The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
The Issue The issue is whether Respondent misused her position as an Orlando city commissioner by attempting, on May 6, 2006, to influence how the Orlando Police Department (the police department) handled a routine traffic stop involving her son in violation of Subsection 112.313(6), Florida Statutes (2005).1
Findings Of Fact Petitioner is the state agency responsible for regulating compliance with the Code of Ethics applicable to public officers and employees pursuant to Chapter 112, Part III. At all times material to this proceeding, Respondent has been a public officer, a commissioner of the City of Orlando, Florida. Respondent is African-American, as are her two sons Mr. Sean Lynum and Mr. Juan Lynum. At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo was on duty for the police department patrolling the Paramore neighborhood in Orlando less than a mile from Rock Lake Drive. Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable headlight on the vehicle Mr. Lynum was driving.2 Mr. Lynum was driving Respondent’s vehicle home from a fraternity party to Respondent’s residence on Rock Lake Drive in Orlando, Florida. Mr. Lynum shared the residence with Respondent at the time. Neither Respondent nor Mr. Lynum were aware that a headlight on the vehicle was not working. Mr. Lynum telephoned Respondent from his cellular telephone. He informed Respondent that he was being stopped by a Caucasian police officer and expressed his concern that he was the victim of racial profiling. Respondent telephoned then Chief Michael McCoy of the police department at his home and expressed her concern that Mr. Lynum was the victim of racial profiling. Chief McCoy said he would telephone the watch commander on duty and have him deal with the allegation of racial profiling. Respondent then telephoned Officer Roderick Johnson, the police liaison officer assigned to Respondent and an officer first class in the police department. Officer Johnson was engaged in approved off-duty employment to provide security at a local night club. Respondent had time to disclose the general location of the traffic stop and her concern that her son was being racially profiled when she terminated the conversation to take a return telephone call from Chief McCoy. Respondent clearly intended to influence how the police department handled the traffic stop. Respondent did not expressly request intervention in the traffic stop by Chief McCoy or Officer Johnson, but Respondent admits that the purpose of her action was to alert both men to possible racial profiling and to monitor the traffic stop. Respondent used her official position to influence the traffic stop of her son. Both Chief McCoy and Officer Johnson interpreted a telephone call from a city commissioner at approximately 1:00 a.m. in the morning to be a request for action in her official duty as a commissioner.3 The testimony of Chief McCoy is illustrative. Q. Chief, when you received that call from Commissioner Lynum, did you feel you needed to act based on the phone call? A. She’s a Commissioner, yes. Act then, yes. . . . Q. . . . When you answered that she was a Commissioner, what did you mean by that? How did that impact you? A. I used to make the analogy that our Commissioners were our board of directors, because I spent some time in the private sector, and you know, they drive the direction of the city, police department being part of that. So they’re a Commissioner. They’re elected by the people, so, yeah, pay attention to a Commissioner call, as I would a Mayor call. Q. So when you responded to her, were you responding as a friend or as a commissioner? A. As a commissioner. Transcript (TR) at 258-259 and 277. Officer Johnson took it upon himself to call Officer Ochiuzzo, by radio and then by cell phone, during the traffic stop. A call from a city commissioner at approximately 1:00 a.m. motivated Officer Johnson to take action. Officer Ochiuzzo terminated the traffic stop after discussing the matter with Officer Johnson and never spoke to the watch commander on duty during the traffic stop. Officer Ochiuzzo had intended to issue a traffic summons to Mr. Lynum for an inoperable headlight, no registration, and no proof of car insurance. The benefit sought by Respondent in her attempt to influence how the police department handled the traffic stop involving her son was not to prevent her son from receiving a traffic citation. When Mr. Lynum arrived at Respondent’s home after the traffic stop, Respondent discovered that the headlight on her vehicle was inoperable. She telephoned Officer Johnson and asked him to ensure that a traffic citation was forwarded to her. The benefit sought by Respondent was to prevent racial profiling during an ongoing traffic stop by complaining directly to the chief. That was a special benefit or privilege available to Respondent that was not available to a member of the public through the police department’s bias free policing policy. The police department’s bias free policing policy was drafted by legal counsel for the department and was adopted in June 15, 2004. The policy required a member of the public who alleged racial profiling to file a written complaint on a form provided by the department and required the department to investigate the alleged profiling. Respondent was personally familiar with the police department’s bias free policing policy. Respondent was very active in the community, supported the bias free policing policy, and assisted her constituents in processing profiling complaints. Mr. Lynum later filed a complaint of racial profiling pursuant to the bias free policing policy. The police department investigation exonerated Officer Ochiuzzo. Exoneration means the department found Officer Ochiuzzo to be innocent of the charges in the complaint. Exoneration differs from “not sustained” in that the latter means only that the proof is insufficient to support a finding of guilt. When Respondent telephoned Chief McCoy and her liaison officer at approximately 1:00 a.m. on the morning of May 6, 2006, Respondent acted with wrongful intent for the purpose of benefiting another person from an act or