Findings Of Fact Respondent, Richard C. Lockman, Jr., is, and at all times relevant to this proceeding, has been a certified law enforcement officer, having been issued certificate number 02- 15677 by the Criminal Justice Standards and Training Commission. Richard Lockman was employed by the Town of Windermere Police Department from March 18, 1980 through May 22, 1987. During the relevant periods of 1986 and 1987, his rank was sergeant. His immediate supervisor was the Windermere police chief, Jeffrey C. Villella. From summer 1986 until April 1987, Chief Villella was building a personal residence and was absent from the police department for several days each week, using accrued leave time. In the chief's absence, being next in rank, Sgt. Lockman was generally in charge of the daily affairs of the department. Sgt. Lockman began hearing and became aware of irregularities in the chief's administrative practices. A town council member, Pete Wages, approached Sgt. Lockman and asked about Chief Villella's use of a police vehicle for personal business, and later asked about discrepancies in the chief's time sheets. On another occasion, Councilman Wages asked him about the chief's operation of a private security guard business while in his police department office. Each time Sgt. Lockman provided information that tended to support the councilman's suspicions. From other sources, Lockman heard stories about the possibility that the son of the contractor who was building Chief Villella's house was involved in drugs. Lockman was concerned that the chief did not aggressively pursue drug investigations, but rather was more interested in burglaries in the Town of Windermere. Someone reported that tangible evidence was not being properly handled at the police department. John P. Luff was part-time city manager for the Town of Windermere from January through June 1987. He and Forrest Danson, a council member who was designated "police commissioner", were responsible for reviewing the activities of the police department. John Luff was aware of friction between Chief Villella and Sgt. Lockman but ascribed it to a personality conflict. He considered both men to be honest. After the allegations came to his attention, John Luff discussed them with Chief Villella and the chief denied them. When Luff reviewed the police time sheets he had no basis to question them. Luff also believed that Villella's use of his vehicle was proper. At some point Villella told him that Wages and Lockman were out to get the chief's job. During the controversy, one day in early 1987, Sgt. Lockman was arriving for duty when Chief Villella apprehended him from the vicinity of Councilman Wages' office. The chief ordered him to his office in what Lockman considered was an uncharacteristically agitated manner. Lockman was concerned about his job as he knew that he had been furnishing information to Councilman Wages. Lockman also felt that in his agitation, Chief Villella might threaten him or insist that he stop investigating the chief's activities. Without Chief Villella's permission, and using a small concealed tape recorder, Lockman taped a portion of their conversation in the chief's office that day. The session never produced the anticipated threats nor any "smoking gun". Rather Chief Villella was upset that Sgt. Lockman had failed to inform him of an important meeting, saying "Once again you have discredited me and this department." Sgt. Lockman found the notice of the meeting under a pile of papers on the chief's desk, and the meeting ended. Sgt. Lockman had taped a counseling session on another occasion, but with the chief's permission. The above incident is the first and only time he operated his microrecorder surreptitiously in a meeting with the chief. On or about May 1, 1987, Sgt. Lockman was summoned again to Chief Villella's office and was stripped of his authority and his vehicle. Lockman surmised this was the result of the chief's learning the full details of his disclosures to Councilman Wages. The next day, Lockman met with John Luff and with Councilman Danson at town hall. He was upset at having been demoted. He played the tape for the two men, saying that he wanted to show them what he had to do to protect himself. He did not state that he had been conducting a criminal investigation, but he assured Councilman Danson that the tape was legal because he (Lockman) had been a party to the taped conversation. Lockman asked that a full independent investigation be done of the police department, but failed to provide specific details to John Luff's satisfaction. Lockman denied that he was out to "get" Jeff Villella. No independent investigation was conducted. Against the recommendation of the police complaint review board constituted under the policeman's bill of rights, the town council terminated Sgt. Lockman the end of May, 1987. After the termination, Jeff Villella found out about the taped conversation from Forrest Danson and John Luff. He was able to identify the occasion of the meeting from the quoted phrase, "Once again you have discredited me and the department". Upon advice, Villella reported the incident to the Orange County Sheriff's department and to the Florida Department of Law Enforcement. Criminal charges were brought against