Findings Of Fact At all times relevant hereto the Respondent was licensed as a Class "D" Security Officer and held license No. D92-09970. On April 7, 1993 Detective Janice Shine, a deputy sheriff with the Pinellas County Sheriff's office, left her office around 11:00 p.m. driving a 1984 Oldsmobile which was unmarked but not fully equipped to serve as a police vehicle. This was a spare vehicle owned by the Pinellas County Sheriff's office. While Detective Shine was stopped at a stoplight on Ulmerton Road in the left hand lane, Respondent pulled alongside of her vehicle in the center lane. When the light changed, both cars proceeded straight ahead. Respondent pulled in front of Shine's vehicle and slowed down. Shine passed him on the right, and when she did, Respondent indicated for her to pull over to the side of the road. Shine testified that Respondent told her that he was a police officer and that she was speeding. Shine replied that she was a deputy sheriff and for him to grow up. Respondent continued to follow Shine and motioned for her to pull off the road. Detective Shine used her radio to call for back up, and further down Ulmerton Road she did pull off the road. Respondent pulled up behind her. Detective Shine emerged from her car with her sheriff's badge in her hand and proceeded toward Respondent's car. Respondent got out of his car with flashlight in hand and accused Detective Shine of driving while intoxicated. Shortly after these two vehicles stopped, approximately four cars carrying deputy sheriffs and/or police pulled up at the scene. Respondent repeated his accusations against Detective Shine and requested she be given a sobriety test. The officers talked to Shine out of the presence of Respondent, then arrested Respondent on charges of impersonating a police officer. At this time Respondent was dressed in a khaki shirt which was part of his security officer's uniform, with the name of the company for whom he was working on the front of the shirt and an American flag on the shoulder. Respondent was subsequently tried in the criminal court in Pinellas County on charges of falsely impersonating an officer and was found not guilty.
Recommendation It is RECOMMENDED that the Administrative Complaint filed against George Stephanou be dismissed. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Florida. K. N. AYERS 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 8th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH NO. 93-3926 Proposed findings submitted by Petitioner are accepted except: (2) Latter part of sentence starting with "told her". (6) Rejected that Respondent told Shine he was a police officer. (10) Rejected that Respondent had emergency lights. Detective Shine testified he turned on and off his high beams. (12) Rejected that Respondent used his flashlight in an intimidating manner. COPIES FURNISHED: Henri Cawthon, Esquire Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 George E. Stephanou 24195 U.S. 19 North, Lot 444 Clearwater, Florida 34623 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issued involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne. The factual grounds stated in the Statement of Particulars for the action taken was as follows: Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident. The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail. Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed. Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled. Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident. The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and no passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
Findings Of Fact J. T. Byrne is a Florida Highway Patrol trooper and has permanent career service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing. On June 5, 1976, at approximately 1:15 A.M., Trooper J. T. Byrne was dispatched to an accident scene on FTU Boulevard approximately one tenth of a mile west of its intersection with State Road 520. Upon his arrival at the scene there were Florida Technological University police, sheriff's deputies, and emergency vehicles already present. One of the enforcement officers present advised Byrne that there had been a fatality. Byrne checked the victim then called his dispatcher to advise the dispatcher that a medical examiner and a Florida Highway Patrol homicide investigator would be needed. Immediately thereafter, the driver of the car involved, Edward Romfh Kirkland, Jr., was introduced to Byrne by one of the enforcement officers at the scene who gave Kirkland, Jr.'s driver license to Byrne. Byrne spoke with Kirkland, Jr., and noted his appearance. Kirkland, Jr. was unsteady on his feet, emotionally upset and was crying. Byrne smelled alcoholic beverage on Kirkland, Jr.'s breath. Byrne placed Kirkland in his patrol car and commenced his accident investigation. The accident investigation included interviews with the victim's brother, an eyewitness observer, and Kirkland, Jr. Byrne also prepared a sketch and a verbal description of the scene. Byrne administered a field sobriety to Kirkland, Jr. after conducting his accident investigation. Kirkland, Jr. performed these tests in a manner which would indicate that his faculties were not impaired. Byrne, with the assistance of other officers, obtained the name of only one eyewitness although inquiries were made of many observers at the scene. At approximately 1:45 A.M. Trooper Fuller Baker, Homicide investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired. The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents. Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene and took him to the sheriff's Department to conduct a breathalyzer examination. In route to the Sheriff's Department, Kirkland, Jr. told Byrne that he had been assaulted and knocked unconscious by victim's brother following the accident and prior to Byrne's arrival at the scene. Arriving at the Sheriff's Department, Byrne was met by Edward Rohmf Kirkland, Sr., an attorney at law, who was present representing his son. When Kirkland, Sr. learned that his son was going to be given a breathalyzer examination, he indicated that he wanted to have a blood analysis done on his son. Byrne indicated to Kirkland, Sr. that such a test would be desirable, and he would permit such a test to be performed. At this time, Trooper Baker arrived at the Sheriff's Department and spoke with Byrne outside the hearing of the Kirklands. Baker asked Byrne with what offense he had charged Kirkland, Jr. Byrne stated that he had arrested him for driving while under the influence. They discussed the condition of Kirkland, Jr., and both agreed that he did not appear to have his faculties impaired. Byrne was of the opinion, however, that a test should be run as a precaution and Kirkland, Jr. charged if the test was positive. As the accident investigator, Byrne did not feel he should give the test because for him to do so could have created problems concerning the admissibility of the evidence at a subsequent criminal prosecution. Baker concurred in Byrne's analysis, but Baker did not feel that the condition of Kirkland, Jr. was such to form probable cause for administration of a breathalyzer examination. Baker suggested that Byrne charge Kirkland, Jr. with a charge which could be proven, driving too fast for conditions, and release him to his father, an attorney, who had indicated he was going to have a voluntary blood analysis performed. Subsequent to their conversation, Byrne charged Kirkland with the civil charge of driving too fast for conditions and released Kirkland, Jr. At that time Byrne left the Sheriff's Department, leaving Kirkland, Jr. and his father in the presence of Trooper Baker. Byrne thought that Baker would follow through and accompany the Kirklands to the blood analysis as a part of the homicide investigation. Baker did not follow through with the examination. Subsequently, the victim's father was the source of derogatory comments regarding the handling of the investigation of his daughter's death. Because of this, the matter was presented to the Orange County Grand Jury, whose report indicated insufficient evidence existed to prosecute Edward Romfh Kirkland, Jr., but which report was critical of the handling of the homicide investigation. Both Troopers Byrne and Baker received copies of the report and attached Court Order. Byrne and his immediate supervisor, Sergeant W. E. Sunberg, Jr., discussed the Grand Jury's report and the criticisms therein. Subsequently both Baker and Byrne received suspensions by the Florida Highway Patrol. With regard to the allegation that Trooper Byrne failed to advise the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge the Grand Jury's criticism, the Hearing Officer finds that substantial and competent evidence indicates that Trooper Byrne's immediate supervisor was advised of the criticisms of the Grand Jury. In addition, the Court's directions concerning a Motion to Repress or expunge the report of the Grand Jury does not create any right in the Department to repress or expunge any portion of the report. Further, there was no criticism levied against Trooper Byrne in the Grand Jury report. Regarding the allegation that Trooper Byrne failed to notify the dispatcher to advise a medical examiner of the necessity of blood alcohol testing, the memorandum upon which this requirement is based was not introduced into evidence. Testimony regarding the requirements created by the memorandum was received. The requirements of such a notification would only be applicable in a factual situation in which a victim or suspect would be unable to take a breathalyzer examination. The facts indicate that there was nothing about the victim's condition which would warrant a test for blood alcohol content, and Kirkland, Jr. was able to take the breathalyzer. Therefore, the factual situation did not necessitate Trooper Byrne advising the medical examiner of the possibility of blood analysis testing. The uncontroverted testimony of Byrne was that he and other officers in attendance at the scene did interview many observers at the scene and could only discover the one witness to the accident. The basis for the allegation that Byrne failed to obtain the names of all of the witnesses was based upon the fact that the victim's father hired a private investigator who later discovered two additional witnesses. The evidence, however, indicates