omission during an active traffic stop. Respondent acted in a manner that was inconsistent with her public duties. Respondent testified that she called Chief McCoy and Officer Johnson, not in her capacity as commissioner, but as a mother fearful for the safety of her son. Mr. Lynum testified that he sought his mother’s help out concern for his safety at the hands of a Caucasian police officer. The fact-finder finds the testimony of both witnesses to be less than credible and persuasive. Mr. Lynum was on his cell phone when Officer Ochiuzzo approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring an investigating officer risked antagonizing the officer and are inconsistent with a person in fear of physical harm. The testimony of Officer Ochiuzzo is illustrative. Q. So what did you do next? A. I exited my patrol vehicle and I approached Mr. Lynum’s car. . . . Q. Okay. What happened next? A. He was on his cell phone when I approached the window and the window was up, and I told him I was conducting a traffic stop and that I needed his license and registration, proof of insurance, and he didn’t respond. Q. So at the initial approach of the vehicle, did you make any other gestures to get the driver’s attention or did you solely use voice commands? A. Voice commands combined with my patrol car lights and chirping of the siren. Q. So when you made these initial voice commands, did the driver respond? A. No. Q. So what did you do next to get his attention? A. . . . I took my flashlight and I tapped the window to get the driver’s attention and instructed him again that I was conducting a traffic stop and I needed a license, registration, proof of insurance. Q. And at that point did Mr. Lynum engage in the traffic stop? A. No. Q. What did he do? A. He ignored it once again. He was on the cell phone. And so I pulled the door open and I told him that I was conducting a traffic stop. I needed his license, registration, proof of insurance. TR at 35-36. Officer Ochiuzzo returned to his patrol vehicle and began writing a uniform traffic citation when he was interrupted by the radio inquiry, which concluded by cell phone, from the liaison officer for Respondent. Officer Johnson informed Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s liaison officer and that Officer Ochiuzzo had stopped the commissioner’s son. After the conversation, Officer Ochiuzzo terminated the traffic stop. When Officer Ochiuzzo pointed patrol vehicle lights into the rearview mirror of the vehicle of Mr. Lynum, shined a flashlight beam into the vehicle, and kept his free hand on top of his holstered pistol, it was not a threat to Mr. Lynum. It was standard procedure for traffic stops at that hour. When Officer Ochiuzzo was yelling at Mr. Lynum, it was because Mr. Lynum had ignored the officer’s earlier attempts to redirect Mr. Lynum from the cell phone conversation and had failed to lower the window so the officer would not have been required to yell to be heard. Mr. Lynum is an attorney who is familiar with police procedures during traffic stops through instructions from his father who was a law enforcement officer from 1969 through 1987 and ended his career as the chief of the Wildwood Police Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s brother, is a former officer in the same police department as Officer Ochiuzzo. Respondent is very active in the community and familiar with police procedure. A common safety precaution for a person who suspects he or she is a victim of racial profiling during a traffic stop is to ensure the site of the stop is well lighted and that the person is in contact by cell phone with a person who can be a witness. Mr. Lynum followed both precautions. He stopped in a well-lit area, and he was on his cell phone. Complaints of racial profiling in the area had declined from 23 the year before Chief McCoy became the chief of the department to a consistent annual range of six to eight. Racial profiling was not an issue in the area until after Mr. Lynum made his complaint. The testimony of Chief McCoy is illustrative. This, after the fact, became quite a community event or issue, which sparked a lot of accusations of racial profiling. Our policy had been in effect as long as it’s been in effect. The year before I was Chief, there was like 23 total racial profiling complaints made. The year I became Chief that dropped to like six or eight and that was-–that number was pretty consistent. Even after we had this community event issue, they still never got over 10, total. The key is that if you have a complaint, you need to follow up on it. If people feel like they were stopped simply because they were-–of their race, then you need to do the form and do it right and the officers know that-–or knew that. Q. So, really, it did not become a community issue until after Commissioner Lynum’s son was stopped, racial profiling? A. That would definitely be my perspective . . . . it was not an issue. TR at 278-279.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order and public report finding that Respondent violated Subsection 112.313(6) and publicly censuring and reprimanding Respondent. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd of February, 2009.
The Issue The issue is whether Respondent, Scott Rhodes, should be terminated from employment with Petitioner, City of Clearwater (City), for violating City policies as alleged in the City's Termination and Dismissal Notice dated February 16, 2018.
