The Issue Whether Respondent committed the acts alleged in the charging document, and if so, whether he should be terminated as a detention deputy.
Findings Of Fact At all times material to this case, Respondent, William Lonergan, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent's duties as an employee of the Pinellas County Sheriff's Office included supervision of persons detained in or sentenced to the Pinellas County Jail. The responsibility of supervising inmates was required to be done in a manner consistent with state law and the rules and regulations of the Pinellas County Sheriff's Office. On February 18, 1995, Lonergan was assigned to the Delta Wing of the Pinellas County Jail. This area is a special housing unit for persons with various psychiatric conditions. On this afternoon, Lonergan was supervising trustees/barbers, inmates assigned to provide hair care services to other inmates. These services included providing haircuts to inmates who needed or requested them. Several days prior to February 18, 1995, Cintron, an inmate assigned to the Delta Wing, requested a haircut because he had an upcoming court appearance. On the afternoon of February 18, 1995, Cintron was escorted out of his cell in handcuffs and shackles to the area where he was to get his haircut. Cintron remained in handcuffs and shackles while his hair was being cut due to his "red dot status." This status designation indicated Cintron posed a danger to staff. Deputy Troy Spencer, a detention deputy employed by the Pinellas County Sheriff's Office, was on duty and in the housing pod approximately twenty (20) feet from where inmate haircuts were given. Deputy Spencer observed two trustees/barbers cutting Cintron's hair. However, after Cintron's hair was cut by the trustees, Respondent Lonergan used the clipping shears and appeared to be cutting something into the back of Cintron's head. During the time Cintron's hair was being cut, Respondent Lonergan and the two trustees were laughing and generally in a good mood. After the haircut was complete, Cintron walked back to his assigned housing pod in the Delta Wing where Deputy Spencer was located. At that time Deputy Spencer observed that the words "FUCK BOY" had been cut into the back of Cintron's head. Upon seeing these words cut into Cintron's head, Deputy Spencer admonished Respondent Lonergan to shave the words off Cintron's head. Respondent followed this directive, but only after taking photographs of Cintron's haircut. The Polaroid camera used by Respondent Lonergan to take the photographs was property of the Pinellas County Sheriff's Office. Respondent Lonergan was neither requested nor directed to take the photographs and they were not used by him for any official purpose. The type of haircut provided to Cintron by Respondent Lonergan failed to conform to acceptable standards of the Pinellas County Sheriff's Office and was a violation of its directive. Furthermore, the haircut was degrading and posed a potential risk to Cintron's safety. In his sworn statement given on March 27, 1995, Respondent Lonergan denied cutting the offensive words into Cintron's head. According to Respondent Lonergan, he left the hair care area for a few minutes, and upon returning, discovered what the trustees/barbers had done. Respondent Lonergan stated that at that time he observed the words "FUCK BOY" cut into the back of Cintron's head in letters one and one half to two inches high. Due to his position in the barber chair, Cintron was unable to identify whether the cutting in his head was made by Respondent Lonergan or one of the trustees. At no time during the investigation or his sworn statement did Respondent express any remorse about the incident involving Cintron. Respondent failed to apprehend the serious nature of the act committed upon Cintron. This is clearly reflected by Lonergan's own words. In his sworn statement, Lonergan said, "It was funny. I laughed. You know, it broke up the monotony of the day." Lonergan went on to say, "It said 'FUCK BOY.' I seen it. I laughed. I mean honestly, it couldn't have fit a better person. But it can't stay on there." Although Respondent denied cutting the offensive words in Clintron's head, when approached by Deputy Spencer shortly after the haircut was given, Respondent Lonergan never blamed the incident on the trustees/barbers. Detention personnel such as Respondent are required to be within sight and sound of inmates at all times. Thus, if Respondent Lonergan left the trustees/barbers alone with Cintron for five minutes, such conduct was improper. This incident is considered an unusual incident. As such, it was incumbent upon Respondent Lonergan as the deputy supervising the trustees/barbers to write a disciplinary report and initiate appropriate action against the inmate who committed this act. Respondent Lonergan never wrote either a disciplinary report on the trustee/barber he believed to be responsible for Cintron's haircut or a report about the incident. In his sworn statement, Respondent Lonergan claimed it was "nothing to be overly concerned about." Subsequent to Lonergan's termination as a detention deputy, by Final Order dated November 8, 1995, the Criminal Justice Standards and Training Commission revoked his criminal justice certification. The revocation was based on an unrelated incident involving the use of excessive force which occurred prior to February 18, 1995. Absent criminal justice certification, Respondent Lonergan is ineligible for employment as a detention deputy in Pinellas County or anywhere within the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent, William Lonergan, guilty of the conduct alleged in Counts I, II and III of the charging document and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office. DONE and ENTERED this 30th day of May, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 30th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0021 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact are accepted and incorporated except to the extent subordinate or unnecessary. These Findings were unnumbered and, therefore, a ruling on each paragraph by number was not made. COPIES FURNISHED: William Lonergan 5521 Gulfport Boulevard, South St. Petersburg, Florida 33707 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 34649-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616