Richard Lockman, but were dismissed in a pre-trial intervention procedure. Richard Lockman sued the town and various individuals in federal court. The jury found that he had been wrongfully discharged as a "whistle blower", and awarded damages and reinstatement pursuant to Section 112.3187(9), F.S. The case is on appeal. According to one witness, the upheaval surrounding Windermere's police department was typical small town politics. There was no evidence of actual criminal wrongdoing by Chief Villella, although there was some evidence of casual or sloppy administrative practices. Richard Lockman exercised poor professional judgement by allowing himself to become part of the factionalism and by not reporting his concerns to an outside authority such as the Florida Department of Law Enforcement. He undertook his own private investigation. The circumstances surrounding Richard Lockman's intercept of Chief Villella's conversation reflect both fear for his job and zeal for his investigation. Those circumstances do not clearly establish the violation alleged in the administrative complaint.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the complaint against Richard C. Lockman, Jr. DONE and ENTERED this 31st day of May, 1990, in Tallahassee, Florida. MARY CLARK 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 31st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4539 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner Adopted in paragraph #1. Adopted in paragraph #2. Adopted in substance in paragraph #8 and 4. Adopted in paragraph #4. Adopted in paragraph #8. Respondent Adopted in paragraph #1. Adopted in paragraphs #2 and 3. Adopted in substance in paragraph #3. Adopted in paragraph #4. and 5. Rejected as irrelevant. and 8. Adopted in part in paragraph #8. The record does not establish that and Villella had just met with the council member. Adopted in paragraph #12. Adopted in paragraph #13. Adopted in paragraph #16. Rejected as irrelevant and unsupported by the record in this proceeding. Adopted in paragraph #15. Adopted in substance in paragraph #8. Adopted in paragraph #10. through 19. Rejected as unnecessary. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Office of General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Thomas J. Pilacek, Esq. Springs Offices 2101 W. State Road 434 Suite 105 Longwood, FL 32774 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, 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 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner was the subject of an unlawful employment practice in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Katrina Morgan, is a female who was employed by Respondent as a probationary Correctional Officer at the Columbia County Sheriff’s Office. Petitioner first worked for the Columbia County Sheriff’s Office from January 2001, through April 1, 2001, as a Correctional Officer. At the time, Petitioner was aware that the Columbia County Sheriff’s Office had a policy that required a Correctional Officer to personally call his or her immediate supervisor at least one hour before the scheduled start of the shift if he or she is unable to report for duty. The policy requires the officer to personally call so that inquiry can be made into how sick he or she is and when the officer might return. The information is necessary so that appropriate numbers of staff can be scheduled and planned for. Unfortunately, Petitioner’s son was involved in a serious traffic accident that resulted in serious injuries to him. As a result of her son’s injuries, Petitioner had many days of absence from her employment. She frequently failed to notify her supervisor when she was unable to report for duty. Such failure violated the Columbia County Sheriff’s Office policy regarding notification in such circumstances. As a result of the policy violations by Petitioner, she received several written warnings from her shift supervisor, then Sergeant Donald Little. In addition to written warnings, Sergeant Little spoke with Petitioner on the telephone about the proper utilization of the Columbia County Sheriff’s Office call- in policy. Eventually, after several such absences, Lieutenant Johnson contacted Petitioner to tell her that he could not permit Petitioner to stay employed with the Columbia County Sheriff’s Office and offered her an opportunity to resign. Petitioner verbally resigned her position with the Sheriff’s Office on March 21, 2001, and later faxed her written resignation to the Sheriff’s Office on March 22, 2001. After she left Columbia County, Petitioner was employed by the Florida Department of Corrections where she had, also, been previously employed. She worked for a period of approximately five to six months with the Department of Corrections and decided to return to the Columbia County Sheriff’s Office because it would give her better working hours for her family needs. On April 28, 2003, Petitioner reapplied for employment as a Corrections Officer with the Columbia County Sheriff’s Office. Knowing her past performance would be an issue and that attendance was an important issue at the jail, Petitioner stated on her April 28. 