor at least one hour before the scheduled start of the shift if he or she is unable to report for duty. The policy requires the officer to personally call so that inquiry can be made into how sick he or she is and when the officer might return. The information is necessary so that appropriate numbers of staff can be scheduled and planned for. Unfortunately, Petitioner’s son was involved in a serious traffic accident that resulted in serious injuries to him. As a result of her son’s injuries, Petitioner had many days of absence from her employment. She frequently failed to notify her supervisor when she was unable to report for duty. Such failure violated the Columbia County Sheriff’s Office policy regarding notification in such circumstances. As a result of the policy violations by Petitioner, she received several written warnings from her shift supervisor, then Sergeant Donald Little. In addition to written warnings, Sergeant Little spoke with Petitioner on the telephone about the proper utilization of the Columbia County Sheriff’s Office call- in policy. Eventually, after several such absences, Lieutenant Johnson contacted Petitioner to tell her that he could not permit Petitioner to stay employed with the Columbia County Sheriff’s Office and offered her an opportunity to resign. Petitioner verbally resigned her position with the Sheriff’s Office on March 21, 2001, and later faxed her written resignation to the Sheriff’s Office on March 22, 2001. After she left Columbia County, Petitioner was employed by the Florida Department of Corrections where she had, also, been previously employed. She worked for a period of approximately five to six months with the Department of Corrections and decided to return to the Columbia County Sheriff’s Office because it would give her better working hours for her family needs. On April 28, 2003, Petitioner reapplied for employment as a Corrections Officer with the Columbia County Sheriff’s Office. Knowing her past performance would be an issue and that attendance was an important issue at the jail, Petitioner stated on her April 28. 2003, application as follows: Was forced to give up my position with the Columbia County Jail back in 2001. If given the opportunity I will do whatever it takes to be sure the Columbia County Jail can depend on me. I will make sure I will report to my shift on time, no matter what the circumstances are, I hope you will give me a second chance to prove you can count on me. In the process of reviewing Petitioner’s background summary the Columbia County Sheriff’s Office became aware of some serious areas of concern in her employment history. Specifically, that she had been terminated from the Department of Corrections (DOC) New River Correctional Institute for attendance problems, and that she had poor work performance and problems with calling in at S&S Food Store. This history caused an initial recommendation against rehiring Petitioner. However, the Columbia County Sheriff’s Office was experiencing a severe staff shortage and as a result was desperately in need of new Correctional Officer. Because of the shortage, Petitioner was offered employment with the Sheriff’s Office. Petitioner was sworn in by the Sheriff as a Correctional Officer on November 6, 2003, and given a second chance to prove she was dependable. At this ceremony, the Sheriff personally spoke with Petitioner about attendance issues and that she was being given a second chance. In response, Petitioner gave the Sheriff assurances that this time she would comply with policies. The Sheriff told Petitioner that any further attendance problems would be cause for termination. On November 7, 2003, Petitioner began working in the Respondent’s field training program under the direction of Field Training Officer Howard. Beginning on November 19, she was placed on the night shift and assigned Officer Siraq as her field training officer. The field training program uses daily observation reports (DORs) to evaluate new officers through the field training process. The program is a multi-week training program that trains a new officer while on the job. Eventually, the new officer will work all three shifts at the prison. On November 19, 2003, Officer Siraq was not at work due to illness. Therefore, Petitioner was assigned Officer Chad Sessions as her field training officer. Petitioner was working in the control room at the Columbia County Jail with Officer Sessions, who engaged in a series of very explicit phone calls in Petitioner’s presence. In his telephone conversations he made a number of sexually explict statements, including stating he was going to fuck the girl he was speaking about; that he was “the candy man” and that he was coming to have sex with the girl and that he would do so from behind. Petitioner told Officer Sessions several times that she did not want to hear the sexual comments, but he nonetheless continued in his conversation. Officer Sessions engaged in three such phone calls lasting about 20 minutes. After repeating that she did not wish to have to deal with these types of comments, Petitioner left the control room approximately four times so that she did not have to listen to Officer Sessions conversations. On the daily observation report completed by Officer Sessions for that date, Officer Sessions wrote that Petitioner had engaged in several phone calls and breaks and that she needed to improve on staying at her assigned post without as many distractions. Petitioner spoke to Officer Sessions about his comments on the Daily Observation Report and told him that she did not agree with his statements and refused to sign the document because of her disagreement with him. Officer Sessions took the DOR to Corporal Barcia and informed Barcia that Petitioner would not sign the agreement. He thereafter came back to Petitioner and told her that Barcia had ordered the Petitioner to sign the DOR. Petitioner signed the DOR, but did not put any comments