The Issue Case Number 91-8116EC: Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report? Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?
Findings Of Fact The Respondents. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact). Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact). Sheriff Peel is an elected official. (Stipulated Fact). At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact). Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact). Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact). At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes. The Arrest of the Complainant. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact). At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem. Mr. Hinson's Effort to Obtain a Copy of His Arrest Record. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact). Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something". After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself. The Washington County Sheriff's Office has no written policy for handling complaints against personnel. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff. Captain Jenkins told Mr. Hinson that it would be better if he left the office. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on. Effort to Secure a Special Privilege, Benefit, or Exemption. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report dismissing Complaint No. 91-42 and Complaint No. 91-43. DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1-2. 2 3. 3 5. 4 6. 5 7. B. 1 9. 2 10. C. 1 23. Hereby accepted. Conclusion of law. D. 1 28-30. 2 29. 3 30. E. 1 13. 2 36. 3 14 and 23. 4 14-15. 5 14. 6 17 and hereby accepted. 7 See 37. 8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses. 9-10 Not supported by the weight of the evidence. 11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight. 11a-b 38. 11c 19. 11c 31 and 38. 12 20-21 13 21 and see 26. 14 27. 15 28. 16 Not relevant. 17 22. 18 22-24. 19 25. 20 See 31. 21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence. 23 33. 24 34. 25 35. See 35. See 37-40. The last three sentences are not supported by the weight of the evidence. See 25. The Respondents' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 See 11. 3 13-14. 4 15 and 17-19. 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence. See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence. See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint. See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave. 23 and hereby accepted. 10 16, 18 and 23. 11 45. 12 28-30. See 31. Hereby accepted. See 47. The last two sentences are not relevant. 16 See 24-25, 38-39 and 48. 17 42. 18 See 12. The last sentence is not supported by the weight of the evidence. 19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible. 25 41-47. The last two sentences are not supported by the weight of the evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 William E. Powers, Jr., Esquire Post Office Box 12186 Tallahassee, Florida 32317-2186 Bonnie J. Williams Executive Director Commission On Ethics The Capitol Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The Issue for consideration herein was whether the Respondent's certification as a corrections officer in Florida should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Commission, was the state agency responsible for the certification of law enforcement and corrections officers in this state, and the Respondent, Richard J. Havey was a certified law enforcement officer employed by the Indian River County Sheriff's Department. On September 5, 1990, Sgt. Alfonzio Washington, of the St. Lucie County Sheriff's Office, responded to a disturbance call at a residence on Hummingbird Lane where, reportedly, an individual was threatening to kill himself. When he arrived at the residence, Sgt. Washington saw the Respondent engaged in conversation with two sheriff's deputies. Respondent was ordering the deputies off his property. At this point, individuals identified as respondent's parents asked the deputies to leave, indicating that if they did, the Respondent would calm down. After some further discussion, Respondent did, shortly thereafter, calm down. As a courtesy to the Respondent's status as a law enforcement officer, he was not arrested even though he appeared to be under the influence of alcohol. Sgt. Washington was led to believe that at the time, the Respondent was having marital problems and was upset, and in cases of that nature, it is Sheriff's Department policy to help officers with alcohol or stress problems straighten out. He thereupon directed the other deputies to leave the area and they did. Somewhat later that same evening, Detective Robert Gregg went to the Respondent's residence in response to another disturbance call. He had been told of the previous disturbance there and was advised that weapons were present. When he arrived, shortly after Deputy Walton got there, he spoke with the complainant, Mrs. Barstow, Respondent's mother at the door. As she approached, the Respondent stepped in front of her and told the officers they had no warrant and to get off his property. The officers, however, said they were there to speak with Mrs. Barstow who was beckoning them into the house. Just as Lt. Miller came up to the door and started in, the Respondent, who was loud and belligerent, shoved him when Miller asked Respondent to move so they could speak with his mother. At this, the other officers attempted to handcuff the Respondent and when he resisted they wrestled him to the ground where they placed cuffs on his wrists behind his back. All