The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer 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 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The ultimate issues to be resolved in this proceeding are whether the City of Port Orange Police Department discriminated against the Petitioner on account of her sex in connection with her employment at the police department and, if so, what remedies are appropriate. Petitioner contends that she was subjected to sexual harassment, denied promotions on account of her sex, and ultimately forced to resign on account of continued sexual harassment. She contends that she is entitled to damages in excess of $20,000 plus costs and a reasonable attorney's fee. The Respondent contends that the Petitioner was neither harassed nor discriminated against on account of her sex, that she voluntarily resigned her position, and that she is entitled to no damages.
Findings Of Fact Port Orange is a municipality located in Volusia County, Florida. The city's police department presently has 54 employees including civilian personnel (secretaries, clerks, and dispatchers), patrolmen, corporals, sergeants, lieutenants, captains, and the chief. The chief, who answers to the city manager, is in charge of the day-to-day activities of the department. The Petitioner, Karen L. Russell, is a female. She was hired as a dispatcher with the Port Orange Police Department in late February, 1978. Petitioner performed well as a dispatcher, received commendations, satisfactory reviews, and annual raises. Petitioner had ambitions to be a regular police officer. About three or four months after she started with the department, she asked to go to "rookie school." This is a preliminary step to advancement within the department. Completion of the school is necessary in order to obtain certification as a police officer. In order to be sworn in and have arrest powers, certification was essential. During the time that Petitioner was employed with the department, and continuing until the present, the chief of police was David Solona. There were two captains in the department, one of whom was Randy Milholen. Milholen was ultimately in charge of the dispatchers. Captain Milholen advised Petitioner that they would not be sending any more women to rookie school and that they were not interested in having any more women on the road as regular police officers. Nonetheless, Petitioner was eventually allowed to attend rookie school. She was advised, however, that she would not be allowed to go on the road as a regular officer when she completed the school. Petitioner attended the school, completed it, and received certification from the Florida Commission on Police Officer Standards and Training. The certification was issued October 27, 1978. Despite the fact that she had obtained certification, Petitioner was not sworn in as a police officer at the department for a period of a year. Captain Milholen was opposed to having the Petitioner sworn in and told her that. She wished to be hired as a regular road officer, and she advised Captain Milholen and Chief Solona of this desire. She was not hired as a regular officer. Instead, males who completed the rookie school program after Petitioner completed it were sworn in and hired as regular road officers. Chief Solona advised Petitioner that he felt it was too dangerous for women to be on the road and that he needed to protect them. He stated that he had had two women on the road previously and that he did not want to have any more. Solona advised Petitioner that women should be at home and that they should have a man take care of them. Solona told Petitioner that if women needed money, they should make it on their backs, an obvious indication that he felt that if women needed money, they should resort to prostitution. Three men from the Petitioner's rookie school class were sworn in as regular officers before they even finished the school program. Immediately upon finishing the program, they were hired and placed on the road as regular officers. In 1980, Petitioner was promoted from her position as a dispatcher and made animal control officer. Previous animal control officers had not been certified police officers, and Petitioner was given the additional duty of "environmental officer." She received pay comparable to what regular road officers received, except that the road officers were allowed to work 12-hour shifts for four days and receive overtime bonuses for work in excess of 40 hours per week. They also had a retirement program, extra details during busy times, and opportunities to attend career enhancement courses that could result in increased pay. Petitioner was allowed to work only 40 hours a week, had no overtime opportunities, and was not regarded as a regular police officer. During the time that she was animal control and environmental officer, Chief Solona ordered Petitioner to make coffee for the office when she arrived in the morning. She felt that this was not part of her job description, and she refused. The chief took her job description and wrote "coffeepot" on it. He also gave her a memorandum requiring that she make coffee. Petitioner made numerous requests, both while she was dispatcher and while she was animal control and environmental officer, to attend career