2003, application as follows: Was forced to give up my position with the Columbia County Jail back in 2001. If given the opportunity I will do whatever it takes to be sure the Columbia County Jail can depend on me. I will make sure I will report to my shift on time, no matter what the circumstances are, I hope you will give me a second chance to prove you can count on me. In the process of reviewing Petitioner’s background summary the Columbia County Sheriff’s Office became aware of some serious areas of concern in her employment history. Specifically, that she had been terminated from the Department of Corrections (DOC) New River Correctional Institute for attendance problems, and that she had poor work performance and problems with calling in at S&S Food Store. This history caused an initial recommendation against rehiring Petitioner. However, the Columbia County Sheriff’s Office was experiencing a severe staff shortage and as a result was desperately in need of new Correctional Officer. Because of the shortage, Petitioner was offered employment with the Sheriff’s Office. Petitioner was sworn in by the Sheriff as a Correctional Officer on November 6, 2003, and given a second chance to prove she was dependable. At this ceremony, the Sheriff personally spoke with Petitioner about attendance issues and that she was being given a second chance. In response, Petitioner gave the Sheriff assurances that this time she would comply with policies. The Sheriff told Petitioner that any further attendance problems would be cause for termination. On November 7, 2003, Petitioner began working in the Respondent’s field training program under the direction of Field Training Officer Howard. Beginning on November 19, she was placed on the night shift and assigned Officer Siraq as her field training officer. The field training program uses daily observation reports (DORs) to evaluate new officers through the field training process. The program is a multi-week training program that trains a new officer while on the job. Eventually, the new officer will work all three shifts at the prison. On November 19, 2003, Officer Siraq was not at work due to illness. Therefore, Petitioner was assigned Officer Chad Sessions as her field training officer. Petitioner was working in the control room at the Columbia County Jail with Officer Sessions, who engaged in a series of very explicit phone calls in Petitioner’s presence. In his telephone conversations he made a number of sexually explict statements, including stating he was going to fuck the girl he was speaking about; that he was “the candy man” and that he was coming to have sex with the girl and that he would do so from behind. Petitioner told Officer Sessions several times that she did not want to hear the sexual comments, but he nonetheless continued in his conversation. Officer Sessions engaged in three such phone calls lasting about 20 minutes. After repeating that she did not wish to have to deal with these types of comments, Petitioner left the control room approximately four times so that she did not have to listen to Officer Sessions conversations. On the daily observation report completed by Officer Sessions for that date, Officer Sessions wrote that Petitioner had engaged in several phone calls and breaks and that she needed to improve on staying at her assigned post without as many distractions. Petitioner spoke to Officer Sessions about his comments on the Daily Observation Report and told him that she did not agree with his statements and refused to sign the document because of her disagreement with him. Officer Sessions took the DOR to Corporal Barcia and informed Barcia that Petitioner would not sign the agreement. He thereafter came back to Petitioner and told her that Barcia had ordered the Petitioner to sign the DOR. Petitioner signed the DOR, but did not put any comments on the DOR in the “Trainee’s Comments” Section regarding her disagreement with Officer Sessions or the reason she left her post in the control room. At the end of the shift on the morning of November 20, 2003, Petitioner drafted a memorandum to now Lieutenant Little requesting time off from work. Petitioner did not mention the incidents with Officer Sessions that had occurred on her shift. In the memorandum, Petitioner stated that she had spoken with Beverly Jackson during her swearing-in ceremony regarding specific days off, and that Ms. Jackson had approved the time off. Also, Petitioner spoke to Officer Howard about the incident on the morning after her shift that ended on November 20, 2003. Petitioner told Officer Howard about Officer Sessions’ remarks and the fact that she initially refused to sign the DOR and Corporal Barcia’s orders to sign the DOR. Officer Howard was concerned when Petitioner gave him this information and told her that he would speak with Lieutenant Little. Officer Howard contacted Lieutenant Little to report the information given to him by Petitioner. Lieutenant Little was on vacation and received the call at home. Officer Howard stated that he needed to report this complaint because Petitioner stated she was uncomfortable with the language used by Officer Sessions in the control room. Lieutenant Little advised Officer Howard that the issue would be addressed upon his return from vacation. Upon returning to work on November 24, 2003, Lieutenant Little called a meeting to discuss