on the DOR in the “Trainee’s Comments” Section regarding her disagreement with Officer Sessions or the reason she left her post in the control room. At the end of the shift on the morning of November 20, 2003, Petitioner drafted a memorandum to now Lieutenant Little requesting time off from work. Petitioner did not mention the incidents with Officer Sessions that had occurred on her shift. In the memorandum, Petitioner stated that she had spoken with Beverly Jackson during her swearing-in ceremony regarding specific days off, and that Ms. Jackson had approved the time off. Also, Petitioner spoke to Officer Howard about the incident on the morning after her shift that ended on November 20, 2003. Petitioner told Officer Howard about Officer Sessions’ remarks and the fact that she initially refused to sign the DOR and Corporal Barcia’s orders to sign the DOR. Officer Howard was concerned when Petitioner gave him this information and told her that he would speak with Lieutenant Little. Officer Howard contacted Lieutenant Little to report the information given to him by Petitioner. Lieutenant Little was on vacation and received the call at home. Officer Howard stated that he needed to report this complaint because Petitioner stated she was uncomfortable with the language used by Officer Sessions in the control room. Lieutenant Little advised Officer Howard that the issue would be addressed upon his return from vacation. Upon returning to work on November 24, 2003, Lieutenant Little called a meeting to discuss Petitioner’s complaints about Officer Sessions’ DOR and phone calls. Petitioner attended the meeting, along with Officer Howard and Corporal Barcia. At this meeting, Petitioner stated that she disagreed with the DOR that Officer Sessions had issued her for November 19, 2003. Specifically, she disagreed with the ratings she received on the DOR. Petitioner was asked why she had not included her disagreements in the “Trainee’s Comments” Section of the DOR. After receiving no reply, Lieutenant Little instructed her that she could make those comments on the DOR, but that they would need to be initialed and dated accordingly. In the comments Section, Petitioner wrote: I had three phone calls, each one was no longer than three-four minutes. The phone calls were in regards to my children. (Staying in assigned post) Ofc[.] Sessions had me escorting I/M’s back and forth and taking paperwork to Ms. Morgan and other sections. When Ofc[.] Sessions was on the phone I would exit the main control room because I didn’t want to hear about his personal business. [Initialed: KM and dated 11-24-03] With regard to her complaints regarding Officer Sessions’ personal phone conversations, Petitioner was very vague in her recount at the meeting. Lieutenant Little asked Petitioner to state with particularity her complaint. She was asked to reduce her complaints to writing and to be as factual and detailed as she could so that Lieutenat Little could properly investigate the matter. Petitioner claims that Lieutenant Little instructed her not to be detailed about the incident. However, Petitioner’s recollection is not given any weight. He instructed her to write the incident report at a sergeant’s desk that was available to write her report. Corporal Barcia sat in the room with Petitioner while she wrote the report since the office was also used by him. Petitioner claimed she felt intimidated by the presence of Corporal Barcia. However, Corporal Barcia did nothing to intimidate her. He did not ask questions about her report or read her report. Petitioner’s testimony regarding her feelings of intimidation is not credible. Lieutenant Little forwarded the report up the chain of command to Captain Smithey. Officer Sessions was disciplined for his conduct and reprimanded in writing regarding his unprofessional phone conversations of November 19, 2003. Officer Sessions was also required to write a letter of apology to Petitioner. The letter of apology was also placed in Officer Sessions’ personnel file. Petitioner testified she never received Officer Sessions’ letter of apology. At some point after his return from vacation, Lieutenant Little received Petitioner’s memo requesting leave from work. After he reviewed the memo and noted Petitioner’s statements regarding Ms. Jackson’s approval, Lieutenant Little contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson told Lieutenant Little that she had not given any such approval and would not have done so since she did not have the authority to grant leave. Based on the information from Ms. Jackson and the fact that Ms. Jackson has no authority to approve leave requests for any Columbia County Sheriff’s Office employees, Lieutenant Little concluded that Petitioner was untruthful in her statements in the memorandum about time off. Such untruthfulness was a serious matter regarding Petitioner’s appropriateness to remain employed with the Sheriff’s Office. Lieutenant Little was also very concerned with the fact that Petitioner was already requesting time off since her attendance had been an issue in the past and she was being given a second chance for employment. In the meantime, as part of the field training program, Petitioner was assigned Officer Harris as her field training officer for a different shift. On November 28, 2003, only eight working days after being sworn in by the Sheriff, Petitioner became ill with a flu- type illness. There was no credible evidence that she was incapacitated by this illness to the point that she could not personally call her supervisor as the policy required. As in the past, Petitioner failed to report for duty and failed to properly call-in to her supervisor. This failure violated the Columbia County Sheriff’s Office policy for such absences. On November 29, 2003, Officer Harris, noted on Petitioner’s DOR that she exhibited unacceptable performance with regard to Columbia County Sheriff’s Office policies and procedures; namely, Petitioner