enhancement courses. All of her requests were denied. During all of the time that she was with the department, the Petitioner made it plain to Chief Solona and to Captain Milholen that she desired to be a regular police officer. She was continuously advised that that would not be possible. The reason that Petitioner was not given an opportunity to work as a regular police officer with the department was her sex. Chief Solona did not want to have women police officers, and he sought to limit their number as much as possible. There was an atmosphere at the Port Orange Police Department at the time that Petitioner worked there that was derogatory and demeaning to women. Vulgar language and gestures on the part of officers were a daily occurrence. Two persons who engaged in this conduct most frequently were Captain Milholen and Lieutenant Boccuzzi. Milholen would frequently make movements as if he was feeling females' breasts or hunch his pelvis in simulation of intercourse. There were narrow hallways at the department's offices. Milholen would typically brush by females who passed him in the hallway, including Petitioner, in a rude and sexually suggestive manner. On a few occasions, Milholen got sexually aroused and pointed out his erection to female employees. Boccuzzi engaged in similar conduct on a constant and ongoing basis. Boccuzzi, however, would actually grab females' breasts and rear ends. He would act as though he was going to unzip his pants and would make vulgar comments about women and their bodies. During the three years that Petitioner remained with the Port Orange Police Department, the vulgar language and gestures occurred on a virtually daily basis. Chief Solona was not a participant in this sort of imbecilic conduct, but he was aware of it and took no steps to end it. In addition to the ongoing vulgar language and conduct, there were several acts of sexual harassment directed at Petitioner by Chief Solona, Captain Milholen, and Lieutenant Boccuzzi which reflect the attitude of these people toward women and which ultimately caused the Petitioner to resign her position. When the Petitioner was sworn in as a police officer, Solona conducted a pinning ceremony in which he placed his hand inside Petitioner's blouse and pinned a dispatcher's badge on her. The pinning ceremony is not one that occurred with all officers. It was reserved for female employees. On one occasion, Chief Solona advised Petitioner that he could fix her up with a man who would pay her $100 a couple of times a week to spend an evening with her. On another occasion, Solona and Captain Milholen were in Orlando at some sort of professional conference. They called Petitioner, who was then at work, and asked her to come to Orlando along with her roommate. Both Milholen and Solona in the telephone conversation inferred that Petitioner's job would be in jeopardy if she did not go to Orlando to meet them. Petitioner's roommate agreed to go because of the risk to Petitioner's job. While she was on her way to Orlando, Petitioner was still on active duty at the police department. When the two of them arrived in Orlando, Solona and Milholen took them out to supper, then to a topless bar. The rest of the evening proceeded fairly innocently for Petitioner. On more than one occasion, Captain Milholen arrived unannounced at the Petitioner's apartment. On one occasion, Milholen came with another officer, and they actually chased the Petitioner and her roommate around the room physically. Boccuzzi's conduct was even more overt. He showed up at the Petitioner's apartment drunk on several occasions and was abusive, sexually forcing himself on Petitioner on one occasion. On another occasion, Petitioner and her roommate had to call a local policeman to remove Boccuzzi from their yard. Boccuzzi dropped his pants and exposed himself in their yard. On another occasion, he did the same thing at the parking lot of the police department. Chief Solona's response upon hearing of these sorts of conduct was to reprimand Boccuzzi. Chief Solona made it plain to Petitioner that she was not permitted to carry any problems she had at the department over his head. He threatened her with termination if she went to the city manager. Ultimately, Petitioner could no longer tolerate the continuous sexual harassment imposed on her by high-ranking employees at the department. She sought to resign her position effective November 28, 1980. Chief Solona persuaded her to take a leave of absence for a month in order to think things over. She did that, but did not return, and her letter requesting a leave of absence ultimately became her resignation letter. In resigning from her position, Petitioner did not immediately charge the Respondent with sexual harassment and with discriminatory activities. She wanted to leave the job with as few bad feelings as possible and without any blotches on her employment record. When she finally returned to the department in late December, 1980, to get her last paycheck, however, she got one more dose of harassment from Chief Solona, and it was too much. Solona told Petitioner that she would need to work for her check, inferring that she would have to have sex with him in order to get her final paycheck. She left his office and went to the city manager's office and lodged complaints