Petitioner’s complaints about Officer Sessions’ DOR and phone calls. Petitioner attended the meeting, along with Officer Howard and Corporal Barcia. At this meeting, Petitioner stated that she disagreed with the DOR that Officer Sessions had issued her for November 19, 2003. Specifically, she disagreed with the ratings she received on the DOR. Petitioner was asked why she had not included her disagreements in the “Trainee’s Comments” Section of the DOR. After receiving no reply, Lieutenant Little instructed her that she could make those comments on the DOR, but that they would need to be initialed and dated accordingly. In the comments Section, Petitioner wrote: I had three phone calls, each one was no longer than three-four minutes. The phone calls were in regards to my children. (Staying in assigned post) Ofc[.] Sessions had me escorting I/M’s back and forth and taking paperwork to Ms. Morgan and other sections. When Ofc[.] Sessions was on the phone I would exit the main control room because I didn’t want to hear about his personal business. [Initialed: KM and dated 11-24-03] With regard to her complaints regarding Officer Sessions’ personal phone conversations, Petitioner was very vague in her recount at the meeting. Lieutenant Little asked Petitioner to state with particularity her complaint. She was asked to reduce her complaints to writing and to be as factual and detailed as she could so that Lieutenat Little could properly investigate the matter. Petitioner claims that Lieutenant Little instructed her not to be detailed about the incident. However, Petitioner’s recollection is not given any weight. He instructed her to write the incident report at a sergeant’s desk that was available to write her report. Corporal Barcia sat in the room with Petitioner while she wrote the report since the office was also used by him. Petitioner claimed she felt intimidated by the presence of Corporal Barcia. However, Corporal Barcia did nothing to intimidate her. He did not ask questions about her report or read her report. Petitioner’s testimony regarding her feelings of intimidation is not credible. Lieutenant Little forwarded the report up the chain of command to Captain Smithey. Officer Sessions was disciplined for his conduct and reprimanded in writing regarding his unprofessional phone conversations of November 19, 2003. Officer Sessions was also required to write a letter of apology to Petitioner. The letter of apology was also placed in Officer Sessions’ personnel file. Petitioner testified she never received Officer Sessions’ letter of apology. At some point after his return from vacation, Lieutenant Little received Petitioner’s memo requesting leave from work. After he reviewed the memo and noted Petitioner’s statements regarding Ms. Jackson’s approval, Lieutenant Little contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson told Lieutenant Little that she had not given any such approval and would not have done so since she did not have the authority to grant leave. Based on the information from Ms. Jackson and the fact that Ms. Jackson has no authority to approve leave requests for any Columbia County Sheriff’s Office employees, Lieutenant Little concluded that Petitioner was untruthful in her statements in the memorandum about time off. Such untruthfulness was a serious matter regarding Petitioner’s appropriateness to remain employed with the Sheriff’s Office. Lieutenant Little was also very concerned with the fact that Petitioner was already requesting time off since her attendance had been an issue in the past and she was being given a second chance for employment. In the meantime, as part of the field training program, Petitioner was assigned Officer Harris as her field training officer for a different shift. On November 28, 2003, only eight working days after being sworn in by the Sheriff, Petitioner became ill with a flu- type illness. There was no credible evidence that she was incapacitated by this illness to the point that she could not personally call her supervisor as the policy required. As in the past, Petitioner failed to report for duty and failed to properly call-in to her supervisor. This failure violated the Columbia County Sheriff’s Office policy for such absences. On November 29, 2003, Officer Harris, noted on Petitioner’s DOR that she exhibited unacceptable performance with regard to Columbia County Sheriff’s Office policies and procedures; namely, Petitioner needed to utilize the proper chain of command when calling-in. Petitioner wished to explain why she did not follow the call-in policy. Below Officer Howard’s comments, Petitioner inserted comments in a section of the DOR designated for field training officers’ use. Because her comments were in the inappropriate Section Petitioner was instructed to white-out the comments and to place them in the proper section titled, “Trainee’s Comments.” The original, whited-out statement read: The morning I called in Officer Howard was contacted first when I called main control. Mrs. Harris wasn't in yet and didn't have her number. When I called back at the main control, I was directed to speak with Corporal Green. The comments that Petitioner rewrote in the “Trainee’s Comments” Section on the same date were significantly changed by