Findings Of Fact Respondent has been employed by the Pinellas County Sheriff's Office for approximately nine years. For the past four years and at all times material to this proceeding, Respondent was employed by the Pinellas County Sheriff's Office as a property clerk. Respondent's duties as a property clerk included the following: (1) taking physical custody of evidence, (2) assigning physical locations in alpha- numerically numbered "bins"; (3) recording the receipt of evidence and its physical location in the computer; (4) printing and affixing to the evidence, bar codes for identification of the evidence; and (5) placing the items in the appropriate bins. Also, in her role as a property clerk, Respondent was responsible for retrieving evidence from the bins for officials of the Sheriff's Office when such evidence or property was needed for court, analysis, or other purposes. In collecting and logging in items, property clerks follow a specified routine. Each item of evidence has a unique police report number for tracking purposes in the Sheriff's Office computers. Typically, the Property Section will receive an item of evidence from a law enforcement officer with identifying information contained on an adhesive "property and evidence" label. The label includes the police report number, date and place of collection, the officer's name and payroll number, and any special instructions. The collecting officer and the property clerk sign the label when the item of evidence is received by the property clerk. After the property clerk receives the item, the property clerk enters the information into the computer and assigns the item a physical location in the Section. Once the information is entered into the computer, the property clerk will command the computer to print a small adhesive paper label which contains a bar code, location number, and brief item description. The property clerk then affixes the label to the bag containing the item. Except for guns, drugs, and oversized materials, once items are processed, they are stored in cardboard boxes (or bins) in the Property Section's warehouse. The warehouse is located behind a secure door and contains items of property or evidence. The boxes are arranged alpha-numerically. For example, there is a rack in the warehouse containing the "Y" boxes, from Y-001- upwards. The boxes are filled sequentially. The property clerks process the items at a computer terminal located behind the glass partition separating the secure areas of the Property Section from the common lobby area. Typically, there are four boxes of different sizes on the table. Usually, the property clerks place evidence boxes on a table located directly behind them. Once an item of evidence is processed, it is placed in one of the four boxes on the table. The placement of items of evidence in one of these four boxes alleviates the need for the property clerk to shuttle each individually processed item of evidence to the warehouse. Once an evidence box is full, the property clerk takes the box to the warehouse and places it in the appropriate rack. Then the property clerk removes the next consecutively numbered empty box and takes it to the table in the processing area. On or about April 10, 1995, Sgt. Wallace Colcord, Section Commander of the Property and Evidence Section, Pinellas County Sheriff's Office, was notified by the supervisor of the midnight shift, Robert Bayer, of inquiries regarding missing pieces of property. Essentially, in looking for an item of evidence, a property clerk had failed to locate an item of evidence for a forensic technician. In this instance, the computer indicated that the item was located in a certain bin in the warehouse, but upon a search of the designated bin, the property could not be located. Based upon his investigation, Supervisor Bayer determined that the original bar codes indicated that the evidence had been initially processed by Property Clerk Betty Chandler. Bayer spoke with Chandler regarding the missing item and directed her to locate the property. After spending the entire weekend looking for the missing item of evidence, Chandler located the initial missing item as well as several others that had been relocated. What Chandler discovered were items that were mislocated and had new bar codes affixed over the original bar codes prepared by Chandler. However, it was determined that the computer entry for the items showed the original location. During the course of this investigation, it was discovered that seven items of evidence had been mislocated in this manner. The bar code printing machine maintains a continuous ribbon which was able to be examined. Through such examination, it was determined that the new bar codes on the mislocated items had been printed on the evening shift of April 1, 1995, during the time that only Respondent was on duty. On or about April 24, Sgt. Colcord and Richard Roberts, Respondent's immediate supervisor, met with Respondent Styers regarding the mislocation of