against Solona and the police department. Based upon Petitioner's complaint, the city manager initiated an investigation of Solona and concluded that Petitioner's allegations were well founded. He terminated Solona. Solona fought the termination and was ultimately reinstated by the city commission. There were lengthy hearings that resulted in his being reinstated. Petitioner was not a party to those proceedings. After she left the department, Petitioner sought unemployment compensation benefits. An appeals referee of the Florida Department of Labor and Employment Security, Unemployment Compensation Appeals Section, ruled that Petitioner left her employment due to continuous suggestive remarks made by her employer and some fellow employees. The referee held that Petitioner had good cause to leave her employment and that she was not disqualified from receiving unemployment compensation benefits. The Petitioner and the City of Port Orange were parties to the proceeding before the appeals referee. The issue in the proceeding was whether Petitioner had good cause for leaving her employment on account of sexual harassment. It was concluded that she did. While Petitioner ostensibly left her employment with the Port Orange Police Department voluntarily, her leaving actually constituted a constructive dismissal. She left because of the continuous vulgar, suggestive, and harassing conduct of the chief, the captain, and the lieutenant. But for the fact that she was a female, Petitioner would have been hired as a regular road officer upon completing rookie school. If she progressed in an average fashion, she would now be a sergeant with the department. It is likely that she would have attended some career enhancement courses and received additional pay on account of them. During 1978, Petitioner earned $6,640 in her position with the Port Orange Police Department. If she had been hired as a regular patrol officer, she would have received $8,970, a difference of $2,330. During 1979, Petitioner earned $8,449.28 from her employment with the Port Orange Police Department. If she had been hired as a regular police officer, she would have received $11,032.84, a difference of $2,583.56. During 1980, Petitioner earned $9,884 in her position with the Port Orange Police Department. If she had been hired as a regular patrol officer, she would have received $11,308.44, a difference of $1,424.44. After she left the Port Orange Police Department, Petitioner made diligent efforts to obtain suitable employment. Despite her best efforts, she was able to earn only $4,200 during 1981. If she had been retained as a regular patrol officer with the City of Port Orange, she would have received $11,590.80, a difference of $7,390.80. During 1982, despite her best efforts, Petitioner was able to earn only $9,696.84. If she had been retained by the City of Port Orange as a regular police officer, she would have received $15,225.60, a difference of $5,528.76. Up until the time that the hearing commenced on August 10, 1983, Petitioner had earned, despite her best efforts, only $4,286 during 1983. If she had been retained by the City of Port Orange as a regular police officer, she would have received $6,899.76 in compensation up to that time, a difference of $2,613.76. Due to the fact that she has been discriminated against on account of her sex by the City of Port Orange, Petitioner lost a total of $21,871.32 in wages from 1978 until August 10, 1983.
Findings Of Fact The Parties. Petitioner, Robert L. Wright, is an African-American. Officer Wright was, at all times relevant to this proceeding, employed by Respondent as a police officer. Respondent, the City of Gainesville (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. The City provides law enforcement services through the Gainesville Police Department (hereinafter referred to as "GPD"). At all times relevant to this proceeding, the Chief of GPD was Wayland Clifton, Jr. The City is an "employer" for purposes of this proceeding. Officer Wright's Employment With GPD. Officer Wright was hired by GPD in 1984. Officer Wright has served as a police officer with GPD continuously since being hired. From approximately 1985 until July of 1990, Officer Wright was assigned to Crime Prevention or Neighborhood Services. Officer Wright served as "Officer Friendly" and as the Explorer Advisor. While employed with GPD Officer Wright has received several awards and honors. See Petitioner's exhibit 10 for a list of Officer Wright's awards and honors. Officer Wright was awarded a B.A. degree in Criminal Justice from the University of Florida in 1983. Officer Wright's annual evaluations have been above-average. Officer Wright has received the following sustained internal affairs complaints prior to March of 1993: March 1, 1988: Involvement in an at-fault vehicle accident; October 12, 1990: Inefficiency in job performance; October 12, 1990: Offensive conduct toward the public/person - physical abuse; October 12, 1990: Offensive conduct toward the public/person - verbal abuse; October 22, 1990: Failure to appear for any legal process; December 17, 1990: Inefficiency in job performance; February 21, 1991: Inefficiency in job performance; and November 23, 1992: Inefficiency in job performance. The three complaints of October 12, 1990 all arose out