that it took several minutes for Byrne to arrive at the accident scene and there is no evidence that the witnesses later discovered by the private investigator were at the accident scene when Byrne arrived. A comparison of Exhibit 4, the first diagram prepared by Byrne the night of the accident, with Exhibit 5, the diagram prepared by Byrne several months later, indicates several differences. Clearly, the shape of the road, the left turn lane at the intersection, and the position of the speed sign were immaterial to the accident. Both diagrams depict essentially the same salient facts, to wit: the location of the initial impact, the path of the vehicle, the final location of the victim, and the fact the vehicle completed its passing after entering the no passing zone. The initial diagram was supplemented by a written description and measurements which are a part of the accident investigation report. The initial diagram was sufficiently accurate for the purposes of that report when considered with Byrne's written report and measurements. There is no requirement that the diagram of an accident investigation report be a scaled drawing. In the absence of such a requirement, the diagram must be considered sufficient if it contains that data necessary to give the reader an accurate depiction of the events before, during, and after the accident. Byrne's original diagram, together with the written narrative which is part of the diagram, presented this information. While Byrne's second diagram is more detailed, his first diagram is not sufficiently inaccurate to mislead or misstate the actual operative facts. Regarding the allegations that Byrne was negligent in the blood alcohol testing of Kirkland, Jr., it should be noted that Byrne arrived on the scene at 1:15 A.M. and began his actual accident investigation at approximately 1:45 A.M. He was at the Sheriff's Department with Kirkland at approximately 2:45 to 3:00 A.M. based upon the testimony that Trooper Byrne left the Sheriff's Department at 3:17 A.M. One and one half hours to investigate an accident and transport Kirkland, Jr. to the Sheriff's Department does not appear to be an excessive delay. Regarding the allegation that Byrne failed to follow through and supervise and control the blood alcohol testing of Kirkland, Jr., although Byrne had arrested Kirkland, Jr. at the scene for driving while under the influence of alcoholic beverages, it was both Byrne's and Baker's opinion that they had no probable cause for administration of chemical blood tests. Baker was of the opinion that Kirkland, Jr. had not been driving under the influence of alcoholic beverages, while Byrne, having initially based his opinion that Kirkland was driving under the influence upon the smell of alcoholic beverages on Kirkland's breath and Kirkland's unsteadiness on his feet, changed that opinion based upon the additional information obtained from Kirkland, Jr. while transporting him to the Sheriff's Department that Kirkland, Jr. had been knocked unconscious by the victim's brother. Both officers had administered field sobriety tests to Kirkland, Jr., whose performance on the tests indicated that his faculties were not impaired. Further, the testimony of both troopers and two state's attorneys indicated that although Byrne was the arresting officer and the officer who transported Kirkland to the Sheriff's Department, Byrne was not the preferred officer to administer chemical blood tests to Kirkland, Jr. The administration of such tests by the officer in charge of the accident investigation creates admissibility problems regarding any evidence derived from the testing period (See Conclusions of Law below.) Trooper Baker, as the homicide investigator present, would have been the preferred officer to give and supervise the test. Regarding the allegation that Trooper Byrne released Kirkland, Jr. into the custody of his father, this was not demonstrated. Kirkland, Jr. is over 21 years of age and therefore was not released into anyone's custody but was released on his own recognizance in accordance with the prevailing procedures in Orange County. Although his father was present at the Sheriff's Department, it is clear that he was present in his capacity as his son's attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission not sustain the disciplinary action taken by the agency. DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977. COPIES FURNISHED: Ed Strickland, Esquire Kirkman Building Tallahassee, Florida 32304 William R. Sharpe, Esquire 29 East Pine Street Orlando, Florida 32801 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 =================================================================