during this time, Respondent was saying that they shouldn't have done that because he was one of them. As a result of this scuffle, Respondent sustained an abrasion to his forehead and the officers took him to Longwood Hospital for treatment. In the car, during the ride there, Respondent was still angry and kept hitting his head against the plexiglass screen between the front and rear seats. He also made some unspecified threats. After being treated for his injuries and released, Respondent was then arrested for battery on a law enforcement officer; for disorderly conduct, and for intoxication. In Gregg's opinion, based on the many drunks he has seen over his career, Respondent was intoxicated. Lt. Miller basically confirms the testimony of Detective Gregg. When he arrived at Respondent's home, the other officers were already there and he could hear the Respondent yelling. Respondent claimed he didn't call the police and because they didn't have a warrant they should leave his property. Miller saw Mrs. Barstow beckon to Deputy Walton to come into the house. As she started to enter, Respondent put up his hand to bar her and Miller told him they were going to come in to talk to Mrs. Barstow. At this, Respondent pushed out at Miller, forcing him up against the wall to the right of the door when looking out, and, reportedly took a swing at him. No other evidence was presented to confirm the attempt to strike and it is found that considered in its worst light, the evidence shows only a push of Miller by Respondent. To be sure, Miller and all the other officers were in uniform and on duty. Miller and all the other law enforcement personnel who testified indicate that the law enforcement profession is stressful - especially the job of a corrections officer such as that held by Respondent due to the concentration of difficult people with whom the officer must regularly deal. Miller supervises more than 30 individuals and over the years, has evaluated a lot of officers. Alcohol problems are not at all uncommon nor are marital problems, but most officers can cope with them and have been able to resolve them one way or another to resume productive law enforcement careers. In his opinion, a police department has an obligation to assist a troubled officer to alleviate his or her alcohol and other problems in a joint effort by both parties. If Respondent has completed a rehabilitation program and does not now drink, this would weigh in his favor. The same would be true regarding his marital problems, especially if the initiative came from him. His past record should also be taken into account if it is good. This one incident, under the circumstances here regarding Respondent's personal stress and alcohol problem, should not prevent him from continuing in law enforcement, Miller believes. Lt. Phil Redstone, the Commander of the Indian River County Sheriff's Department's Internal Affairs Division and an expert in toxicology and the effect of alcohol on the body and in officer evaluation reviewed the Respondent's case, interviewing not only Havey but also his wife and parents. He determined that before this incident, Havey had been drinking heavily because his wife had told him she was leaving him and taking the children. Added to this was the pressure of having just built a new home and the stress he was experiencing at work and as a result, he threatened to kill himself. Havey thought his wife had called the police and when they first came, the meeting was congenial. Then Respondent's parents came and he became more upset, breaking a few items at the house. When the second set of deputies came, he was by then quite upset and admitted to ordering them off his property and to obstructing their entrance to his house in response to his mother's invitation. However, Havey denied either swinging at or shoving Lt. Miller or making any threats to the officers during their transport of him to the hospital. Redstone found, as a result of his investigation, that Respondent's conduct was contrary to Department policy and the case was sent to the Department's Disciplinary Review Board for a hearing. This Board, made up of 5 Sheriff's Department employees, after hearing the evidence against the Respondent, found he did not commit a battery upon a law enforcement officer and did not resist apprehension with force. It found, however, that he was guilty of misconduct and as a result, Respondent was discharged from employment. In his letter of discharge, the Sheriff noted that if Respondent were to be found not guilty of the charges, he would be eligible for rehire. After the incident, Respondent was charged with battery on a law enforcement officer and resisting arrest with violence. He plead nolo contendere to a lesser offense of simple battery and resisting without violence and was placed on probation with adjudication of guilt withheld. He successfully completed all the terms of his probation and was released early. Redstone also found that up to the time of this incident, and since, Respondent's conduct has been exemplary. He completed the terms of the probation imposed upon him by the court and has had no other problems. He has not been employed by the Indian River County Sheriff for the past two years, but, since he has completed probation properly, he could be rehired. Redstone believes Respondent is of good character and has a good work record and that the instant situation was an isolated matter totally out of character. In fact, it was the Sheriff's Department which suggested to Respondent that he seek expungement of and sealing of court records. Taken together, Lt. Redstone