of the same incident. Officer Wright received a written warning for each of the foregoing sustained complaints. A written warning is the lowest recorded punishment for a sustained complaint. A written warning may not be appealed. Officer Wright also received sustained complaints after 1991, but the evidence failed to prove that any of those sustained complaints were taken into account in determining whether to promote Officer Wright. Prior to 1990, Officer Wright had received overall ratings of 7 and above on his annual evaluations. A score of 5 is considered average. During 1990, Officer Wright and his former spouse were involved in divorce proceedings and a contested custody dispute over their daughter. These disputes caused disruptions for Officer Wright and GPD. As a result of the disruptions and the fact that Officer Wright was reassigned to patrol in 1990, Officer Wright's overall evaluations declined. For the period April 2, 1990 to April 1, 1991, his overall evaluation was 6.0. His overall evaluation for April 1, 1991 to March 30, 1992 was 6.2, and for March 20, 1992 to March 29, 1993 was 6.6. Officer Wright was counseled by his immediate supervisor, Lt. David Huckstep, about the performance of his duties during the time that Officer Wright was involved in the dispute with his former wife. Lt. Huckstep talked to Officer Wright about being late to work, an "attitude problem" and the negative impression of GPD being caused by the problems associated with Officer Wright's divorce. Lt. Huckstep also discussed these problems with Captain Richard Carroll. Captain Carroll was part of the Command Staff that was involved in discussions of candidates for promotion to corporal, discussed, infra. Officer Wright's Activities on Behalf of African- American Issues. Officer Wright has been active in promoting the betterment of African- American officers of GPD since becoming a police officer. Officer Wright's activities on behalf of African-American issues has been very vocal and open. There are some who perceive Officer Wright's methods as too aggressive or vocal. The evidence, however, failed to prove that perception is held by Command Staff or Chief Clifton. On September 25, 1985, Officer Wright, along with ten other officers, were appointed by Chief Clifton as "recruitment team members". Petitioner's exhibit 3. Chief Clifton informed Officer Wright and the other team members that they would be assigned, as needed and on a rotational basis to recruitment functions by the Police Personnel Office. Officer Wright and the other team members had expressed interest in assisting with recruitment. On September 20, 1988, Officer Wright and eleven other individuals were appointed by Chief Clifton as a "Minority Recruiting and Training Task Force". On October 3, 1990, Officer Wright and fourteen other officers were appointed by the Professional Standards Commander, Captain Eugene K. Ross, to participate in the oral interview board for police officer applicants. Appointment to this task was based upon the expressed interest of the participants. Officer Wright has questioned the success of GPD's efforts to recruit and promote African Americans and has questioned the discipline of African American police officers. The evidence, however, failed to prove that Officer Wright's activities on behalf of African Americans amounted to opposition to any unlawful employment practice under Chapter 760, Florida Statutes, by GPD, except as discussed in section D of this Recommended Order. Officer Wright's Meeting with the City Manager. At some time during 1990, Officer Wright, Captain Tony Jones, Lt. Alena Buggs (then known as Alena Lawson) and Sergeant Wayne Ashe met with Paul White, the City of Gainesville City Manager. The meeting with Mr. White was requested for the purpose of discussing the hiring and promotion of African-Americans at GPD. A perceived disparate treatment of African-American officers with regard to disciplinary actions at GPD was also briefly discussed with Mr. White. In particular, Officer Wright gave Mr. White a copy of an Internal Affairs report concerning a complaint against Officer Dan Schilling (hereinafter referred to as the "Schilling Report"). See Petitioner's exhibit 2. Officer Schilling had been found to have used the words "those God damn niggers" in front of others. When the report was forwarded to Chief Clifton from internal affairs an Employee Notice form summarizing the incident was used to send the actual detailed report to Chief Clifton. Petitioner's exhibit 2. Under the "Comments" section of the Employee Notice the offending words were quoted. Chief Clifton sent the report back with a note indicating that he would sign the report and accept the recommended punishment when the quoted offensive words were removed. The words were later removed and Chief Clifton approved the report and the proposed punishment. Mr. White told the officers that he would look into the Schilling Report. The evidence, however, failed to prove whether Mr. White ever spoke to Chief Clifton or any other individual about the Schilling Report or the meeting. Officer Wright's Transfer to Patrol in July of 1990. On or about July 3, 1990, a transfer order was issued transferring Officer Wright to the Patrol Division. See. Respondent's exhibit 1. The transfer order of