Findings Of Fact Parties and Jurisdiction The City is a government employer governed by a City Council. A City Manager oversees the City’s operations. Pursuant to the Code of Ordinances of the City of Clearwater (City Code), the Clearwater Civil Service Board has adopted policies and rules regulating all aspects of the civil service employee positions within the City.1/ Mr. Rhodes began his employment with the City as a Solid Waste worker on September 6, 2004. He worked in the same position until his termination effective February 20, 2018. Approximately 85 percent of the current Solid Waste staff is African-American. Mr. Rhodes describes himself as “white” and “not black.” At all times relevant, Mr. Rhodes’ supervisor was Joseph Farrar, who is Caucasian. Mr. Farrar’s ultimate supervisor is Earl Gloster, an African-American. Mr. Gloster is the department head of Solid Waste and reports directly to the City Manager. Mr. Rhodes’ Disciplinary History Prior to his termination, Mr. Rhodes had been involved in a number of incidents with co-workers requiring counseling or discipline. In late November 2011 and early 2012, Mr. Rhodes reported he was being harassed by a co-worker in Solid Waste, Feth Benbelgacem. His complaint was investigated by the City’s HR Department and a report was issued. Although the City found Mr. Benbelgacem had violated the City’s Workplace Violence Policy, the report concluded: No one was able to corroborate the specific claim that Mr. Rhodes made that Mr. Benbelgacem [threatened him]. A number of those interviewed feel that Mr. Rhodes has animosity because Mr. Benbelgacem is permitted to operate the equipment which causes Mr. Rhodes to “nitpick” Mr. Benbelgacem’s work performance, thereby instigating their interaction. This behavior on the part of Mr. Rhodes has been reported to the supervisors and although Mr. Rhodes has been directed to cease the behavior and worry about himself, the behavior allegedly continues. * * * Although Mr. Rhodes has been instructed by his supervisors to stop delegating and criticizing tasks relating to Mr. Benbelgacem, the behavior seems to continue and should it not stop, the supervisor should address it through the Performance and Behavior Process. In November 2016, Mr. Farrar issued Respondent a coaching and counseling form for “violence in the workplace” based on a verbal altercation Mr. Rhodes had with an African-American co-worker. The form signed by Mr. Rhodes states: Outcome of Meeting: Mr. Rhodes understands that verbal misconduct is as serious as physical conduct. Verbal attacks can lead to physical confrontations just as this situation did. In the future, verbal attacks on a co-worker’s family or loved ones will not be tolerated. At some point after the November 2016 counseling, when someone did something he did not like, Mr. Rhodes would either tell that person that he was going to give that person a specific number of lashes or he would direct a co-worker to distribute a specific number of lashes to that person. Mr. Rhodes also told his co-workers to “kiss the ring,” implying they were subservient to him. Mr. Rhodes would talk about certain co-workers being on his “hit list.” When asked who was on his “hit list,” Mr. Rhodes named the same African-American co-worker involved in the November 2016 incident. In early 2017, Mr. Farrar overheard Mr. Rhodes saying he would give certain co-workers lashes. Mr. Farrar believed these comments were inappropriate and could have been interpreted as racially offensive. He also overheard Mr. Rhodes talking about his “list.” As a result, Mr. Farrar met with Mr. Rhodes and instructed him to stop making such remarks. Although Mr. Farrar did not specifically tell Mr. Rhodes these comments violated any specific policy, he did tell Mr. Rhodes “that he needed to watch what he was saying around newer people because they might not know how to take it the way people that had been around him do.” At the final hearing, Mr. Rhodes admitted he told other employees he would give them lashes, they were on his hit list, and they should kiss the ring, but claimed he was joking. In April 2017, Mr. Farrar placed Mr. Rhodes on a “Development Plan” after repeatedly being warned by Mr. Farrar about failing to properly clock in and out, and accruing unauthorized overtime. The Development Plan was to remain in effect from April 28 to October 28, 2017, and required Mr. Rhodes to meet personally with Mr. Farrar on “Payday” Fridays and comply with the City’s timeclock regulations. Mr. Rhodes defied orders to meet with Mr. Farrar and otherwise failed to adhere to the Development Plan. As a result, Mr. Rhodes received a one-day suspension (referred to as a “decision-making leave day”) and was referred to the Employee Assistance Program. The Development Plan was also revised and extended to remain in effect until March 2018. Meanwhile, Mr. Rhodes continued to make the same type of inappropriate remarks referring to “lashes” and the “hit list.” In October or November 2017, Mr. Farrar had a second meeting with Mr. Rhodes and again instructed him to stop making these types of remarks. The Terminating Incident On January 17, 2018, Mr. Farrar received a complaint from Allan Craig, an African-American Solid Waste worker, that Mr. Rhodes claimed he was the “emperor of all black people.” According to Mr. Farrar, Mr. Craig reported the incident just after it was made and was visibly shocked. Mr. Farrar referred the incident to the City’s Office of Diversity and Equity Services (“ODES”), a division within the HR department tasked with handling and investigating complaints of the City’s anti-discrimination policies, as well as potential employee violations of state and federal employment laws. Mr. Craig testified that on the day in question, Mr. Rhodes did not like something an African-American co-worker said. In turn, Mr. Rhodes told Mr. Craig to give this co-worker “50 lashes,” which Mr. Craig understood to be a whipping. Mr. Craig, said, “no, we [have] to stick together.” It is unclear to whom Mr. Craig is referring when he said “we”--“Solid Waste workers” or “African-Americans.” Regardless, in response, Mr. Rhodes made the statement, “I’m the emperor of black people.” Mr. Craig did not respond, but instead immediately left the worksite to report the comment to Mr. Farrar. Although Mr. Rhodes corroborates Mr. Craig’s version of events, he disputes saying “I’m the emperor of black people.” Instead he claims he told Mr. Craig “I am the emperor of Solid Waste”; and after Mr. Craig said, “no, we [have] to stick together,” Mr. Rhodes replied, “Allan, even black people have to answer to somebody.” Mr. Rhodes saying, “I’m the emperor of black people” is more believable than him saying “Allan, even black people have to answer to somebody.” The undersigned rejects Mr. Rhodes’ version of events for a number of reasons.2/ First, Mr. Rhodes statements do not seem to flow naturally. Second, Mr. Craig’s