Findings Of Fact The facts in this case are not in dispute, however, the Petitioner appealed the agency's act of suspending him for a period of eight hours without pay based on his contention that the suspension "is excessive". On March 2, 1978, while on duty assigned as a Highway Accident Investigator, the Petitioner investigated an accident which occurred at Kelly's Shell Station which is located on State Road 207 and Interstate 95 in St. Augustine, Florida. After completing his investigation, the Petitioner in an attempt to leave the scene of the accident, struck a sign post with the right front bumper of his car, causing damage to his vehicle in the amount of approximately $728.00. There is no dispute but that the accident was determined to be the fault of the Petitioner. Following the completion of an accident report and an investigation of the matter, Captain Hodges, who is assigned to the St. Augustine Office recommended the issuance of a letter of written reprimand to the Petitioner, however, upon review by the headquarters office, the Petitioner was suspended for a period of one day because in the opinion of the reviewing team, such a penalty was warranted in view of circumstances which prompted the accident and the severity of the damage. During the hearing it was further revealed that there were no view obstructions and the weather was clear and dry. As stated, there is little dispute factually in this case, however, the Petitioner contends that there were no acts of gross negligence on his part; this was his first accident wherein he was charged with fault, and that other troopers involved in similar accidents had only received letters of reprimand. Chapter 22A-10, Florida Administrative Code authorizes the Respondent, Department of Highway Safety and Motor Vehicles to discipline employees for violations of its rules and regulations. In view thereof, and inasmuch as the suspension herein was issued pursuant to the guides of Chapter 22A-10 and the admissions of Petitioner that he was at fault in causing the accident to which he was suspended, there is competent and substantial evidence to sustain the action of the Respondent in suspending the Petitioner for a period of eight hours without pay. This appears to be an area of discretion which does not lie within the authority of the Hearing Officer to second guess the wisdom of the Respondent, or to attempt to determine whether or not the suspension was "excessive". I shall therefore recommend that the agency action be sustained.
Recommendation Based on the foregoing Findings of Fact and Conclusions I hereby recommend that the action of the agency suspending the Petitioner for a period of eight hours without pay be SUSTSAINED. ENTERED this 27th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1978. COPIES FURNISHED: Ronald Cantrell Rt. 4, Box 241EZ-1 St. Augustine, Florida 32084 Major John Hicks, Deputy Director Dept. of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issues to be determined in this case are whether Respondent, Deputy John Bradshaw, engaged in conduct prohibited by the rules promulgated by Petitioner, Pinellas County Sheriff’s Office, and, if so, whether the disciplinary action taken against Deputy Bradshaw was consistent with action taken against other members of the Sheriff’s Office.
Findings Of Fact At all times relevant to this case, John Bradshaw was a deputy employed by the Pinellas County Sheriff’s Office. The Pursuit On September 22, 2006, one or more deputies were “staking out” an area along Ulmerton Road in Largo where burglaries of vehicles had been reported. At about 1:30 a.m., a suspicious vehicle was observed in the area by Sgt. Lawrence Palombo. When the driver of the vehicle began to drive recklessly (traveling southbound in a northbound lane), Sgt. Palombo decided to make a traffic stop of the vehicle. He called other deputies for assistance before doing so. When Sgt. Palombo turned on his flashing lights to make the traffic stop, the suspicious vehicle slowed, pulled to the right as if to stop, but then sped away. A pursuit of the vehicle was immediately initiated. The testimony of the deputies involved in the pursuit differed as to where the pursuit began, but the exact location is not material in this case. The pursuit started on 49th Street somewhere between 110th Avenue and 126th Avenue and traveled south on 49th Street. Sheriff’s Office regulations limit the number of Sheriff’s Office cruisers that may participate in a pursuit to three. The three cruisers involved in this pursuit were driven by Sgt. Palombo, Deputy Bradshaw and Deputy Jeff Martin. The pursuit reached speeds of 85 or 90 mph. It passed through a number of intersections along 49th Street that had traffic lights. At some of these intersections, the traffic light was red for southbound traffic, but the deputies proceeded through the intersections on the red lights. As the pursuit approached the intersection of 49th Street and 38th Avenue, the order in which the pursuing deputies were aligned behind the suspect vehicle was Sgt. Palombo in the lead, then Deputy Bradshaw, and Deputy Martin last. Deputy Bradshaw’s cruiser was a 2005 Crown Victoria 4-door sedan. All the cruisers had their lights flashing. The record shows that Sgt. Palombo had his siren on. The record does not show whether the other two deputies in the pursuit were using their sirens, but it was not a disputed factual issue and it would be reasonable to infer that all three deputies were using their sirens. The intersection at 38th Avenue has four southbound lanes, including a left turn only lane, two through only lanes, and a far right lane which can be used for through traffic or to turn right. Sgt. Palombo testified that, as the pursuit neared the