July 3, 1990 was issued after Officer Wright had given the Schilling Report to Mr. White. The evidence failed to prove how long a period of time had passed after the meeting with Mr. White before the transfer was ordered. Pursuant to the transfer order, four other officers were also transferred. During the month of July of 1990 a total of eight officers were transferred to patrol. None of the officers transferred had attended the meeting with Mr. White except Officer Wright. Of the individuals who attended the meeting with Mr. White, only Officer Wright was transferred. The transfer was effective July 23, 1990. Initially Officer Wright was to be assigned to the midnight shift. Officer Wright was absent on leave when the transfer order was issued. He learned of the transfer on July 10, 1990. Captain Jones informed Officer Wright of the transfer. Officer Wright spoke to Captain Noel Thomas, the commander of Patrol, on July 10, 1990 concerning the transfer. Officer Wright requested orally and by memorandum that he be assigned to a day-shift. See Respondent's exhibit 7. This request was made because Officer Wright was a single parent with custody of his three-year old daughter. Although Captain Thomas initially told Officer Wright that he would be assigned to the midnight shift, the next day, July 11, 1990, Captain Thomas told Officer Wright that his request to be assigned to a day shift would be approved. Patrol is the largest division of the GPD and is the primary service provided by GPD. All commanders, including the commander in charge of the Neighborhood Services Division of GPD, Captain Jones, were informed that there was a shortage of personnel in the Patrol Division. Therefore, the Chief directed Captain Jones and the other commanders to look within their respective divisions and make recommendations about any officer that could be transferred to patrol. Captain Jones decided that either the school resource officer at Gainesville High School, Officer Burke, or the Explorer Advisor, Officer Wright, should be returned to Patrol. Captain Jones decided that it was more important to retain an officer at the high school than to have an Explorer Advisor. This decision was based upon Captain Jones' belief that, if the high school resource officer was removed, patrol would simply take the officer's place by having to respond to calls from the high school. Captain Jones recommended that Officer Wright be transferred to Patrol. Captain Jones was not directed by anyone to select Officer Wright. Captain Jones' recommendation was accepted by Captain Clifton. After Captain Jones had recommended that Officer Wright be transferred and Chief Clifton had accepted the recommendation, Captain Ross met with Chief Clifton. During this meeting the question was raised as to whether Officer Wright's transfer might be perceived as retaliation for his having met with Mr. White. The evidence concerning this meeting, however, failed to prove that Chief Clifton made the decision to transfer Officer Wright based upon his involvement in the meeting with Mr. White. Captain Ross was unable to recall exactly who participated in the meeting, whether Chief Clifton made any statement to the effect that his decision to transfer Officer Wright was based in any way on the meeting with Mr. White or whether Chief Clifton was aware of the meeting with Mr. White prior to the decision to transfer or the meeting with Captain Ross. The evidence also failed to prove whether Chief Clifton was informed that Officer Wright had given the Schilling Report to Mr. White or otherwise suggested that the action in the Schilling Report was an example of disparate treatment based upon race in violation of Chapter 760, Florida Statutes. The evidence failed to prove that Officer Wright was transferred to patrol for any discriminatory reason. No complaint was filed by Officer Wright within 365 days of his transfer to patrol alleging that his transfer was for discriminatory reasons. The 1991 Corporal's Eligibility List. Effective December of 1991 a group of officers qualified for promotion to corporal. They qualified for promotion by successfully completing a test and assessment. The officers that qualified for promotion to corporal in 1991 were listed alphabetically on the "1991 Corporal's Eligibility List" (hereinafter referred to as the "Corporal's List"). Respondent's exhibit 11. All of the individuals that qualified for promotion were listed alphabetically. Officer Wright was the last person on the Corporal's list. Inclusion on the Corporal's List meant that each of the individuals listed met the minimum requirements for promotion. Inclusion did not, however, mean that each individual on the list was equally qualified. Some judgment was necessary to decide which individuals on the list were actually promoted absent a need to promote all of the individuals on the list. Officer Wright was one of the individuals listed on the Corporal's List. Pursuant to contract with the union representing employees of GPD, the Corporal's List was valid for an eighteen month period: December, 1991, to May, 1993. There were twenty-six individuals listed on the Corporal's List. Promotions From the Corporal's List. Chief Clifton was provided with information from the Commander in Charge of Personnel concerning each candidate's