Petitioner to read as follows: The morning I was unable to come to work my husband contacted Ofc[.] Howard [and] was instructed to call Mrs. Harris[.] [W}hen he called Mrs. Harris wasn’t in yet so he was instructed to call back in 20 min[utes]. He was told to relay the message to me, for me to call Cpl. Green. I did so at 1:30 p.m. According to this account by Petitioner, she only made one phone call at 1:30 p.m. to her supervisor well-after the start of her shift and in violation of the Sheriff’s Office policy. Petitioner’s phone records reveal that five telephone calls were made on November 28, 2003, with four of them to the Columbia County Sheriff’s Office Jail. Petitioner testified that her husband, Ralph Morgan, made the first three telephone calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to her comments written on her November 29, 2003, DOR, the Petitioner testified that she telephoned the Jail two times that day, once at 6:24 a.m. and again at 1:20 p.m. However, Petitioner’s memory of the calls she made is not credible, given the more credible written statement she made on the DOR shortly after her absence occurred. Petitioner admits that none of the phone calls, either from Petitioner’s husband or herself complied with the Columbia County Sheriff’s Office policy regarding sick leave. On December 2, 2003, Lieutenant Little sent a memorandum to Captain Smithey recommending that the Petitioner be considered for termination. Lieutenant Little formulated his opinion based upon: Petitioner’s past attendance problems with the Columbia County Sheriff’s Office; her most recent failure to follow Columbia County Sheriff’s Office policy with regard to calling-in and attendance; and her untruthfulness with regard to her request for days off. As a result, and based upon the Sheriff’s recent imposition of strict probationary guidelines on Petitioner’s recent hiring Captain Smithey concurred in the recommendation. There was no evidence that either Little’s or Smithey’s actions were related to any complaint Petitioner had made regarding Officer Sessions. Captain Smithey forwarded the recommendation to the Sheriff. The Sheriff consulted with members of his command staff and reviewed Petitioner’s performance during her probationary period. The Sheriff determined that Petitioner had not satisfied the agency’s standards for the probationary period and had failed in the second chance he had given her. On December 3, 2003, the Sheriff withdrew the Petitioner’s appointment as a probationary Corrections Officer. At hearing, Petitioner admitted that the Sheriff’s decision to terminate her had nothing to do with her complaints to Lieutenant Little about Officer Sessions, but was rather based upon Petitioner’s failure to follow Columbia County Sheriff’s Office call-in procedure. She felt that it was Lieutenant Little and other Officers who had conspired against her to get her terminated. However, there was no credible evidence to demonstrate that such a conspiracy existed. After Petitioner’s termination she contacted the Sheriff to schedule a meeting to discuss her termination. At that meeting, Petitioner spoke with the Sheriff about her complaints regarding Officer Sessions and the issues she had with her DORs. The Sheriff was unaware of the issues she had with Sessions. Specifically, Petitioner claimed that her DOR had been altered or whited-out because she had made complaints to her supervisor in it. Petitioner brought with her to the meeting correct DORs from Officer Sirak as well as the November 29, 2003, DORs. Petitioner told the Sheriff that she believed her DORs were altered in retaliation for a complaint she had made to one of her supervisors. The Sheriff testified that Petitioner did not talk to him about anything with regard to Officer Sessions or sexual harassment during the post-termination meeting. The Sheriff explained to Petitioner that his decision to terminate her was based upon her failure to follow Columbia County Sheriff’s Office procedures. With regard to Petitioner’s DORs, the Sheriff made copies and told her that he would look into her concerns. The Sheriff investigated Petitioner’s concerns, but discovered that all of the DORs that had been changed were changed in order to correct errors made on them. There was no credible evidence to the contrary regarding these DORs. The Sheriff did not discover any reason to change his decision regarding Petitioner’s termination. During discovery, Petitioner originally claimed that it was her November 19, 2003, DOR that had been whited-out, and that she had physically witnessed Officer Howard white it out in his office. Petitioner later recanted her testimony and stated that it was in fact her November 29, 2003, DOR which had been whited-out. With regard to her November 29, 2003, DOR being whited-out, Petitioner changed her testimony to reflect that she witnessed Officer Howard white-out the DOR on November 29, 2003. Despite Petitioner’s numerous attempts to explain her version of the facts with regard to who did what and when to her DORs, even her modified testimony is inconsistent with the facts on record. The record reflects that Officer Howard was not on duty on November 29, 2003. He was off for the holiday beginning on November 27, 2003. His time card reflects