needed to utilize the proper chain of command when calling-in. Petitioner wished to explain why she did not follow the call-in policy. Below Officer Howard’s comments, Petitioner inserted comments in a section of the DOR designated for field training officers’ use. Because her comments were in the inappropriate Section Petitioner was instructed to white-out the comments and to place them in the proper section titled, “Trainee’s Comments.” The original, whited-out statement read: The morning I called in Officer Howard was contacted first when I called main control. Mrs. Harris wasn't in yet and didn't have her number. When I called back at the main control, I was directed to speak with Corporal Green. The comments that Petitioner rewrote in the “Trainee’s Comments” Section on the same date were significantly changed by Petitioner to read as follows: The morning I was unable to come to work my husband contacted Ofc[.] Howard [and] was instructed to call Mrs. Harris[.] [W}hen he called Mrs. Harris wasn’t in yet so he was instructed to call back in 20 min[utes]. He was told to relay the message to me, for me to call Cpl. Green. I did so at 1:30 p.m. According to this account by Petitioner, she only made one phone call at 1:30 p.m. to her supervisor well-after the start of her shift and in violation of the Sheriff’s Office policy. Petitioner’s phone records reveal that five telephone calls were made on November 28, 2003, with four of them to the Columbia County Sheriff’s Office Jail. Petitioner testified that her husband, Ralph Morgan, made the first three telephone calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to her comments written on her November 29, 2003, DOR, the Petitioner testified that she telephoned the Jail two times that day, once at 6:24 a.m. and again at 1:20 p.m. However, Petitioner’s memory of the calls she made is not credible, given the more credible written statement she made on the DOR shortly after her absence occurred. Petitioner admits that none of the phone calls, either from Petitioner’s husband or herself complied with the Columbia County Sheriff’s Office policy regarding sick leave. On December 2, 2003, Lieutenant Little sent a memorandum to Captain Smithey recommending that the Petitioner be considered for termination. Lieutenant Little formulated his opinion based upon: Petitioner’s past attendance problems with the Columbia County Sheriff’s Office; her most recent failure to follow Columbia County Sheriff’s Office policy with regard to calling-in and attendance; and her untruthfulness with regard to her request for days off. As a result, and based upon the Sheriff’s recent imposition of strict probationary guidelines on Petitioner’s recent hiring Captain Smithey concurred in the recommendation. There was no evidence that either Little’s or Smithey’s actions were related to any complaint Petitioner had made regarding Officer Sessions. Captain Smithey forwarded the recommendation to the Sheriff. The Sheriff consulted with members of his command staff and reviewed Petitioner’s performance during her probationary period. The Sheriff determined that Petitioner had not satisfied the agency’s standards for the probationary period and had failed in the second chance he had given her. On December 3, 2003, the Sheriff withdrew the Petitioner’s appointment as a probationary Corrections Officer. At hearing, Petitioner admitted that the Sheriff’s decision to terminate her had nothing to do with her complaints to Lieutenant Little about Officer Sessions, but was rather based upon Petitioner’s failure to follow Columbia County Sheriff’s Office call-in procedure. She felt that it was Lieutenant Little and other Officers who had conspired against her to get her terminated. However, there was no credible evidence to demonstrate that such a conspiracy existed. After Petitioner’s termination she contacted the Sheriff to schedule a meeting to discuss her termination. At that meeting, Petitioner spoke with the Sheriff about her complaints regarding Officer Sessions and the issues she had with her DORs. The Sheriff was unaware of the issues she had with Sessions. Specifically, Petitioner claimed that her DOR had been altered or whited-out because she had made complaints to her supervisor in it. Petitioner brought with her to the meeting correct DORs from Officer Sirak as well as the November 29, 2003, DORs. Petitioner told the Sheriff that she believed her DORs were altered in retaliation for a complaint she had made to one of her supervisors. The Sheriff testified that Petitioner did not talk to him about anything with regard to Officer Sessions or sexual harassment during the post-termination meeting. The Sheriff explained to Petitioner that his decision to terminate her was based upon her failure to follow Columbia County Sheriff’s Office procedures. With regard to Petitioner’s DORs, the Sheriff made copies and told her that he would look into her concerns. The Sheriff investigated Petitioner’s concerns, but discovered that all of the DORs that had been changed were changed in order to correct errors made on them. There was no credible evidence to the contrary regarding these DORs. The Sheriff did not discover any reason to change his decision regarding Petitioner’s termination. During discovery, Petitioner originally claimed that it was her November 19, 2003, DOR that had been whited-out, and that she had physically witnessed Officer Howard white it out in his office. Petitioner later recanted her testimony and stated that it was in fact her November 29, 2003, DOR which had been whited-out. With regard to her November 29, 2003, DOR being whited-out, Petitioner changed her testimony to reflect that she witnessed Officer Howard white-out the DOR on November 29, 2003. Despite Petitioner’s numerous attempts to explain her version of the facts with regard to who did what and when to her DORs, even her modified testimony is inconsistent with the facts on