intersection, he saw “vehicles . . . stopped at the intersection,” and “we came up on cars that were at that intersection going in the same direction.” These “civilian” vehicles must have been stopped in the two right lanes because its was undisputed that Sgt. Palombo was in the left turn lane and Deputy Bradshaw was in the lane next to Sgt. Palombo, the leftmost through lane. The suspect vehicle proceeded through the intersection at 38th Avenue. Sgt. Palombo slowed to a stop in the left turn lane. He thinks he stopped his cruiser at the “stop bar” or “maybe in the crosswalk.” The Crash Grace Umali, driving a 2002 Toyota 4-Runner was traveling westbound (coming from the deputies’ left) through the intersection on a green light. Her three-year-old son was also in the vehicle. Sgt. Palombo, stopped in the left turn lane, saw the Umali vehicle come from his left, pass in front of him and then collide with Deputy Bradshaw’s cruiser. A subsequent crash scene investigation found no pre-crash skid marks, which indicates that neither driver braked hard before impact. There was no dispute that the collision occurred in the leftmost, southbound through lane, only about one car length beyond the “stop bar” where vehicles must stop for a red light. Following the initial impact, Deputy Bradshaw’s vehicle continued south across the intersection and hit a traffic light pole at the southwest corner of the intersection. The cruiser caught fire as a result of the crash. The Umali vehicle also traveled south across the intersection after impact, rolled over, and came to rest upside down along the western curb of 49th Street, beyond Deputy Bradshaw’s cruiser. Both vehicles were “totaled.” The crash resulted in Deputy Bradshaw suffering a broken leg and minor cuts and bruises. Ms. Umali and her son also suffered injuries, but the record does not identify their injuries. Evidence was presented on the disputed factual issue of which vehicle struck the other. Deputy Bradshaw contends that the Umali vehicle struck him, somewhere near his left front wheel. Deputy Martin, who was 50 to 70 yards behind Deputy Bradshaw when the crash occurred, said it appeared to him that the Umali vehicle struck Deputy Bradshaw. However, Deputy Linda Willett, who was a member of the Major Accident Investigation Team (MAIT) that responded to the Bradshaw crash, said the crash scene investigation, primarily the physical evidence of damage on each vehicle, made her conclude that Deputy Bradshaw struck the Umali vehicle. She could not recall seeing any damage to the front of the Umali vehicle. Captain Nicholas Lazaris, the leader of the MAIT Team, and Lt. Timothy Pellela, another MAIT Team member, also concluded that Deputy Bradshaw had struck the Umali vehicle. The parties placed more importance on this factual dispute then it warranted because the difference between the two scenarios is a fraction of a second.1 However, the more persuasive evidence is from the crash scene investigation –- indicating that Deputy Bradshaw struck the Umali vehicle -- because the vehicle damage evidence is more objective and reliable than human memory of split-second events during stressful circumstances. The Speed of the Vehicles The most important factual dispute in this case was how fast Deputy Bradshaw was going when the crash occurred. Deputy Bradshaw claims he slowed to about 35 mph. Sgt. Palombo estimated Deputy Bradshaw’s speed was 40 mph. However, at the hearing, Sgt. Palombo stated in response to a question about how far Deputy Bradshaw was behind him, “To be honest with you, you really don’t want me to know the answer to that question.” His clear meaning was that his attention needed to be elsewhere. This and other testimony by Sgt. Palombo shows his attention was directed forward, as would be expected. Therefore, Sgt. Palombo’s estimate of Deputy Bradshaw’s speed at the moment of the crash is not reliable. Lt. Pelella was an alternate on the MAIT Team that was called to respond to the crash. Lt. Pelella was assigned both on-scene investigation and crash reconstruction duties. In crash reconstruction, a conservation of linear momentum formula is used, which takes into account factors such as the point of impact, the distance the vehicles traveled after impact, their weight, and drag, to arrive at an estimate of the speed of the vehicles at the moment of impact. Applying this methodology, Lt. Pelella estimated that Deputy Bradshaw was traveling at about 57 mph and Ms. Umali was traveling at about 42 mph when the collision occurred. Deputy Bradshaw attempted to cast doubt on the credibility of Lt. Pelella’s estimate of vehicle speeds by showing that the traffic crash report prepared by Deputy Willett the day after the crash included the same speeds for the vehicles, 57 mph and 42 mph, that Lt. Pelella came up with two months later using the conservation of linear momentum formula. Deputy Willett testified that she did not come up with the vehicle speed information for her report; that it had to have been provided by another member of the MAIT Team. In response to a leading question from Petitioner’s counsel, the MAIT team leader, Captain Nicholas Lazaris, agreed that the speeds indicated in Deputy Willet’s report “were filled in to comport with Lieutenant Pelella’s accident reconstruction.” The implication is that Deputy Willett’s report did not include the vehicle speeds when it was prepared and signed by her, but the vehicle speeds were put into the report later without changing the date of the report. The record is left unclear about how the vehicle speeds came to be in Deputy Willett’s report, but this curious situation did not rise to the level of proof of some conspiracy to falsify the report. It also did not cause Lt. Pelella’s conclusions about the vehicles speeds to be unreliable. Sgt. Glen Luben was another member of the MAIT Team that responded to the Bradshaw crash. He obtained the Power Train Control Module from Deputy Bradshaw’s vehicle to extract some of the data that is automatically recorded when there is a loss of power. Sgt. Luben testified that the recorded information indicated that Deputy Bradshaw’s vehicle was going 70.13 mph when his cruiser’s engine stopped. He said this figure was consistent with the crash reconstruction done by Lt. Pelella which estimated Deputy Bradshaw’s speed to be 57 mph, because the conservation of linear momentum formula produces a “minimum speed.” Sgt. Luben believes 70.13 mph to be the more likely actual speed that Deputy Bradshaw was traveling at the moment of impact. Sgt. Palombo thought Ms. Umali was exceeding the speed limit, which is 35 mph. Lt. Pelella’s estimate that Ms. Umali was going 42 mph is consistent with Sgt. Palombo’s testimony. Deputy Martin testified that Ms. Umali was going “[p]robably 55 or 60, just from what little I saw of it.” This testimony by Deputy Martin, as well as his testimony that the Umali vehicle struck the cruiser and that Deputy Bradshaw used due care, was not persuasive. It appeared to be based on Deputy Martin’s desire to support Deputy Bradshaw rather than an impartial account of his actual observations. The crash scene photos and other data do not support Deputy Bradshaw’s claim that he was going only 35 mph at the time of the crash. The more persuasive evidence puts his speed in the range established by Lt. Pelella’s crash reconstruction and Sgt. Luben’s analysis of the Power Train Module from Deputy Bradshaw’s cruiser, between 57 and 70 mph. Although Deputy Bradshaw denied that he was going 57 mph, he agreed that if he had been going that fast, he would not have been exercising due care. Whether Deputy Bradshaw was Wearing His Seatbelt At the final hearing Respondent presented some evidence to show that Deputy Bradshaw was not wearing his seatbelt at the time of the crash. Deputy Bradshaw claims he was wearing his seat belt, but he objected to Petitioner’s introduction of seat belt evidence because Deputy Bradshaw was not informed in the charging document that his failure to wear his set belt was an element of the charges against him. The August 10, 2006, inter-office memorandum that officially informed Deputy Bradshaw of the charges against him stated: Synopsis: While engaged in a high speed pursuit, you ran a red light at a minimum speed of 57 miles per hour and collided with a civilian vehicle which had already entered the intersection. Serious injuries were sustained by both drivers and a passenger in the civilian vehicle. Similarly, the parties’ Joint Pre-Hearing Stipulation stated Petitioner’s position as “Respondent was traveling at a speed which was faster than that at which he could safely clear the intersection.” Therefore, the Administrative Law Judge sustained Deputy Bradshaw’s objection and ruled that seat belt evidence was inadmissible. Ms. Umali’s Impairment In the course of the post-crash assistance provided to Ms. Umali and her passenger, it was determined that she was driving under the influence of alcohol. She was charged and convicted for misdemeanor DUI. The location of the initial collision means that Ms. Umali had crossed about 60 percent of the intersection before the collision, but Deputy Bradshaw had just entered the intersection. Clearly, Ms. Umali entered the intersection well before Deputy Bradshaw. The record evidence establishes that when Ms. Umali got to the intersection, Sgt. Palombo’s cruiser was stopped at the intersection with its siren on and lights flashing. Ms. Umali would have seen Sgt. Palombo’s cruiser. Respondent’s Exhibit 7 contains a deputy’s written notes from his interview with Ms. Umali just after the accident. Neither Ms. Umali nor the deputy who interviewed her were called as witnesses. The exhibit was admitted into evidence over a hearsay objection to show what was considered by the Administrative Review Board in determining the discipline to recommend. The exhibit was not admitted for the truth or accuracy of the statements contained in the exhibit.2 However, the hearsay notation that Ms. Umali told the interviewing deputy that she saw the “cops” and their flashing lights supplements the non-hearsay evidence that she saw (at least) Sgt. Palombo’s cruiser. Whether caused by her impairment or another reason, Ms. Umali did not yield the right-of-way to an emergency vehicle as the law requires. It is Deputy Bradshaw’s position that Ms. Umali’s impairment and failure to yield are important facts in determining whether he used