that he was on annual leave for the Thanksgiving holiday starting on November 27, 2003, and that he did not return to work until the following, Monday, December 1, 2003. The 29th was a Saturday and Officer Howard worked weekdays and did not go to the jail on the 29th. Regardless of the fact that Petitioner could not have seen Officer Howard white-out her DOR because he was not at work on the day she specified, Petitioner’s testimony with regard to the DORs themselves also proved to be inconsistent with the facts. Petitioner asserted that the reason her DOR was whited- out was that she had included comments regarding sexual language she had overheard Officer Sessions use on the night of November 19th. However, upon examination of the November 29th DOR in question, it was discovered that Petitioner did not mention anything at all with regard to sexual comments or Officer Sessions, but that the comments she had inserted were actually her attempts at justifying why she had failed to properly call-in to her supervisor the day before. As indicated earlier, the reason the comments were whited-out was that Petitioner had inserted them in a Section designated for field training officer use only. As a result, Petitioner was required to move them to the appropriate Section designated as “Trainee’s Comments.” At hearing, Petitioner produced, after her deposition had already been taken, a new DOR allegedly drafted on November 28, 2003, by Officer Harris. This DOR was not contained in Petitioner’s personnel file and it is not known where the newly discovered DOR came from. There is no record evidence, other than Petitioner’s own assertions, that Petitioner’s November 28th DOR is authentic. Suspiciously, Petitioner did not produce this document in response to Respondent’s Request for Production. Nor did Petitioner mention it in her Answers to Interrogatories. She testified that she did not find it in all her papers until after her deposition. Petitioner’s testimony regarding this newly discovered DOR is not credible. Finally, Petitioner offered evidence regarding purportedly similary-situated employees. These employees were Charles Bailey, Thomas Daughtrey and Chad Sessions. Officer Charles Bailey had been employed with Columbia County Sheriff’s Office two times in his career. During his first employment, Officer Bailey was terminated for attendance problems similar to the problems Petitioner experienced in her employment with Columbia County Sheriff’s Office. When Officer Bailey was hired back, he was given strict probationary terms to abide by, including that he: be on time for all scheduled tours of duty; follow all Columbia County Sheriff’s Office call-in procedures; and to generally abide by all Columbia County Sheriff’s Office policies and procedures. During his second- chance employment Officer Bailey abided by all of the conditions set out for him. He did not abuse sick leave and he called-in properly pursuant to Columbia County Sheriff’s Office policy when he needed to take leave. Officer Bailey left the Columbia County Sheriff’s Office on good terms after his second employment. Officer Bailey is not similarly situated in any relevant aspects to Petitioner. Unlike Petitioner, Officer Bailey abided by all of his conditions upon rehire and properly followed Columbia County Sheriff’s Office call-in policy when he missed time. Officer Thomas Daughtry was a new employee and in the field officer training program. He was not a second-chance employee. During his training he missed several days, however, despite the fact that Officer Daughtrey missed some days during his training, Officer Daughtrey followed Columbia County Sheriff’s Office call-in policy every time he requested time off. Nevertheless, because he did in fact miss days during his training, Officer Daughtrey was given unsatisfactory reviews and was required to re-do part of his training. Because he properly called in and he was not a second-chance employee, Officer Daughtrey is not similarly situated to Petitioner in any relevant aspects. Officer Chad Sessions was employed two times with Columbia County Sheriff’s Office. Both times Officer Sessions resigned under good terms. Petitioner has attempted to compare his second employment with that of her second, probationary employment, specifically with regard to a written reprimand Officer Sessions received for failure to follow call-in policy on September 10, 2004. When Officer Chad Sessions was given a reprimand for failing to call-in properly on September 10, 2004, he was not a probationary trainee. Rather, Officer Sessions was a Field Training Officer, and the reason he was unable to phone the jail was due to the phone outages caused by Hurricane Frances. Officer Sessions could not phone the jail and he could not be reached because of the high winds and heavy rain produced by Hurricane Frances. Because Officer Sessions was not a probationary employee, and taking into consideration the extenuating circumstances surrounding the incident, Lieutenant Little decided to issue him a written reprimand. Furthermore, there is no record evidence that Officer Sessions came to the Sheriff’s Office with a prior termination and a poor employment history similar to that of Petitioner. As a result, Officer Sessions is not similarly situated to Petitioner in all relevant aspects.