demeanor was more credible, and his version of the facts leading up to the “emperor” statement was consistent with the testimony of the other witnesses. Moreover, Mr. Deris, the ODES investigator, testified that Mr. Rhodes admitted to making the statement, “I am the emperor of black people” when questioned during the investigation. Mr. Gloster testified that during the pre-termination meeting he had with Mr. Rhodes, “I asked him specifically as to the comment that was made . . . that he was the emperor over all black people, and he said, yes, that he said it.” Even assuming Mr. Rhodes’ version is correct, it is equally offensive; it still implies African-Americans at Solid Waste need to answer to him. Based on the competent and credible evidence, the undersigned finds that Mr. Rhodes made the statement, “I am the emperor of black people,” and this statement was reasonably offensive to Mr. Craig. Grounds for Dismissal Based on the ODES investigation and after meeting with Mr. Rhodes, Mr. Gloster made the decision to terminate Petitioner. Thereafter, the City issued the Dismissal Notice citing numerous violations of City policy and regulations: City Policy 3201.2, Equal Employment Opportunity Policies (EEO); City Policy 3704.1, Workplace Violence Prevention Policy; and Relevant portions of the City’s Performance and Behavior Management Program Manual (PBMP), which set standards for City workers in the areas of personal responsibility, excellence, and integrity. Chapter 13, section 3, of the Civil Service Board Rules and Regulations outlines the grounds for discipline, including terminations. That section provides in pertinent part: Reasons for Suspension, Demotion, and Dismissal--Whenever practical, employees will be given reasonable opportunity to bring their performance and/or behavior up to acceptable standards pursuant to the procedures and rules of the City’s performance and behavior management programs. However, employees may be subject to disciplinary action up to and including immediate dismissal for the following acts, including but not limited to specifically cited examples: * * * (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. * * * (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed-upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to establish rules, regulations, or guidelines. (emphasis added). Violation of EEO Policy The City’s EEO policy states in relevant part: It is the policy of the City of Clearwater that no person shall be unlawfully discriminated against with regard to recruitment, selection, appointment, training, promotion, retention, discipline or other aspects of employment because of any consideration of race, color, religion, national origin, age, disability, marital status, or gender (including conditions of pregnancy and sexual harassment), or genetic or family medical history information as defined by the Genetic Information Nondiscrimination Act. Mr. Rhodes’ “lashes” comments could reasonably be interpreted as a reference to slavery, and be racially offensive to African-American (and other) employees. As such, Mr. Rhodes continued references to “lashes,” even after being warned, violated the City’s EEO policy. Mr. Rhodes statement that he, a white person, was the “emperor of black people” clearly violates the City’s EEO policy. Violation of the City’s Workplace Violence Prevention Policy The City’s Workplace Violence Prevention Policy states in relevant part: Policy: The City of Clearwater will not tolerate violence, threats, harassment, intimidation, and other disruptive behavior in our workplace [.] All reports of incidents will be taken seriously and will be dealt with appropriately. Individuals who commit such acts may be removed from the premises and may be subject to disciplinary action, criminal penalties, or both. Definitions: Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the workplace. Such behavior can include oral or written statements, gestures, or expressions that communicate a direct or indirect threat of physical harm. Although there was no evidence anyone believed Mr. Rhodes’ “lashes” or “hit-list” statements were real threats of violence, these statements could be considered a form of intimidation, disruptive behavior, and verbal abuse under the policy. These comments, however, when taken in the context of Respondent’s history of verbal altercations with co-workers, and coupled with the fact he was told that these statements may be misinterpreted, constitute violations of the City’s Workplace Violence Prevention Policy. Violation of the City’s Employee Standards The PBMP contains the following relevant standards and instructions: INTEGRITY STANDARDS The following standards represent Integrity issues of such a serious nature that immediate formal discipline, up to and including termination, may be recommended. Violation of the City Workplace Violence Policy. Violation of the City Equal Employment Opportunity (EEO) Policy. * * * EXCELLENCE STANDARDS We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. Again, Mr. Rhodes’ statements described above when considered cumulatively and in context clearly violate the standards for employee integrity. Mr. Rhodes’ continued use of these comments, even after being repeatedly counseled, violates the standards for professional image through actions and speech; continuously learning and improving; and modifying behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Dismissal Notice are sustained, and that Respondent be terminated as a City employee. DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 6th day of September, 2018.
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issues for determination are: Whether Respondent violated section 112.3135, Florida Statutes,1/ by voting on the appointment and/or advocating for the appointment of her relative to a position within her agency and/or her agency voting to appoint and/or advance her relative and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using her position to appoint her relative to the position of City of Midway Mayor Pro Tem and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using a City of Midway-owned vehicle and/or City of Midway-issued gasoline credit card for personal use and, if so, what is the appropriate penalty? Whether Respondent violated section 112.3148(8), Florida Statutes, by failing to report the gift of the personal use of the City of Midway-owned vehicle and/or the City of Midway-issued gasoline credit card and, if so, what is the appropriate penalty?