concluded Respondent is fit to be a police officer now. Respondent denies having either punched or swung at any officer. He has too much respect for the profession. He admits to being very vocal and to using obscene language, but on the night in question, he was very much under the influence of alcohol and was in a rage and out of control. Nonetheless, he was not so intoxicated he can't remember what happened. This was an isolated incident. His drinking had been building up for about two months prior to this incident. He admits Officer Walton was trying to get past him into the house and he told the officers to get out because he didn't want them there. He claims, however, he kept his hands at his side because he knew if he raised them it would be taken as a hostile act. When he realized the officers would not leave, he turned to go back into the house and grabbed for the door handle. Just as he grabbed it, he found he couldn't breathe and was hit hard from behind. He fell to the ground and hit his head on the concrete. He admits to trying to cover his face but claims he did not intentionally resist being handcuffed. Respondent claims that once he was handcuffed, he walked voluntarily to the patrol car and got in. He further claims he was in the car for 30 minutes without being told he was under arrest for anything. The day after his arrest, after being incarcerated for about 6 hours, he was released and driven home by his bondsman. He voluntarily signed himself up for the 30 day alcohol program and is glad he did. He now has his drinking under control and believes he can handle his job and the other stress points now. He wants to stay in law enforcement. Mrs. Barstow describes her son as a very kind, good hearted, and reliable man who only started to have alcohol problems after close to 10 years of good service with the St. Lucie and Indian River County Sheriffs' Departments. On the night in question she was at her son's house because she had received a call that he was despondent. She knew he had been drinking and was afraid he might do something foolish. She was upset at the way the incident was allowed to progress. She had called the police to get help for her son and before she knew it, he was on the ground and injured. In conjunction with Respondent's wife, Mrs. Barstow had Respondent committed under the provision of the Baker Act to insure he got the help he needed. He spent 30 days in Harbor Shores, a rehabilitative center, and since his release has stopped drinking and attends Alcoholics Anonymous meetings once or twice a week. Respondent is still married and has 2 children. Their relationship is considered good. Respondent is known to have high moral values and is an honest individual. He liked being a law enforcement officer though it took its toll on him. The birth of his children so close to each other along with the fact that his wife works in law enforcement also created pressure. His being out of work, though he has aggressively sought other employment, has placed a financial strain on the family. Nonetheless, he has not resumed his drinking. Respondent entered his plea of nolo contendere to the charges against him because he was advised it was in his best interests to do so. His plea was based on the alleged representation that if he was convicted of no more than a misdemeanor, he'd be rehired. Had he known he would not be rehired, he would have demanded trial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered placing Respondent on probationary status for a period of one year subject to such terms and conditions as the Commission may impose. RECOMMENDED this 25th day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the word "intentionally". Accepted. - 25. Accepted. 26. & 27. Accepted and incorporated herein. & 29. Accepted and incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. Accepted and incorporated but a restatement of the evidence. - 17. All accepted and incorporated but noted to be a re- statement of the testimony. COPIES FURNISHED: Dawn Pompey, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Michael Spotts, Esquire 2400 South Federal Highway Stuart, Florida 34994 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 14898 Tallahassee, Florida 32302
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent's certification as a law enforcement officer should be suspended or revoked pursuant to Chapter 943, Florida Statutes for alleged conduct as set forth in Amended Administrative Complaint dated April 16, 1982. This proceeding was initiated by an administrative complaint issued by the Police Standards and Training Commission on May 26, 1981, alleging certain grounds under Chapter 943, Florida Statutes, for the suspension or revocation of Respondent's certification as a law enforcement officer. The case was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the case was thereafter set for hearing on September 15, 1981. Pursuant to a request for a continuance by the Petitioner, the hearing was continued and rescheduled for March 16, 1982. The case was again continued upon motion of Petitioner due to injuries sustained by its counsel. A prehearing conference was held on March 9, 1982 at which time the Criminal Justice Standards and Training Commission was substituted as the Petitioner in this proceeding, pursuant to Section 943.255, Florida Statutes. The final hearing was rescheduled for April 13, 1982. Thereafter, on March 31, 1982, L. Sanford Selvey, II, Esquire filed a Motion for Continuance based on the incapacity of Respondent's counsel, M. Howard Williams, Esquire as a result of an apparent heart attack. The