00-004703 Everett S. Rice, Pinellas County Sheriff vs. Thomas Broome Status: Closed Recommended Order on Tuesday, May 1, 2001.

Summary: Deputy sheriff should be terminated from employment for providing state attorney with untruthful information regarding a search for marijuana.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Petitioner, )

)

vs. ) Case No. 00-4703

)

THOMAS BROOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Ad ministrative Law Judge, Daniel Manry, conducted the

administrative hearing of this case on February 21 and 22, 2001,

in Largo, Florida.

APPEARANCES

For Petitioner: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler, et al.

1669 Mahan Cen ter Boulevard

Post Office Box 12186

Tallahassee, Florida 32317-2186

For Respondent: Richard C. Millian, Esquire

Tew, Barnes and Atkinson, L.L.P.

2655 McCormick Drive

Prestige Professional Park

Clearwater, Florida 33765

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent engaged

in conduct unbecoming a public servant in violation of

Chapter 89-404, Section 8, Laws of Florida, as amended by

Chapter 90-395, Section 8, Laws of Florida (the "Civil Service

Act") and Rules 3-1.1 and 3-1.3 of the Pinellas County Sheriff's

Office ("Rules 3-1.1 and 3-1.3").

PRELIMINARY STATEMENT

On November 6, 2000, Petitioner notified Respondent that an

Administrative Review Board (the "Board") had determined that

Respondent violated the Civil Service Act and Rules 3-1.1 and

3-1.3 and imposed disciplinary action by terminating

Respondent's employment. Respondent timely requested an

administrative hearing.

At the hearing, Petitioner submitted 26 exhibits and the

testimony of 11 witnesses for admission in evidence. Respondent

testified in his own behalf, called four other witnesses, and

submitted two exhibits for admission in evidence. The parties

submitted one joint exhibit. The identity of the witnesses and

exhibits and any attendant rulings are set forth in the

Transcript of the hearing filed on March 6, 2001. The parties

timely filed their Proposed Recommended Orders ("PROs") on

March 16, 2000.

FINDINGS OF FACT

1. Petitioner is a constitutional officer of the State of

Florida who is responsible for providing law enforcement and

correctional services within Pinellas County, Florida. At all

times pertinent to this case, Respondent was employed by

Petitioner.

2. On September 6, 1999, Respondent responded as backup

deputy sheriff to the apartment of Mr. Cornell Cunningham and

Ms. Karen Stewart. The purpose of the response was to arrest

Mr. Cunningham on a civil warrant for failure to pay child

support.

3. Deputy Ward Snyder was the primary deputy on the call.

Deputy Snyder is also employed by Respondent.

4. It was raining outside when the two deputies arrived at

Mr. Cunningham's residence. Mr. Cunningham invited both

deputies inside.

5. Once inside, Deputy Snyder talked to Mr. Cunningham and

advised him of the civil arrest warrant. Deputy Snyder also

contacted the Sheriff's Office to confirm that the warrant was

still valid.

6. While Deputy Snyder was talking to Mr. Cunningham and

the Sheriff's Office, Respondent conducted a security search of

the residence to confirm that no one else was present in

Mr. Cunningham's apartment. By the time Respondent completed

the security search, Deputy Snyder had finished his telephone

call.

7. Respondent concluded his search of the residence in the

kitchen. While standing in the kitchen, Respondent stood

adjacent to and viewed a countertop that separated the kitchen

from the dining area. The kitchen and counter top were well lit

with florescent lighting.

8. Respondent observed a marijuana seed on the countertop.

Respondent picked the seed up from the countertop and held it up

for Deputy Snyder to see. Respondent said, "We got a problem

here." Deputy Snyder and Mr. Cunningham were standing in the

dining room adjacent to the countertop that separated the

kitchen from the dining room. Deputy Snyder had a clear and

unobstructed view of the countertop.

9. A Nike shoebox was on the countertop inside the

kitchen. The shoebox contained a hinged top that opened from

one side and also contained circular holes in the sides.

10. Respondent, Deputy Snyder, and Mr. Cunningham were

within two or three feet of the shoebox. The top on the shoebox

was closed. There was no other access into the shoebox other

than through the top of the shoebox.