Findings Of Fact At all material times, Respondent served as a member of the Midway City Council (City Council). She was initially appointed to the City Council in 2000 and served until 2003. She was subsequently elected to the City Council in 2015 and served until May of 2019. Respondent became the Mayor of the City of Midway in May of 2017. As a member and/or mayor of the City Council, Respondent is subject to article II, section 8, Florida Constitution, and the requirements of part III, chapter 112, Florida Statutes, Code of Ethics. In January 2018, Respondent attended and received ethics training from the Florida League of Cities. That training included information on and examples of nepotism, misuse of position, and the receipt and disclosure of gifts. It also included information about the Commission issuing advisory opinions and how to contact the Commission. Nepotism Allegation The form of government the City of Midway (the City) provided under its Charter is the "Council-Manager Government,” under which all powers of the City are vested in an elected council. The City Council consists of five citizens who are residents of the City and electors eligible to vote in the City elections. From its members, the City Council elects a Mayor and Mayor Pro-Tem. The election of the Mayor and Mayor Pro-Tem occurs at the first regular council meeting after the City election. According to the Midway City Charter, the Mayor presides at all meetings of the City Council and performs other duties consistent with the office as imposed or designated by the City Council. The Mayor has a voice and vote in the proceedings of the City Council. The Mayor is referred to as Mayor-Councilmember in the execution of any legal instruments or writing or when functioning to meet other duties arising from the general laws of Florida or from the City Charter. The Mayor is recognized as the head of City government for all ceremonial purposes, for service of process, execution of contracts, deeds and other documents. The Mayor may take command of the police and govern the City by proclamation during the times of grave public danger or emergency and the Mayor has the power during such times to appoint additional temporary officers and patrolmen. The power and duties of the Mayor-Councilmember are such as they are conferred upon him/her by the Midway City Charter and no other. The Midway City Charter provides that the Mayor shall: “(a) See that all laws, provisions of this charter, and acts of the council, subject to his/her direction and supervision are faithfully executed; (b) Submit the annual budget message; (c) Summon the appropriate law enforcement officers to suppress civil disturbances and to keep law and other during times of emergency; (d) Make such other reports as the council may require concerning the operations of city departments, offices, and agencies subject to his/her direction in time of emergency; (e) Attend, preside, and vote at all council meetings; (f) Sign contracts on behalf of the city pursuant to the provisions of applicable ordinances; (g) Be recognized as the city official designated to represent the city in all agreements with other governmental entities or certifications to other governmental entities as approved by the vote of the city council; (h) Annually prepare a state of the city message, set forth the agenda for all meetings of the council, name committees of the council, make recommendations of members for city boards to the city council; (i) Perform such other duties as specified in this charter or may be required by council.” The population of the City is less than 4,000 residents. The City Council has land use and/or zoning responsibilities. In April 2016, there was a vacancy on the City Council caused by a Councilmember departing prior to the end of that Councilmember’s term. Respondent’s first cousin, Sam Stevens, wanted to be appointed to the City Council to fill the vacant seat. Prior to any action on the matter, Respondent telephoned Commission legal staff member, Grayden Schafer, Esquire, and inquired whether she would be in violation of the anti-nepotism statute if the Council appointed her first cousin to serve the unexpired remainder of a departing Councilmember's term. Following his telephone conversation with Respondent, on April 21, 2016, Attorney Schafer sent an e-mail to Respondent at rangewanda@yahoo.com, summarizing Respondent’s inquiry and the advice he provided. The last page of that e-mail (Schafer’s E-mail) states: a public official can be held in violation of the anti-nepotism provision if the appointment is made by the collegial body on which she serves, even if she did not participate in the appointment. Given the foregoing, it appears that you can be held in violation of the anti-nepotism statute not only if you directly participate or advocate for your first cousin's appointment but also if the City Council decides on its own to appoint him, regardless of whether you vote or participate. According to Respondent, she did not receive the Schafer E-mail in 2016 and did not see it until after the filing of the complaints initiating this case against Respondent. Regardless of the timing of Respondent’s receipt of Schafer’s E-mail, the evidence is persuasive that the topic was discussed between Respondent and Attorney Schafer, and that, as a result of her telephone conversation with Attorney Schafer in April 2016, Respondent understood that, because of her kinship with Sam Stevens, she could not vote to appoint or advocate to appoint Sam Stevens to the City Council. She also was aware that, even if she recused herself from voting or participating in the discussion to appoint Sam Stevens to the City Council, if the City Council voted to appoint her first cousin to the vacant seat, she would be in violation of the anti-nepotism