motion requested that final hearing be continued until such time as Mr. Williams had recovered from his illness. The motion was granted and final hearing was cancelled by Order, dated April 7, 1982, wherein counsel for Respondent was directed to advise the Hearing Officer within thirty days as to when he anticipated medical recovery. On April 20, 1982, Petitioner filed an Amended Administrative Complaint seeking disciplinary action pursuant to subsection 943.145(3)(a), F.S. for failure to maintain qualifications for certification under subsection 943.13(4) and (7), F.S. On May 19, 1982, Petitioner filed a Motion for an Order Deeming Requests for Admissions Admitted and Amended Complaint Filed. No opposition was filed against this motion and it was granted by Order dated June 7, 1982. That Order provided that the final hearing was rescheduled for July 21, 1982, in view of the failure of counsel for Respondent to advise the Hearing Officer as to his anticipated date of medical recovery. A copy of the Order was furnished to M. Howard Williams, Esquire and L. Sanford Selvey, II, Esquire. Neither Respondent nor his counsel appeared at the final hearing on July 21, 1982. Upon inquiry by the Hearing Officer, counsel for Petitioner stated that he had previously been advised by Mr. Selvey's office that the case files of Mr. Williams had been referred by the Circuit Court to Dexter Douglas, Esquire as an inventory attorney, and that upon inquiring of Mr. Douglas' office, he was informed that two letters had been sent to Respondent informing him of the hearing date in this proceeding. Upon direction of the Hearing Officer, counsel for Petitioner again contacted Mr. Douglas' office to ascertain if any response to the letters had been made by Respondent. Counsel was advised that letters, dated June 29 and June 30, 1982, had been sent to Respondent, advising him of the date of hearing and of the need to obtain representation, but no response was received. Based upon these representations, and under all the circumstances, it was determined that adequate notice of the hearing had been provided Respondent, and Petitioner was permitted to proceed with presentation of its case as an uncontested proceeding. Petitioner presented the testimony of four witnesses and submitted four exhibits in evidence.
Findings Of Fact Respondent, Earl Junior Beagles, was first employed with the Tallahassee Police Department in January, 1967. He received certification as a "grandfathered" law enforcement officer in June of 1967. In 1979, he was a sergeant in charge of the Vice and Narcotics unit of the Police Department. (Testimony of Tucker, Westfall) In November or December of 1979, Respondent obtained $200 from the Police Department informant fund upon authorization of Police Chief Melvin Tucker. At the time, Respondent told Chief Tucker that he wanted the funds to compromise a prostitute in order to obtain access to a local drug dealer. In March, 1980, one Patricia Dalton made allegations to police officials that on December 19, 1979, Respondent had coerced her into having sexual relations with him. Specifically, she told police investigators that she was a prostitute and had previously received a telephone call from someone identifying himself as "Bill", and that they arranged to meet at a local motel. At that meeting in the motel room, they arrived at an understanding that she would furnish her services for $150. She produced a small portion of cocaine, at which point Respondent placed her under arrest for drug possession and prostitution whereupon she commenced to cry, but Respondent told her that he was sure they could work things out and make a deal. Respondent turned the cocaine over to his partner, Officer Lewis Donaldson, and told him that he would take Miss Dalton home. She alleged that she departed with Respondent and that later, at his request, she registered at another hotel under a fictitious name where he coerced her into having sexual intercourse and fellatio with him. (Testimony of Tucker, Coe) Police investigators verified the fact that Miss Dalton had been transported in a taxicab to the motel where she had allegedly met Respondent on December 19, 1979, and also that she had registered under a fictitious name at the second motel on that date. As part of the investigation, Miss Dalton was equipped with a "body wire" to enable the investigators to monitor a conversation that she had with Respondent at the Greyhound Bus Station in Tallahassee. Although the investigators observed Miss Dalton enter the bus station, they did not personally see Respondent from their monitoring location nearby. However, they were able to recognize his voice from the tape recording made of the conversation. Respondent made admissions during the conversation which gave credence to Dalton's contentions that he had had prior sexual relations with her and had not pursued criminal charges against her. A transcript of the conversation shows that he made the following statements to her: "No, you're unarrested, no charges, forget it, it's over. Call it washed clean." and "For God's sake, don't mention my deal about dropping those God-damn charges". Police records reflect that Respondent never initiated charges against Patricia Dalton and that he returned the entire amount of $200 which he had obtained from the informant fund. (Testimony of Coe, Runo, Petitioner's Exhibit 2) As a result of the investigation, Respondent was indicted for sexual battery, extortion, and bribery in the Leon County Circuit Court on April 23, 1980. On that date, Chief Tucker advised Respondent of the Dalton complaint, but