personnel record, including their annual evaluation scores, training and the length and type of their service at GPD. Chief Clifton was also provided with information from the Internal Affairs Commander concerning each candidate's sustained internal affairs complaints. Prior to January 6, 1992, when the first promotion from the Corporal's List was made, Chief Clifton met with the Commander in Charge of Personnel, the Internal Affairs Commander, the Deputy Chief and the Captains of each division of GPD to discuss the individuals on the Corporal's List. The purpose of the meeting was to allow Chief Clifton to receive input from his command staff concerning the individuals on the Corporal's list. There were more than 200 officers employed by GPD. Chief Clifton was not familiar with all of the officers and, therefore, he looked to his command staff for input. Chief Clifton insists that any comments for or against an officer on a promotion list be supported by specifics. The discussion of candidates on a promotion list can be extensive, lasting two to three hours. Chief Clifton considers comments made by his command staff concerning officers on promotion lists along with the other information he is provided about candidates mentioned in finding of fact 50. Chief Clifton, however, makes the final decision as to which officers are promoted. If someone speaks highly about a candidate for promotion on a promotion list, that individual has a better chance of being promoted. The decision is not, however, a popularity contest in which the person most liked gets promoted. If an individual is spoken highly of by his or her supervisors, it is reasonable that the Chief would give those comments great weight. Chief Clifton asked for comment about each person listed on the Corporal's List. Chief Clifton took the names on the Corporal's List in reverse alphabetical order. Therefore, Chief Clifton first asked if there were any pro's or con's concerning Officer Wright. No one in the meeting made any comment concerning Officer Wright. Chief Clifton repeated Officer Wright's name a second time. Again, there was no response. Chief Clifton then went on to the next name. Of the twenty-six individuals on the Corporal's List, Officer Wright was the only officer that received no comments whatsoever during the meeting to review the Corporal's List. After the meeting with the command staff, Chief Clifton met with Lt. Scott and Deputy Chief Johnston and informed them of his decision. Chief Clifton subsequently made promotions of seventeen individuals on the Corporal's List. The following promotions were made from the Corporal's List: January 6, 1992: Terry Converse, Paul Forsberg, Shelly Grulke, Stephen Kramig and Jeffrey Rouse (or Reese); April 27, 1992: Edward Posey and Larry Seale; November 23, 1992: Mary Birkhold, Mason Byrd, Corey Dahlem, Steve Dean, David Riker, Stephen Weaver and L. Dale Witt; January 4, 1993: Timothy Hayes, Martin Krpan; and March 29, 1993: Edward Legall. Chief Clifton met with Lt. Scott and Deputy Chief Johnston prior to each of the promotion decisions on the Corporal's List. Lt. Scott reminded the Chief during these meetings of the first meeting with the command staff. The last person to be promoted from the Corporal's List was Edward Legall. Officer Wright continued to be eligible for promotion off the Corporal's List until it expired in May of 1993. Officer Wright was not selected by the Chief for promotion from the Corporal's List. Eight other individuals on the list were also not promoted. Officer Wright could not have known that he would not be selected for promotion until May of 1993. Officer Wright has not qualified for any other promotion list. The Basis for Not Promoting Officer Wright. The evidence in this case failed to prove that Officer Wright was not promoted due to his activities on behalf of African American officers. The evidence also failed to prove that Officer Wright was not promoted due to his having given the Schilling Report to Mr. White. Although Mr. White indicated that he would speak to Chief Clifton about the Schilling Report, the weight of the evidence failed to prove whether he actually did. To conclude that Mr. White actually spoke to Chief Clifton would require inappropriate speculation. The evidence also failed to prove that Officer Wright was not promoted due to his having met with Mr. White. One of the other individuals that met with Mr. White, Wayne Ashe, was subsequently promoted to Sergeant in November of 1992. Sergeant Ashe was on the sergeant's promotion list considered at the same time as the Corporal's List. The evidence also failed to prove that Officer Wright was more qualified than any of the officers selected for promotion off the Corporal's List. The only evidence presented by Officer Wright concerning any of the officers promoted was evidence comparing his education with theirs. That evidence indicated that Officer Wright had more formal education than most of the promoted officers. The evidence, however, proved that more than education was taken into account in deciding who was promoted. Also considered by Chief Clifton was: interval affairs history, performance appraisals, service with GPD, the location and circumstances surrounding the position to be filed and input from the Commanders about a