provision. After her conversation with Attorney Schafer, in April 2016, Respondent advised the City Council of her research and that she had contacted the Commission to inquire as to whether she could vote to appoint her cousin to the City Council. She explained that she could not and would have to resign if he was appointed, even if she did not participate in the vote. Sam Stevens was not appointed to fill the vacant City Council seat in 2016. The next year, Sam Stevens was elected to the City Council during the April 2017 municipal election. He was not elected or appointed by the City Council, but rather was elected by City citizens voting in the election. The following month, at its May 4, 2017, meeting, the City Council considered the issue of electing a Mayor and Mayor Pro-Tem as provided by the City Charter. At that meeting, Councilman Colston asked if it was legal for relatives to vote for each other. The minutes of the City Council for that date indicate that “Interim City Attorney Thomas explained he had heard the rumor and did research and it is legal.” Contrary to the City Council minutes, in his deposition testimony, City Attorney Thomas denied that he gave that advice, but rather explained that he opined that Respondent and Councilman Sam Stevens could serve together on the City Council, but could not promote or advocate for one another. Despite his denial, during his interview with the Commission’s investigator, City Attorney Thomas “recalled researching the matter and advising Respondent that it was not a voting conflict for her to vote to appoint her cousin to serve as mayor pro tem." Considering the conflicting evidence, it is found that the preponderance demonstrates that the City Attorney advised that it was not a voting conflict for relatives to vote for each other for Mayor and Mayor Pro-Tem. Respondent did not reveal her 2016 conversation with Attorney Schafer to the City Council on May 4, 2017, nor did she provide a copy of Schafer’s E-mail dated April 21, 2016, to either the City Council or the City Attorney prior to the City Council’s votes for Mayor and Mayor Pro-Tem. However, at the May 4, 2017, City Council meeting, a citizen confronted Respondent with a copy of Schafer’s E-mail, reading portions of Schafer’s E-mail aloud. Respondent testified that she did not acknowledge an ethical dilemma regarding Attorney Schafer’s opinion because she believed it addressed appointment as opposed to election, and her cousin had been elected a year later, not appointed. Schafer’s E-mail does not address the situation in which both Respondent and her first cousin are elected members of the City Council and whether Respondent can vote to elect him as the Mayor Pro-Tem in that context. At that meeting, Respondent nominated herself to serve as Mayor. Her nomination was seconded by Councilman Smith. Respondent was elected as Mayor when the City Council voted three to two for Respondent to serve as Mayor with Councilman Smith, Councilman Sam Stevens, and Respondent voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” Respondent, as the Mayor, received an $800 stipend, which is $100 more than the other councilmembers. At that same May 4, 2016, meeting, Councilman Colston nominated Councilwoman Francis to serve as Mayor Pro-Tem. That nomination failed two to three, with Respondent, Councilman Smith, and Councilman Stevens voting “no.” Councilman Smith then nominated Councilman Stevens to serve as Mayor Pro-Tem. The City Council voted three to two for Councilman Stevens to serve as Mayor Pro-Tem with Respondent, Councilman Stevens, and Councilman Smith voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” According to the City Charter, the Mayor Pro-Tem: “shall preside over the meetings of the council during the absence of the mayor- councilmember, and in general in the absence or the incapacity of the mayor- councilmember, he/she shall do [sic] perform those acts and things provided in this Chapter to be done by the mayor- councilmember. Nothing contained herein shall be construed as to preclude the member succeeding himself or herself as Mayor- Council member.” The City provides no additional compensation for a Councilmember serving as Mayor Pro-Tem. Vehicle Use and Gift Disclosure The City has two vehicles. One is a white Ford Taurus that has air conditioning (Vehicle). The other is a white Ford Taurus with a red stripe that does not have air conditioning. Respondent was given a 2002 MPV Mazda Van by her daughter, Temika Smith, on Mother’s Day in 2016. While serving as Mayor, Respondent had use of the Vehicle for personal use. Respondent began using the Vehicle in September or October 2017 following a hurricane and had access to the Vehicle until she stopped using it in May of 2019. During this time, the Vehicle was generally parked on property adjacent to Respondent’s residence. While Respondent had a set of keys to the Vehicle, there was another set of keys at the City Hall. In addition to Respondent’s access, other city employees or city council members could use the Vehicle. Former City Manager Steele used the Vehicle on occasion during the time that Respondent had access to the Vehicle. When former City Manager Steele wanted to use the Vehicle, she would pick it up from Respondent’s residence and return it to City Hall. Respondent used the Vehicle for a variety of City- related purposes. She used it to travel to Florida League of Cities’ conferences. In addition, she used the Vehicle to attend events in Midway, in Gadsden County, and in Tallahassee, including meetings with the City’s lobbyist and members of the Florida Legislature, as part of her duties and responsibilities as Mayor. Respondent was also observed driving the Vehicle to meetings at the City Hall. Respondent’s personal use of the Vehicle included, but was not limited to, traveling roundtrip between Midway and Tallahassee. She may have had her daughter in the Vehicle on two or three occasions, and on occasion, drove the Vehicle to her daughter’s house in Tallahassee. On one of the occasions when Respondent drove the Vehicle to her daughter’s house in Tallahassee, which occurred on March 15, 2018, Respondent had a run-in with a Midway