items that occurred during her shift on April 1, 1995. Respondent initially indicated that she had heard something about the problem. Sgt. Colcord presented to Respondent two items of property which had been mislocated, two inmate knives. He then directed Respondent to inspect the items, the labels and the bar codes and asked her if she had anything to do with those items. Respondent denied knowing about or having anything to do with the items. After being told that it had been determined that the bar code ribbons indicated that she had printed the "new bar codes" for the two inmate knives, Respondent changed her story. Respondent stated that she had been working on a relocation to an "L" box in the presence of her husband and eight-year old daughter, who had come to the office to have dinner with her. She indicated that her daughter must have used the computer and mislocated the property while she and her husband were outside smoking. Sgt. Colcord then asked Respondent whether he could call her husband regarding his recollection of the events of April 1, 1995. Within a short time, Sgt. Colcord spoke to Respondent's husband by telephone regarding his recollection of the events. In this conversation, Mr. Styers did not recall that he and Respondent ever left their daughter in the Property Section Office alone. Also, Mr. Styers indicated that he did not believe that, without supervision, his daughter had the computer skills necessary to make the entries required to relocate property or evidence. After the telephone discussion with Mr. Styers, Sgt. Colcord and Roberts resumed their interview with Respondent. After learning that her husband's version of the events conflicted with hers, Respondent changed her story. Respondent then indicated that she had not left her daughter alone in the secure area of the Property Section. Respondent indicated that her daughter was interested in the "stickers" and based on her daughter's interest, Respondent showed her daughter how locations were done. According to Respondent, in demonstrating to her daughter how the labels were printed, Respondent took several items of property that were laying out on the counter and, in the computer, changed the location of the items, printed out the new labels showing the new location, and affixed these labels to the items of property. According to Respondent, she then went back to the computer and returned each item to its original location, but forgot to print corresponding stickers and "inadvertently" took these items and placed them in the bins as indicated on the stickers. Respondent Styers acknowledged making these mistakes, but indicated that the errors were accidental or inadvertent. Most of the items of evidence mislocated by Respondent had been originally processed by Property Clerk Chandler. At the time of the incident, both Chandler and Respondent were eligible for a promotion to a position soon to be vacated by the retirement of Supervisor Bayer. By creating the appearance of mistakes on the part of Chandler with regard to the handling of evidence, Chandler's promotional opportunities would be negatively impacted. Based on his conclusion that Respondent had been untruthful during the investigation and on her actions of mislocating property, Sgt. Colcord referred the matter to the Administrative Inquiry Division (AID) of the Sheriff's Office. During this investigation, Respondent was interviewed by agents of the Internal Affairs Section of the Pinellas County Sheriff's Office. At that time, Respondent told investigators that on the evening of April 1, 1995, she was demonstrating to her daughter how items were relocated both physically and through bar code changes in the computer. According to Respondent, she thought that she had returned the items used in the demonstration to their appropriate computer locations and had properly bar coded the items. During these interviews, Respondent again admitted that she was responsible for the errors but stated that the errors were simply mistakes and were not made intentionally. After completing its investigation, the AID presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and sustained the complaint. Specifically, Styers was charged with violations of four rules of the Pinellas County Sheriff's Office. The charges involve allegations that Respondent violated the following rules and regulations of the Pinellas County Sheriff's Office: (1) C-1,V.A,6,(006), relating to truthfulness; (2) C-1,V,A,14c.,(016), relating to conduct unbecoming a member of the agency; (3) C-1,V,C,5,(064), relating to performance of duty; and (4) C-1,V,C,19,(082), relating to the care, custody, and control of property and evidence. Pursuant to General Order B-15, violation of the rules cited above relating to truthfulness and conduct unbecoming a member of the agency are considered Level Five violations. Violations under the rules related to performance of duty and the care, custody, and control of evidence and property are considered Level Three violations. Under the Pinellas County Sheriff's Office Guidelines (Guidelines), a sustained finding of two Level Five violations is the basis for assigning sixty disciplinary points. A sustained violation of two Level Three violations is the basis for assigning twenty-five disciplinary points. The Sheriff's Office General Order B-15 does not contain a disciplinary range for a total point award of eighty-five points. However, consistent with the established Guidelines, the Chain-of-Command Board adjusted Respondent's total disciplinary point award at seventy-five points. For seventy-five (75) total points, the discipline imposed may range from ten days suspension to termination. Based on