candidate's performance, abilities and interaction with other officers. Officer Wright failed to present evidence concerning all of these factors with regard to the officers promoted off of the Corporal's List. Finally, the evidence failed to prove that Officer Wright was denied a promotion because GPD or Chief Clifton perceived Officer Wright as a "racist". I. Officer Wright's Complaint. Officer Wright filed a Charge of Discrimination with the Commission on or about November 11, 1993 alleging that Chief Clifton had subjected him to certain retaliatory actions. In his complaint, Officer Wright suggested that the transfer to patrol and the failure to promote him were retaliatory actions of GPD. On or about July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about August 19, 1994, Officer Wright filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings on August 29, 1994. In his Petition for Relief, Officer Wright alleged that Respondent violated the Florida Civil Rights Act of 1992, as amended, in the following manner: I contend that I was not promoted as a retal- iatory measure resulting from my questioning the Department's commitment to increasing the numbers of African-American police officers. My comments, as reported to me by Deputy Chief Darryl [sic] Johnston, led to be being perceived as a "racist" by command staff, and he further suggested that this perception influenced my not being selected for promotion. Officer Wright also alleged the following "ultimate facts": I allege that discriminatory labor practices occurred by my lack of promotion due to: a) retaliation for raising racial hiring issues, and b) issues of race, whereby command staff's perception of my being "racist" influenced the decision to not promote me. For entitlement, I request the following: a) finding of cause that discrimination did occur, b) promotion, and c) retroactive pay. Officer Wright did not challenge his transfer to patrol in the Petition for Relief.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by the parties Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988. Facts established by evidence at hearing Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/ Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows: FDLE auxiliary special agents are authorized to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement. Section VI.A.3. of Procedural Order 87-2 read as follows: Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an on-duty status. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint. DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1992.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since October 8, 2008, certified by Petitioner as a correctional officer. He holds Correctional Certification No. 279092. Sergeant Brett Woods is a 23-year veteran with the City of Miami (City) Police Department (Miami PD). On November 9, 2010, Sergeant Woods, who was then a uniformed Miami PD patrol officer, was on-duty in his marked patrol car when he was dispatched to a loud music call at 2000 South Miami Avenue in the Coral Way area of the City (Dispatch Location). When Sergeant Woods arrived at the Dispatch Location (at around 9:00 p.m.), his attention was drawn to a visibly upset man, then-unknown to him, who was banging on the front door of a home across the street (located at 2031 South Miami Avenue) and loudly making expletive-filled demands to be let into the home. As Sergeant Woods would later learn, the man creating this disturbance was Respondent. Respondent resided in the home along with his then (and current) fiancée, Iris Thomas--another individual with whom Sergeant Woods was, at the time, totally unfamiliar. Using his patrol car's loud speaker, Sergeant Woods tried to quiet Respondent, but Respondent ignored him. Sergeant Woods then exited his patrol car and started to approach Respondent, who was still causing a commotion at the front door of the home. As he did so, he asked Respondent (at a distance) to calm down and tell him what his problem was. In response to Sergeant Woods's request, a still-visibly upset Respondent turned around and yelled at Sergeant Woods, "Fuck you, this isn't your business." He then began to walk towards Sergeant Woods. He had taken only several steps, when Ms. Thomas opened the door and stepped outside, prompting Respondent to change direction and aggressively charge Ms. Thomas. As he did so, he yelled, "Bitch, get back inside." When he was within arm's reach of Ms Thomas, he forcefully shoved her on the right shoulder as she stood there passively and in a nonthreatening manner. The shove caused Ms. Thomas to stumble backwards into the doorframe of the door she had just opened.2/ From his vantage point approximately 10 to 12 feet away, Sergeant Woods had an unobstructed view of, and could clearly hear, everything that had transpired between Respondent and Ms. Thomas after the latter had exited the home. He immediately placed Respondent under arrest for simple battery and took him into custody. An inventory search of Respondent's person performed by Sergeant Woods before he placed Respondent in his patrol car revealed that Respondent was carrying Ms. Thomas' driver's license and social security card in his wallet. From his examination of the driver's license, which had Ms. Thomas' photograph on it, Sergeant Woods learned Ms. Thomas' identity. After placing Respondent in his patrol car, Sergeant Woods tried to talk to Ms. Thomas, but she was uncooperative and refused to answer any of his questions.3/ Up until the final hearing in this case, Sergeant Woods had no further contact with either Respondent or Ms. Thomas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding that Respondent committed the violation alleged in the Administrative Complaint and, as punishment therefor, suspending his certification for 15 days and placing him on probationary status for six months. DONE AND ENTERED this 11th day of May, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of May, 2012.