Recommendation Based on upon the above findings of fact and conclusions of law, it is RECOMMENDED that the Petition For Relief should be dismissed. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of November, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katrina R. Morgan 4777 Shavesbluff Road Macclenny, Florida 32063 T.A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Leonard J. Dietzen, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Between July 25, 1977, and August 10, 1978, petitioner, Douglas A. Charity, was employed with the Division of Security, Department of General Services, first as a Capitol Security Officer I and then as a Surveillance Systems Operator. Thereafter, petitioner was employed for approximately ten months as a legislative intern budget analyst with the Senate Ways and Means Committee. From there, he was employed between June and November of 1979 as a research analyst with the Citizens Council for Budget Research. One of his prime projects in this position was a review and analysis of the Division of Motor Pools in the Department of General Services (DGA). From December of 1979 through August 27, 1980, petitioner was unemployed. He desired to find a position in an administrative, analytical or consulting capacity but was unsuccessful in finding employment. On August 27, 1980, petitioner was offered employment with the Division of Security within DGS. Based upon prior conversations, it was orally agreed between petitioner and administrators within the Division of Security that petitioner would be assigned to and be paid at the salary level for the position classified as a Capitol Security Officer I. The salary for this position was approximately $8,000.00 per year. It was further agreed that petitioner would not wear a uniform nor would he perform the duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties of an "administrative" nature and assist with the preparation and writing of a four-year plan containing an analysis of the Division of Security. Because the preparation of the four-year plan was not expected to take long and because the salary for a Capitol Security Officer was not as high as petitioner desired, it was anticipated by those within the Division of Security that petitioner would continue to seek other employment. Petitioner did, in fact, continue to seek other employment. One of his reasons for accepting employment with the Division of Security was to enhance his possibilities for employment in an administrative, analytical or consulting capacity through his record at DGS which would show his work on the four-year plan. Some two and a half months prior to petitioner's employment with the Division of Security on August 27, 1980, an outline for the four-year plan had already been prepared and approved. The purpose of the plan was to review the function and performance of the Division of Security and to set a plan for structural and program development and change. A portion of the plan pertained to position descriptions and classifications and the Division of Security's need for additional positions classified as management analyst and administrative assistant. The plan ultimately concluded that such positions were not needed within the Division of Security. The four-year plan was completed in February of 1981. In addition to his work on the four-year plan, both before and after February of 1981, petitioner performed duties in the following areas: reports on security personnel, procedures and problems; administrative correspondence and paperwork; budget issues; legislative bill analysis; and the attendance of meetings with DGS officials and legislative staff persons. His duties varied from day to day, dependent upon instructions he received from the Division Director or Assistant Director. Construing the facts presented at the hearing with respect to the duties actually performed by petitioner from August 27, 1980 through January 10, 1982, in a manner most favorable to petitioner, his actual duties compared with the job description for the classification of Administrative Assistant I. During the entire period in question, petitioner was classified as and received the salary of a Capitol Security Officer I. He never wore a uniform and he never performed the duties of a Capitol Security Officer I which duties included patrolling and maintaining the security of the Capitol Building and Legislative facilities on an assigned shift, locking doors, raising and lowering flags, maintaining logs and related security duties. Petitioner's immediate superiors within the Division of Security, as well as the Executive Director and those within the personnel office of DGS, were aware that petitioner was performing out-of-class duties for the Division of Security. Various efforts were made by DGS officials to help petitioner find employment in a higher position. The possibility of creating a management analyst position in another Division was considered, but that position was never established. Petitioner did not qualify for such a position until approximately October of 1981. The Chief of the Bureau of Personnel Management Services performed an audit of the Division of Security to ascertain if additional