resident who had followed Respondent to her daughter’s house. The Midway Resident took pictures of the Vehicle at Respondent’s daughter’s house and also the Mazda MPV van, which was without a license plate. On that occasion, Respondent had gone to check on the house because her daughter was out of town. At the final hearing, Respondent admitted that there was a time when the Mazda MPV was in the shop a lot, and, since she had access to the Vehicle, she turned in the Mazda’s tag to save on insurance payments. On another occasion in 2018, Respondent was stopped by a Gadsden County Deputy Sheriff in Midway after midnight for having a tag light out and the incorrect tag on the Vehicle. Respondent had been returning from Tallahassee. No citation was issued with respect to that stop. Other examples presented at the hearing illustrating Respondent’s use of the Vehicle included her transporting a child from Midway to Florida High in Tallahassee, taking a Midway resident from Midway to Tallahassee to drop him at his place of employment, and taking an individual to Liberty County to retrieve that person’s vehicle left when evacuating because of a hurricane. While providing such accommodations is not listed within Respondent’s responsibilities as Mayor or Councilmember, arguably, they served a public purpose. While Respondent had access and use of the Vehicle, the City did not have a vehicle-use policy. The evidence indicates that former City manager Ford also used a City-owned vehicle for personal use. Former City Manager Steele could not recall if any other city employees or city council members had used the Vehicle. Respondent testified that employees of the City’s public works department might also have used the Vehicle. City Councilman Ron Colston testified that he never used the Vehicle. At the May 3, 2018, Midway City Council meeting, Councilman Colston publicly requested that Respondent stop driving the Vehicle, stating that citizens had approached him with concerns about Respondent driving the Vehicle. Minutes of that City Council meeting indicate that Councilman Coston commented that he had received some calls from citizens concerned with Respondent driving the City-owned vehicle and suggested that she should park the Vehicle because of the number of complaints and that it is a liability. In response to that comment, City Attorney Thomas suggested that the City Council come up with some policy and procedures on the use of City vehicles. Respondent did not stop driving the Vehicle at the time of Councilman Colston’s request. By the end of October 2018, the Vehicle needed a tune-up and to have its brakes checked. In October 2018, Respondent started using a rental car when she got a job with the Federal Emergency Management Agency (FEMA) for debris monitoring. Respondent was not reimbursed by FEMA for the rental. In January 2019, Respondent purchased a new vehicle, a 2019 Mitsubishi G4 Mirage. At the time of the final hearing in this case, the City was in the process of developing a policy regarding the use of City vehicles and City Fuel Cards. Respondent did not report the use of the vehicle on her income taxes and did not file a gift disclosure to report her personal use of the City-owned vehicle as a gift. Fuel Card Use and Gift Disclosure Respondent used a City-issued Pilot Travel Center credit card for gasoline for the Vehicle. City-issued Pilot Travel Center credit card #007 (City Fuel Card) was assigned to the Vehicle. The City Fuel Card was the only one numbered #007 and it remained in the Vehicle. While some of the fuel purchases charged to the City Fuel Card were related to City business, Respondent acknowledged that fuel was also purchased using the City Fuel Card during her personal use of the Vehicle. Records of City Fuel Card #007 from November of 2017 through December of 2018 show the following charges: November 2017: -November 1, 2017– 623 Quincy FL- $33.67 -November 5, 2017- 425 Midway FL- $20.71 -November 5, 2017- 4556 Wildwood FL- $20.00 -November 8, 2017- 4556 Wildwood FL- $18.30 -November 9, 2017- 623 Quincy FL- $24.72 -November 13, 2017- 623 Quincy FL- $21.77 -November 13, 2017- 623 Quincy FL- $35.42 -November 20, 2017- 623 Quincy FL- $42.68 -November 20, 2017- 623 Quincy FL- $30.78 -November 27, 2017- 623 Quincy FL- $32.00 Respondent traveled on City business to and from Orlando, Florida, from November 5 through November 8, 2017. As to the multiple charges on November 13, 2017, and November 20, 2017, Respondent explained that she traveled on City business because “we were giving out turkeys during that time.” December 2017: -December 2, 2017– 623 Quincy FL- $30.91 -December 12, 2017– 623 Quincy FL- $34.06 -December 15, 2017– 425 Midway FL- $30.27 -December 22, 2017– 425 Midway FL- $27.03 January 2018: -January 9, 2018– 425 Midway FL- $33.82 -January 17, 2018– 425 Midway FL- $22.03 -January 18, 2018- 4556 Wildwood FL- $18.00 -January 21, 2018- 4556 Wildwood FL- $8.20 -January 22, 2018- 425 Midway FL- $15.50 -January 23, 2018- 425 Midway FL- $8.57 -January 24, 2018- 425 Midway FL- $10.01 -January 26, 2018- 425 Midway FL- $24.00 Respondent traveled on City business to and from Orlando, Florida, during the period from January 18 through 22, 2018. February 2018: -February 2, 2018– 425 Midway FL- $34.26 -February 15, 2018– 425 Midway FL- $32.00 -February 22, 2018– 425 Midway FL- $30.01 March 2018: -March 14, 2018- 425 Midway FL - $31.00 -March 28, 2018– 425 Midway FL - $32.07 April 2018: -April 7, 2018– 425 Midway FL - $25.00 -April 17, 2018– 425 Midway FL - $35.44 -April 28, 2018– 425 Midway FL - $7.52 66. May 2018: -May 14, 2018– 425 Midway FL - $37.01 -May 20, 2018– 425 Midway FL - $29.02 -May 26, 2018– 425 Midway FL - $41.00 67. June 2018: -June 1, 2018– 4556 Wildwood FL- $25.03 -June 2, 2018– 4556 Wildwood FL- $18.02 -June 4, 2018– 425 Midway FL- $20.00 -June 9, 2018– 425 Midway FL- $31.00 -June 15, 2018– 425 Midway FL- $28.04 -June 29, 2018– 425 Midway FL- $33.00 Respondent traveled on City business to and from Orlando, Florida during the period from May 31, 2018, through June 2, 2018. 