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.
The Issue Whether Respondent’s dismissal of Petitioner was an unlawful employment practice.
Findings Of Fact The Petitioner, Norris L. Fails, is an African American and was employed by the City as a police officer for seven and one-half years. The Respondent, City of Clermont (City), is a Florida municipal corporation and operates a police department which employed Fails as a police officer. Fails was terminated by the City in December 2000. Fails asserts that the City terminated him because of his race. The City disputes this allegation. The City asserts that Fails was terminated for violation of City Personnel Policies and Standards Governing Police Officers for violating the rule prohibiting police officers from associating with "undesirables, including convicted felons." The Respondent presented evidence that the Petitioner had been counseled regarding associating with convicted felon, Latisha Rhodes, on three separate occasions, twice in July 2000, and once in November 2000. Petitioner acknowledged the association and his discipline. The Respondent presented evidence that the Petitioner was in a car stopped by Officer Mathis of Groveland Police Department in December of 2000. The driver of the car in which Petitioner was riding, Christopher Taylor, was the subject of a “be on the lookout for” notice. Christopher Taylor was stopped because of his erratic driving and arrested that evening for driving under the influence. He subsequently plead guilty to the offense. The Petitioner identified Taylor to the arresting officer, who recognized the Petitioner as a Clermont police officer, when Taylor was not forthcoming with appropriate identification. The car Taylor was driving belonged to Latisha Rhodes. Petitioner testified regarding his employment and discharge. Petitioner did not deny that he was in the car with Taylor. He denied knowledge of the “be on the lookout for” notice. He asserted that he had been treated differently than a white officer who had done similar things. The City offered the testimony of Police Chief Randall A. Story. Shift command sergeants regularly remind patrol officers and investigators to check the bulletin board for persons wanted by city and other police agencies. The notice on Christopher Taylor was posted from mid-October 2000, until after the date of Fails termination. The notice on Taylor contained a picture of Taylor and was attached to a bright orange business card of State Wildlife Officer Bouchard who had requested officers be on the look out for Taylor. It is not credible that the Petitioner would not have been aware of this notice. The Petitioner should have exercised exceptional discretion when he became aware Taylor was driving Rhodes’ car, having been warned about associating with Rhodes. The Respondent documented that the only white officer accused of associating with undesirables was Brian Connolly, and he had been terminated. See Respondent’s Exhibit 4. The Petitioner presented testimony that other white officers were not terminated for their misconduct. The Petitioner alleged that Officer Robbins, a white male, had associated with a convicted felon, Jerry Jones. However, the Chief of Police denied knowing about this alleged association and no evidence was presented that the Department was aware of their association. The Petitioner alleged that Officer Saunders, a white female, had abused her position as a police officer in an incident in Sanford, Florida. This incident was investigated and it was determined that Saunders’ husband, a former Leesburg policemen, had caused the problem. The Respondent had no basis to discipline Officer Saunders. The Petitioner alleged that Officer Jerry Osteen, a white male, had improperly touched a woman while on duty. The Respondent had investigated the allegations and suspended Officer Osteen. The Petitioner alleged that Respondent had wrongfully terminated Geraldine Young, an African American female. The Respondent terminated Young for uttering two forged instruments. The Respondent had good cause for terminating the Petitioner. The Petitioner did not show credible evidence that Petitioner’s grounds for discharge were other than for the reasons stated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner’s Petition be denied. DONE AND ENTERED this 11th day of October, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2002. COPIES FURNISHED: Norris L. Fails 810 Orange Brooke Court Clermont, Florida 34711 Robert D. Guthrie, Jr., Esquire City of Clermont Post Office Box 3026 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