due care under the circumstances. An unstated implication of his argument is that it was reasonable for him to expect civilian vehicles approaching or entering the intersection to yield and, consequently, reasonable for him to disregard the possibility of a non-yielding vehicle. This argument is inconsistent with Deputy Bradshaw’s testimony that he did not notice whether the light at 38th Avenue was red or green, but the color of the light did not matter to him because he always slows at an intersection to make sure it is safe to pass through. In other words, he drives defensively even when he has the right of way. Curiously, no one asked Sgt. Palombo why he stopped in the left turn lane at 38th Avenue. He said he intended to continue his pursuit of the suspect vehicle and that, as soon as the Umali vehicle passed by him, he proceeded through the intersection and continued the pursuit. It is reasonable to infer from the record evidence that Sgt. Palombo came to a stop or near-stop because he saw the Umali vehicle approaching. If he did not see the Umali vehicle approaching, he would have merely slowed down, as he did at the other intersections through which the pursuit had passed. Deputy Bradshaw should have been alerted by Sgt. Palombo’s action in stopping at the intersection that there might be oncoming traffic. Petitioner showed by a preponderance of the evidence that Deputy Bradshaw failed to drive with due regard for the safety of all persons under the circumstances that existed at the time of the crash. The Disciplinary Process Deputy Bradshaw claims that his case was handled differently than all other disciplinary cases arising from a crash during a pursuit. The usual procedure followed when there has been a pursuit that resulted in a crash is that the matter is reviewed by the Pursuit Review Board and also the Crash Review Board. Neither of these boards reviewed the Bradshaw crash. Instead, the crash was investigated by the Administrative Investigations Division within the Sheriff’s Office and then presented to the Administrative Review Board to determine whether discipline against Deputy Bradshaw was warranted and to make a recommendation for disciplinary action to Sheriff James Coats. Deputy Bradshaw believes his case was handled differently because of the concern of Petitioner’s general counsel about civil liability arising from the collision. This proposed explanation seems illogical, because an employer concerned with liability would be expected to assert that its employee did nothing wrong, not the opposite. A plaintiff would be encouraged, not discouraged, by Petitioner’s action against Deputy Bradshaw in this case. Petitioner acknowledges that the procedure it followed in the Bradshaw matter was atypical, but that it was justified by the atypical facts involved. Captain Wayne Morris was chairman of the Pursuit Review Board which meets monthly to review pursuits from the previous month. He said the Pursuit Review Board has an option of referring a matter for an internal investigation when there is an appearance of possible misconduct by a deputy. He said the Bradshaw crash was one of several pursuit cases that was scheduled to come before the board, but he asked or suggested that it should be investigated by the Administrative Investigations Division based on “the seriousness of the crash.” He said that he could not remember a crash that involved vehicles that were “totaled” or injuries to a “third party.” Captain Morris said that even though General Order 15- 2 of the Sheriff’s Office states that all pursuits will be reviewed by the Pursuit Review Board, that is just a guideline and does not always have to be followed. Captain Dean Lachance, chairman of the Crash Review Board, said that his board was not the appropriate body to investigate the Bradshaw matter “because of the level of discipline that we can levy,” and that if this matter had come to the board, it would likely have been referred to the Administrative Investigations Division. Sheriff Coats provided similar testimony that this was an unusual case in the time that he has been Sheriff and it warranted a different review. An Administrative Review Board considered the information compiled by the Administrative Investigations Division and recommended that Deputy Bradshaw be suspended for four days. Sheriff Coats accepted the recommendation and notified Deputy Bradshaw of the disciplinary action on August 10, 2007. The suspension was served by Deputy Bradshaw on August 23 through 26, 2007. Deputy Bradshaw made much of the deviation from usual procedures that occurred in this case, suggesting that it shows some kind of conspiracy to determine wrongdoing and to impose harsh discipline. However, the evidence shows that there was a reasonable perception, shared by several high-ranking officials in the Sheriff’s Office, that the matter warranted special attention because (1) it involved unusually extensive property damage and personal injuries to a deputy and to civilians and (2) because Deputy Bradshaw might have been at fault. It is natural for a crash under these circumstances to create heightened concern or interest in the Sheriff’s Office. Deputy Bradshaw’s claim that the pending