68. July 2018: -July 18, 2018- 425 Midway FL- $35.06 August 2018: -August 3, 2018– 425 Midway FL- $21.08 -August 14, 2018- 622 St. Lucie FL- $20.01 -August 14, 2018- 091 Jacksonville- $24.00 -August 19, 2018- 624 Dade City FL- $27.02 -August 20, 2018- 425 Midway FL- $19.33 -August 24, 2018- 425 Midway FL- $33.01 Respondent traveled on City business to and from Hollywood, Florida during the period from August 14 through 18, 2018. September 2018: -September 4, 2018– 425 Midway FL- $37.00 -September 13, 2018– 425 Midway FL- $35.50 -September 29, 2018– 425 Midway FL- $36.01 October 2018: -October 10, 2018– 623 Quincy FL- $39.07 November 2018: -November 21, 2018– 623 Quincy FL- $33.07 December 2018: -December 5, 2018– 623 Quincy FL- $18.80 In addition to the fact that some of Respondent’s use of the City Fuel Card to put fuel in the Vehicle included her personal use of the Vehicle, Respondent used the City Fuel Card to purchase gasoline for the Vehicle when she was using the Vehicle for travel on City business, including travel to Florida League of Cities’ conferences in November of 2017, as well as while traveling on City business in and around Midway and Gadsden County, and to and from Tallahassee. Respondent also used the City Fuel Card to pay for gasoline while traveling on City business to attend Florida League of Cities’ conferences in a rental vehicle. These conferences occurred January 18 through 22, 2018; May 31 through June 2, 2018; and August 14 through 18, 2018. There was no evidence presented that Respondent used the City Fuel Card to purchase anything other than fuel for the Vehicle or fuel for a rental car while on business for the City. As the City Fuel Card was kept in the Vehicle, other City Council members or City employees would have had access to the City Fuel Card when they were driving the Vehicle. Respondent did not file a gift disclosure to report her use of the City Fuel Card to put gasoline in the Vehicle on those occasions when she used the Vehicle for personal use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Wanda Range, violated section 112.3135, Florida Statutes, and recommending the imposition of a nominal civil penalty of $1.00 for that violation, and further finding that Respondent Wanda Range did not violate sections 112.313(6), or 112.3148(8), Florida Statutes, as alleged in the Order Finding Probable Cause. DONE AND ENTERED this 8th day of November, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 8th day of November, 2019.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF 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 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Aaron Attias ("Attias"), worked for the town of Bay Harbor, Florida, from June, 1977 to April, 1992, as a tollman in Bay Harbor Island. Pursuant to a rule of the town of Bay Harbor, Attias was required to collect a thirty-five cent toll per automobile. Uniformed police officers in marked police cars were exempt from the toll; however, police officers not in uniform and in unmarked cars were charged the toll. In April, 1992, a woman pulled up to Attias' toll booth and told him she had just been robbed and she had no money to pay the toll. Attias paid her toll, told her to pull over to the side of the road, and called the Bay Harbor Police. Allen Block, a police officer, for Bay Harbor, was dispatched to the toll facility to investigate the robbery. He learned that the crime occurred in North Miami and, thus, should be investigated by the North Miami Police. A uniformed, female police officer in a marked police car pulled up to the toll booth. The officer was not a Bay Harbor police officer. Attias allowed her to pass without paying the toll because she was in uniform and in a marked car. Approximately twenty minutes later, a motorist in an unmarked car pulled up to the toll booth and identified himself as a police officer. Attias charged him the thirty-five cent toll. The officer paid the toll; however, based on the motorist's demeanor, Attias felt that he didn't like having to pay the toll. Attias gave the officer a receipt. Later, Officer Block and Sergeant Bateman came to the toll facility and spoke with Attias' supervisor and advised him they were there to arrest Attias. Attias' supervisor advised him the police wanted to see him. Attias put his money box in the vault and met the police officers in the hallway leading to the main toll facility. There is conflicting testimony concerning what happened after Officer Block and Sergeant Bateman met with Attias. According to Officer Block, Attias refused to speak to the police, grabbed Sergeant Bateman and pushed him with both hands against the wall. Officer Block and Sergeant Bateman informed him he was under arrest for obstruction of justice. This charge was because Attias had charged the North Miami police officer the thirty-five cent toll. According to Attias, he asked the policemen what they wanted, they began to crowd him, and his shoulder touched Sergeant Bateman. Attias testified that he did not push Sergeant Bateman. Having judged the demeanor and the credibility of the witnesses, I find that Attias did push Sergeant Bateman with both hands, knocking him against the wall. The pushing was not done in self-defense or in defense of another. On August 12, 1993, Attias applied for a Class "D" Security Officer license with the Department of State (Department). By letter dated November 24, 1993, the Department denied his application, citing as grounds Section 493.6118(1)(j), Florida Statutes. Other than his arrest for the incident at issue, Attias has never been arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Aaron Attias' application for a Class "D" Security Officer license. DONE AND ENTERED this 18th day of April, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-7159S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed finding of fact: Petitioner's Proposed Finding of Fact. Petitioner's unnumbered finding of fact on page 2 of his proposed recommended order is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Alan S. Fishman, Esquire Fishman & Goldstone Suite 202 2300 West Sample Road Pompano Beach, Florida 33073 Henri C. Cawthon, Esquire Division of Licensing The Capitol, MS-4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