its findings, the Chain-of-Command Board recommended that Respondent be terminated. Petitioner concurred with the recommendation of the Chain-of-Command Board and terminated Respondent from her position as property clerk with the Pinellas County Sheriff's Office. Prior to the incident in this case, Respondent has not been the subject of an administrative investigation or any disciplinary action by the Pinellas County Sheriff's Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent guilty of the conduct alleged in Counts I, II, III, and IV of the charging document and upholding Respondent's termination from employment as a property clerk with the Pinellas County Sheriff's Office. DONE and ENTERED this 10th day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0022 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted. Accepted and incorporated. Accepted. 7.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted. 14.-34. Accepted and incorporated to the extent not subordinate or unnecessary. 35. First sentence accepted and incorporated. Remainder of paragraph rejected as argument. 36.-41. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. 4.-6. Accepted and incorporated. 7. Accepted in part. Reject characterization of interview as "informal discussion" and statement that Respondent was not informed of the nature of the mislocation of items. 8.-9. Accepted and incorporated to extent not subordinate or unnecessary Accepted and incorporated to extent not subordinate or unnecessary. Reject characterization of discussion as "informal interview." Accepted and incorporated. Accepted except phrase "no evidence of such was presented" is rejected as not supported by the record. First sentence accepted and incorporated. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted. First two sentences accepted. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted and incorporated. Rejected as argument and conclusions of law. First two sentences and last sentence accepted. Remainder of paragraph rejected as argument. Accepted and incorporated to extent not subordinate or unnecessary. 20.-23. Rejected as irrelevant and immaterial. 24. Accepted. COPIES FURNISHED: James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Joseph M. Ciarciaglino, Esquire CIARCIAGLINO AND COYLE, P.A. 200 Mirror Lake Drive St. Petersburg, Florida 33701 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
The Issue Whether the Pinellas County Sheriff's Office (PCSO or Petitioner) properly terminated Respondent, Richard Stotts, from his employment as a deputy sheriff for engaging in conduct that violated Petitioner's General Order 3-1.1, Rule and Regulation 5.15, regarding the Custody of Arrestees/Prisoners.
Findings Of Fact Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri's responsibilities include providing law enforcement services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to have violated PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 12 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Order 13-3 requires that PCSO members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person. At the time of the events in issue in this case, Captain David Danzig (then a Lieutenant) was assigned to the PCSO Administrative Investigations Division. Sergeant Deanna Carey is assigned to the PCSO Administrative Investigations Division. Sergeant Christina Cuttitta is assigned to the PCSO Administrative Investigations Division. Sergeants Carey and Cuttitta investigated the complaint of misconduct that was filed against Respondent on or about June 11, 2013. The complaint of misconduct alleged that on May 8, 2013, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. At the Administrative Review Board (ARB) hearing, Respondent admitted that his use of force on the inmate was not justified because it did not meet the criteria for use of force. PCSO General Order 10-2 covers discipline and ranks certain offenses. This General Order ranks offenses from Level 1 to Level 5. A Level 5 offense is the most severe. A Level 1 offense is the least severe. Further, this General Order sets forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the violation admitted before the ARB in Respondent's case was 50. Respondent had five carryover points from prior discipline. Under PCSO General Order 10-2, 55 points reverts to 50 points. Under PCSO General Order 10-2, the range of discipline for a 50-point violation is a minimum five-day suspension to termination. Sheriff Gualtieri terminated Respondent from his employment with PCSO effective 1200 hours on July 29, 2013. Exhibit 13 is a series of six video clips taken from various angles in the intake and booking section of the Pinellas County Jail. The six video clips document Respondent's actions. Respondent was not involved in bringing the inmate into the intake/booking area. The inmate, who was yelling obscenities and racial slurs, was standing on the mat to have his picture taken when Respondent left his station, approached the inmate, and proceeded to strike the inmate and take him to the floor. Respondent admitted that he used force on the inmate. Respondent admitted that the use of force on this inmate was not justified. In the past three years, two (former) deputy sheriff were terminated for Level 5 offenses. While the exact offenses involved other Level 5 offenses, the consistency in discipline is constant: termination. There was no justification for Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Richard Stotts, violated General Order 3-1.1, Rules and Regulations 5.15, and terminating his employment. DONE AND ENTERED this 12th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of November, 2013.