lawsuit by Umali against the Sheriff’s Office caused his discipline to be more severe than was justified is not supported by the evidence. Whether the Disciplinary Action was Consistent Deputy Bradshaw showed that the Crash Review Board has never recommended more than a reprimand, even in cases where a deputy was involved in two preventable crashes. Deputy Bradshaw argues that this proves his own discipline was too severe. However, the evidence presented by Deputy Bradshaw included no factual details from the other disciplinary cases that could establish that they involved similar circumstances or otherwise would warrant similar punishment. The record evidence shows that there were no previous incidents that could be described as “similar.” Under the circumstances, Deputy Bradshaw should have decelerated to a very slow speed or even to a stop to make certain no vehicle was approaching from the east. The discipline Deputy Bradshaw received was commensurate with the degree of his deviation from his duty to drive with due regard for the safety of all persons. It was neither inconsistent with prior disciplinary action taken by the Sheriff’s Office against other members nor unreasonably harsh for the offense that was proven. Facts Related to Section 112.532(6), Florida Statutes As discussed more fully in the Conclusions of Law, Section 112.532(6), Florida Statutes (2006), states that disciplinary action cannot be taken against any law enforcement officer in the state for any allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation. Deputy Bradshaw contends that the investigation of the charges against him arising from the crash on September 22, 2006, was not completed within 180 days and, therefore, no disciplinary action can be taken against him. Captain Teresa Dioquino was in charge of the Administrative Investigations Division of the Sheriff’s Office when the subject crash occurred. She testified that Deputy Bradshaw was informed that her division was investigating the crash on May 21, 2007, through a “Notice of Complaint.” She said that was also the date that her division “formally” began its investigation. If May 21, 2007, was the operative beginning date, the Sheriff’s Office met the 180-day requirement. However, the operative beginning date to calculate the 180-day requirement, as stated in the statute, is “the date the agency received notice of the alleged misconduct.” It is not the date that an investigation is formally initiated. Deputy Bradshaw’s speed going through the intersection was the fundamental factual basis for his alleged misconduct in this case. Therefore, the date when the Sheriff’s office received notice of Deputy Bradshaw’s speed would be the operative beginning date to calculate compliance with the 180—day requirement. Petitioner argues that it did not start its investigation of Deputy Bradshaw before May 21, 2007, because it was waiting for the results of Sgt. Luben’s analysis of the Power Train Control Module from Deputy Bradshaw’s cruiser, which was completed in May 2007. Petitioner essentially argues that the completion of Sgt. Luben’s analysis was a necessary prerequisite for the Sheriff’s Office to be on notice of the “allegation of misconduct” regarding Deputy Bradshaw. However, Sgt. Luben testified that he did not discover until January 2007, that the Power Train Control Module even existed in the 2005 Crown Victoria. In other words, when the Sheriff’s Office was informed on December 13, 2006, that Deputy Bradshaw was traveling at 57 mph, based on Lt. Pelella’s crash reconstruction report, it had no reason to think Sgt. Luben was going to come up with another estimate of Deputy Bradshaw’s speed from his analysis of the Power Train Control Module. Once Lt. Pelella’s 57 mph estimate was reported, Sgt. Luben’s subsequent analysis became just a part of the investigation of the alleged misconduct that had to be completed within 180 days. Furthermore, the fact that the Bradshaw crash never went to the Pursuit Review Board or the Crash Review Board during the period from December 2006 to May 2007 indicates a continuing assumption that the Bradshaw crash warranted an investigation of possible misconduct. Using December 13, 2006, as the date the Sheriff’s Office received notice of the alleged misconduct of Deputy Bradshaw, the investigation was not completed within 180 days as required by Section 112.532(6), Florida Statutes (2006). Nevertheless, as discussed in the Conclusions of Law that follow, the exclusive remedy for a violation of the 180-day requirement is an injunction action in circuit court. The failure of the Sheriff’s office to comply with the 180-day requirement cannot be raised as a defense in this administrative action.3
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Civil Service Board issue an Order that makes findings of fact that are consistent with those set forth in this Recommended Order, and contains a conclusion that (1) Deputy Bradshaw engaged in the prohibited conduct for which he was charged, and (2) the disciplinary action taken against him was consistent with action taken against other members of the Sheriff’s Office. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 18th day of April, 2008.