administrative positions were needed. While the first draft of the audit report recommended a reorganization of the Division to include an Administrative Assistant I position, it was ultimately concluded that the Division needed only two administrative positions -- the Director and the Assistant Director. Petitioner was informed of a position as an Assistant Facilities Services Coordinator in the Bureau of Property Management, but chose not to apply for that position. Though efforts were made by officials within DGS to either create a higher position for petitioner or place him in a vacant higher position, petitioner was never promised a specific position. Instead, he was informed of possibilities for placement in the future. He was also told that should such positions become established or available, he would have to qualify for the position and compete with other applicants. Petitioner discussed his increasing frustrations with his employment situation with officials within DGS. He also sought advice from a Personnel Program Analyst with the Department of Administration (DOA). She advised him that he could request an audit of his position through his supervisor, his own personnel officer or the DOA Bureau of Program Assistance, whose function is to perform desk audits to ascertain whether the duties performed by an employee are the same as the position description for that employee. She also informed petitioner that he could resolve his difficulties through the career service system or the grievance procedure set forth in the collective bargaining agreement. She indicated to him that he may wish to wait and see if the management analyst position (which had been discussed) would become available, in which case the problem might resolve itself if he were able to fill that position. The Department of Administration was never furnished with a current position description accurately reflecting the duties of petitioner's position. No one ever requested the DOA's Bureau of Program Assistance to perform a desk audit appraisal of petitioner's duties and classification, and petitioner's position was not among those randomly selected for desk audit review. By late November and throughout December of 1981, officials within DGS were becoming increasingly concerned with the fact that petitioner was performing out-of-class duties. Though efforts were maintained to find a position for petitioner which would more accurately reflect his actual job duties, such efforts were not successful. In mid-December 1981, petitioner filed a grievance pursuant to the collective bargaining agreement. After the final draft of the audit of the Division of Security indicated that no additional administrative positions were needed in that Division, petitioner was informed that he would be required to cease out-of-class work and that he must commence to perform the official duties of a Capitol Security Officer I effective January 11, 1982. Petitioner did assume the duties of a Capitol Security Officer on January 11, 1982, and has since functioned in that capacity.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED: That the relief sought by petitioner from the Department of General Services and the Department of Administration be DENIED, and that the petitions filed in Case Nos. 82-2733 and 82-3381 be DISMISSED. Respectfully submitted and entered this 14th day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983. COPIES FURNISHED: Robert B. Beitler, Esquire Post Office Box 12921 Tallahassee, Florida 32317 Sylvan Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32301 Daniel C. Brown, Esquire General Counsel 435 Carlton Building Tallahassee, Florida 32301 Thomas M. Beason, Esquire Suite 858, Barnett Bank Building Tallahassee, Florida 32301 Secretary Nevin Smith Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Thomas Brown, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32301
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 15th day of January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
Findings Of Fact The Petitioners, Donald Eugene Halpin, Richard Edward Jackson and Jeffery Lynn Fowler, are inmates under the supervision of the Respondent. Petitioners Halpin and Fowler are incarcerated at Glades Correctional Institution. Petitioner Jackson is incarcerated at Martin Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioners have challenged Rules 33-6.003, 33-6.0045 and 33-6.009, Florida Administrative Code. The Challenged Rules govern transfers of inmates and custody classification of inmates. The Challenged Rules were amended by the Respondent after the Respondent enacted and applied several emergency rules governing inmate transfers and custody classification of inmates. These emergency rules were adopted during 1990 and 1991. The Petitioners have alleged that the Challenged Rules are "arbitrary and capricious as applied to the Petitioners . . . ." The Petitioners have also alleged that the Challenged Rules are invalid because they were amended "through prohibited acts as defined in Chapter 120.54(9)(c), Fla. Stat., when the Respondent ran two emergency rules (33ER91-1 & 33ER91-2) back-to- back so that Amended Chapter 33-6, etc. (1991) could be implemented."
The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