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied based on his criminal history.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On July 6, 2000, in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001, Petitioner was convicted of one count of "conspiracy to possess with intent to distribute cocaine" in violation of 21 U.S.C. § 846 (which crime had been committed over a period ending October 27, 1999) and sentenced to 87 months in federal prison. He was subsequently ordered to "self surrender at the facility designated by the Bureau of Prisons on August 21, 2000." On September 6, 2005, Petitioner filed with the Commission an application for licensure as a real estate sales associate. At the time he filled out his application he had not completed his federal prison sentence. The application materials he submitted revealed his conviction and sentence in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001. Having determined that Petitioner's "criminal history" constituted "grounds for denial of [Petitioner's] license application, the Commission, on February 13, 2006, issued its Notice of Intent to Deny the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 19th day of June, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2006. COPIES FURNISHED: Rolando J. Sanabria 200 East 65th Street Hialeah, Florida 33013 Thomas Barnhardt, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Nancy B. Hogan, Chairman Division of Real Estate 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of February, 2017.
The Issue Whether Respondent's license as a limited surety agent should be revoked or otherwise disciplined for the reasons alleged in the Amended Administrative Complaint.
Findings Of Fact Petitioner, Department of Insurance and Treasurer, is the agency of the State of Florida which, pursuant to Chapter 648, Florida Statutes, is vested with jurisdiction to regulate licensure of limited surety (bail bond) agents. Respondent, Edward Leon Bolding, Jr., is a licensed limited surety agent, which license is currently under suspension by emergency order issued by Petitioner on June 23, 1997. Petitioner's official licensing data reflect that Respondent, Edward Leon Bolding, Jr., is a white male, born June 26, 1953, Social Security number 265-08-1197, whose address is 13803 Lake Village Place, Tampa, Florida 33624-4414. On April 21, 1997, Edward Leon Bolding II, was charged with two counts of aggravated assault in violation of Section 784.021, Florida Statutes, a third degree felony, in Case No. 97-00004536, Criminal Division, Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The criminal information describes Edward Leon Bolding II as a white male, born June 6, 1953, Social Security number 265-08-1197. The criminal report affidavit filed in criminal Case No. 97-4536 further lists Edward Leon Bolding II with an address of 13803 Lake Village Pl. 33624. The Hillsborough County Sheriff's Office, Detention Department's arrest records for Edward Leon Bolding II describe the defendant as a white male, born June 26, 1953, Social Security number 265-08-1197, and whose address is listed as 13803 Lake VL PL, TAMPA 33624. The arrest records further list next of kin as Edward Bolding, Sr., whose relationship to Edward Leon Bolding II is father. On June 23, 1997, Petitioner filed an Emergency Order of Suspension and an Administrative Complaint against Respondent Edward Leon Bolding, Jr., alleging that Respondent was charged in Case No. 97-00004536 with two counts of aggravated assault, each a felony, in violation of Section 764.021, Florida Statutes. On July 3, 1997, Respondent Edward Leon Bolding, Jr., filed an Answer to the Administrative Complaint which admitted that Respondent was a licensed limited surety agent, born June 6, 1953, Social Security number 265-08-1197, whose address was 13803 Lake Village Place, Tampa, Florida 33624. On July 14, 1997, Edward Leon Bolding II pled guilty to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes, in the above- described Case No. 97-00004536, Criminal Division, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. On August 28, 1997, Petitioner filed an Amended Administrative Complaint alleging that Respondent Edward Leon Bolding, Jr., pled guilty to two felony counts of aggravated assault. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint which, as set forth above, denied all allegations except that Petitioner has jurisdiction over limited surety licenses. The Hillsborough County Sheriff's Office's arrest records, the criminal court records in Case No. 97-00004536 of the Thirteenth Judicial Circuit, and the Petitioner's licensure records, all identify Edward Leon Bolding II, defendant, who pled guilty in Case No. 97-00004536, and Edward Leon Bolding, Jr., Respondent in this administrative proceeding, as one and the same person.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Department of Insurance and Treasurer, enter a Final Order denying the licenses and eligibility for licensure of Respondent, Edward Leon Bolding, Jr. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998. COPIES FURNISHED: Dickson E. Kesler, Esquire Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