record. The record reflects that Officer Howard was not on duty on November 29, 2003. He was off for the holiday beginning on November 27, 2003. His time card reflects that he was on annual leave for the Thanksgiving holiday starting on November 27, 2003, and that he did not return to work until the following, Monday, December 1, 2003. The 29th was a Saturday and Officer Howard worked weekdays and did not go to the jail on the 29th. Regardless of the fact that Petitioner could not have seen Officer Howard white-out her DOR because he was not at work on the day she specified, Petitioner’s testimony with regard to the DORs themselves also proved to be inconsistent with the facts. Petitioner asserted that the reason her DOR was whited- out was that she had included comments regarding sexual language she had overheard Officer Sessions use on the night of November 19th. However, upon examination of the November 29th DOR in question, it was discovered that Petitioner did not mention anything at all with regard to sexual comments or Officer Sessions, but that the comments she had inserted were actually her attempts at justifying why she had failed to properly call-in to her supervisor the day before. As indicated earlier, the reason the comments were whited-out was that Petitioner had inserted them in a Section designated for field training officer use only. As a result, Petitioner was required to move them to the appropriate Section designated as “Trainee’s Comments.” At hearing, Petitioner produced, after her deposition had already been taken, a new DOR allegedly drafted on November 28, 2003, by Officer Harris. This DOR was not contained in Petitioner’s personnel file and it is not known where the newly discovered DOR came from. There is no record evidence, other than Petitioner’s own assertions, that Petitioner’s November 28th DOR is authentic. Suspiciously, Petitioner did not produce this document in response to Respondent’s Request for Production. Nor did Petitioner mention it in her Answers to Interrogatories. She testified that she did not find it in all her papers until after her deposition. Petitioner’s testimony regarding this newly discovered DOR is not credible. Finally, Petitioner offered evidence regarding purportedly similary-situated employees. These employees were Charles Bailey, Thomas Daughtrey and Chad Sessions. Officer Charles Bailey had been employed with Columbia County Sheriff’s Office two times in his career. During his first employment, Officer Bailey was terminated for attendance problems similar to the problems Petitioner experienced in her employment with Columbia County Sheriff’s Office. When Officer Bailey was hired back, he was given strict probationary terms to abide by, including that he: be on time for all scheduled tours of duty; follow all Columbia County Sheriff’s Office call-in procedures; and to generally abide by all Columbia County Sheriff’s Office policies and procedures. During his second- chance employment Officer Bailey abided by all of the conditions set out for him. He did not abuse sick leave and he called-in properly pursuant to Columbia County Sheriff’s Office policy when he needed to take leave. Officer Bailey left the Columbia County Sheriff’s Office on good terms after his second employment. Officer Bailey is not similarly situated in any relevant aspects to Petitioner. Unlike Petitioner, Officer Bailey abided by all of his conditions upon rehire and properly followed Columbia County Sheriff’s Office call-in policy when he missed time. Officer Thomas Daughtry was a new employee and in the field officer training program. He was not a second-chance employee. During his training he missed several days, however, despite the fact that Officer Daughtrey missed some days during his training, Officer Daughtrey followed Columbia County Sheriff’s Office call-in policy every time he requested time off. Nevertheless, because he did in fact miss days during his training, Officer Daughtrey was given unsatisfactory reviews and was required to re-do part of his training. Because he properly called in and he was not a second-chance employee, Officer Daughtrey is not similarly situated to Petitioner in any relevant aspects. Officer Chad Sessions was employed two times with Columbia County Sheriff’s Office. Both times Officer Sessions resigned under good terms. Petitioner has attempted to compare his second employment with that of her second, probationary employment, specifically with regard to a written reprimand Officer Sessions received for failure to follow call-in policy on September 10, 2004. When Officer Chad Sessions was given a reprimand for failing to call-in properly on September 10, 2004, he was not a probationary trainee. Rather, Officer Sessions was a Field Training Officer, and the reason he was unable to phone the jail was due to the phone outages caused by Hurricane Frances. Officer Sessions could not phone the jail and he could not be reached because of the high winds and heavy rain produced by Hurricane Frances. Because Officer Sessions was not a probationary employee, and taking into consideration the extenuating circumstances surrounding the incident, Lieutenant Little decided to issue him a written reprimand. Furthermore, there is no record evidence that Officer Sessions came to the Sheriff’s Office with a prior termination and a poor employment history similar to that of Petitioner. As a result, Officer Sessions is not similarly situated to Petitioner in all relevant aspects.
Recommendation Based on upon the above findings of fact and conclusions of law, it is RECOMMENDED that the Petition For Relief should be dismissed. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of November, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katrina R. Morgan 4777 Shavesbluff Road Macclenny, Florida 32063 T.A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Leonard J. Dietzen, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