Respondent denied all of her allegations of misconduct. Respondent was then suspended from his employment with the Police force pending disposition of the criminal charges. (Testimony of Tucker, Petitioner's Exhibits 1, 4) On October 17, 1980, Respondent entered a plea of nolo contendere to one count of unlawful compensation (Section 838.016, F.S.) which is a third degree felony, and one count of simple assault which is a misdemeanor. Adjudication of guilt and imposition of sentence was withheld and he was placed on probation for a period of two years. In the opinion of Chief Tucker and Lieutenant Thomas R. Coe, Jr. of the Tallahassee Police Department, Respondent's actions in connection with the Dalton incident did not meet the required standards of moral character required for certification as a law enforcement officer. After the indictment, Respondent was discharged from his employment with the Department. (Testimony of Tucker, Coe, Petitioner's Exhibit 1) Although hearsay testimony was received from a police investigator concerning another incident of sexual misconduct involving another alleged prostitute in 1977, insufficient competent evidence was received upon which to base findings of fact. (Testimony of Runo)
Recommendation That the Criminal Justice Standards and Training Commission issue a final order revoking the certification of Respondent as a law enforcement officer. DONE and ENTERED this 30 day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 30th day of August, 1982. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Earl Junior Beagles Star Route, Box 506B Tallahassee, Florida 32304 Sheriff Don R. Moreland Chairman Criminal Justice Standards and Training Commission Marion County Sheriff's Department P. O. Box 1987 Ocala, Florida 32670 M. Howard Williams, Esquire Post Office Box 382 Tallahassee, Florida 32302 William S. Westfall, Jr., Bureau Chief Bureau of Standards Division of Criminal Justice Standards & Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times material to this proceeding; Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission (Commission). Respondent was issued certificate number 99-002310 by the Commission on October 27, 1978. On January 5, 1983, Respondent, then the duly elected Sheriff of Flagler County, Florida, was suspended from the Office of Sheriff of Flagler County, Florida, by Executive Order 83-1 issued by Bob Graham Governor of the State of Florida (Governor). The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offenses of misfeasance, malfeasance neglect of duty and/or incompetence. On March 23, 1983, Executive Order 83-1 was amended by Executive Order 83-40 enlarging the grounds upon which the suspension was initially based and continued Respondent's suspension from office as Sheriff of Flagler County, Florida. The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offense of misfeasance, malfeasance, neglect of duty, incompetence and/or commission of a felony. During May 1983, a hearing upon the allegations of Executive Order 83-1 and 83-40 was conducted by Special Master D. Stephens Kahn (Special Master) appointed by the Senate President on January 13, 1983. The Respondent was present and represented by counsel at the hearing. On June 1, 1983, the Report and Recommendation of Special Master was filed with the Florida Senate (Senate) setting forth the Special Master's findings of fact (findings) and sustained nine (9) out of twelve (12) charges or subcharges brought by the Governor. Based on those findings, the Special Master recommended, among other things, that Respondent be removed from the Office of Sheriff of Flagler County, Florida. On June 2, 1983, the Report and Recommendation of the Special Master was received and approved by the Senate. On the same day the Senate voted to remove the Respondent from the Office of Sheriff of Flagler County, Florida. The Senate's Report and Order was filed on June 3, 1983. Other than the findings of the Special Master, there was no evidence presented at the hearing to show that Respondent had committed the acts alleged by the Governor in his Executive Order of suspension or those acts which formed the basis for the Senate's action in removing Respondent from office.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations as charged in the Second Amended Administrative Complaint and that the Second Amended Administrative Complaint be DISMISSED. Respectfully submitted and entered this 17th day of July 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0013 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact submitted by the Petitioner Covered in the preliminary material. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. The first (1st) two (2) sentences of subparagraph 1 adopted in Finding of Fact 4. The third (3rd) sentence of subparagraph 1 rejected as immaterial. The second (2nd) and third (3rd) subparagraphs adopted in Finding of Fact 5. A Subparagraphs 4(a-i) are rejected as hearsay uncorroborated by any substantial competent evidence that has no probative value and alone are insufficient to establish a finding. Adopted in Finding of Fact 5 but modified. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Rulings on Proposed Findings of Fact Submitted by the Respondent 1-8, 11 and 12. Rejected as legal argument. 9 and 10. Rejected as immaterial and irrelevant. COPIES FURNISHED: Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl O. McLaughlin Criminal Justice Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daniel H. Bennett Post Office Box 19493 Bunnell, Florida 32010
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.