11. Respondent removed his flashlight from his belt,

turned it on, shined the light into the holes in the side of the

shoebox, and observed the contents of the shoebox. Respondent

then opened the shoebox and looked inside the shoebox.

12. Respondent observed a small bag of marijuana and a

small scale inside the box. Respondent then told Deputy Snyder

that there was "a problem." Respondent then showed Deputy

Snyder the contents of the box.

13. Mr. Cunningham denied ownership of the shoebox as well

as any knowledge of its contents. The deputies arrested

Mr. Cunningham based on the civil warrant for failure to pay

child support. Mr. Cunningham protested his arrest and asserted

that the matter had been taken care of. However, he did not

physically resist, did not threaten either deputy, and did not

display any intent to flee.

14. Neither deputy charged or arrested Mr. Cunningham at

the time with any offense related to the marijuana or the scale.

Deputy Snyder transported Mr. Cunningham to the Pinellas County

Jail on the original civil warrant.

15. While Deputy Snyder was transporting Mr. Cunningham to

jail, Respondent contacted Deputy Snyder by radio. Respondent

told Deputy Snyder that Respondent was going to charge

Ms. Stewart with criminal offenses related to the possession of

marijuana and the scale. Mr. Cunningham overheard the radio

conversation between the two deputies and stated that he would

claim ownership of the marijuana and scale. Upon hearing this,

Deputy Snyder advised Mr. Cunningham of his rights.

Mr. Cunningham then denied ownership of the contraband.

16. While Deputy Snyder transported Mr. Cunningham to

jail, Respondent remained at Mr. Cunningham's residence and

awaited the arrival of Ms. Stewart. With the consent of

Ms. Stewart, Respondent conducted a further search of the

residence. The further search revealed additional marijuana in

a drawer located in the kitchen where the shoebox was located.

17. Respondent combined the marijuana found in the drawer

with the seed on the countertop and the marijuana previously

found in the shoebox. Respondent then seized the contraband and

proceeded to the jail where he charged Mr. Cunningham with

felony possession of marijuana and misdemeanor possession of

paraphernalia.

18. Respondent prepared an arrest report stating that

Respondent had observed marijuana "scattered" on top of the

kitchen counter. Respondent also stated in the report that,

"Laying next to the scattered marijuana in a partially opened

Nike shoebox, was a clear plastic baggie filled with marijuana

and also laying next to that baggie was a silver hand-held

weight scale." Respondent’s supervisor, Sergeant Robert

Helmick, approved the report on the same day that Respondent

prepared the report.

19. On the following day, September 7, 1999, Deputy Snyder

prepared his supplemental report of the events occurring at the

Cunningham residence. In his report, Deputy Snyder stated that

Respondent "pointed out a seed on the kitchen countertop. There

was a Nike shoebox also on the countertop. Deputy Broome used

his flashlight to illuminate the inside of the box by shining

the light through a hole in the box. Deputy Broome then opened

the box and displayed a bag of what appeared to be marijuana and

a small balance scale." Deputy Snyder’s report also recited the

events occurring in his vehicle as he transported Mr. Cunningham

to jail.

20. Sergeant Helmick, who was off duty that day, did not

review or approve Deputy Snyder's report. Rather, Corporal

Larry Weiland approved Deputy Snyder's report. Sergeant Helmick

did not see Deputy Snyder’s report until much later.

21. Three days later, on September 10, 1999, Respondent

participated in a pre-filing investigation conducted at the

office of the State Attorney for Pinellas County. Assistant

State Attorney Patricia Cope conducted the investigation.

22. As part of the investigation, Ms. Cope took the sworn

testimony of Respondent. In his testimony to Ms. Cope,

Respondent repeated the same version of events found in his

report.

23. Respondent testified to Ms. Cope that he had observed

marijuana scattered on the countertop and that the top of the

shoebox on the countertop was ajar. Respondent further

testified that he was able to see the marijuana and the scale

inside the shoebox through the space created by the partially

open top of the shoebox.

24. Ms. Cope specifically asked Respondent whether the

shoebox was open or closed in order to confirm that Respondent's

search was within the scope of the plain view doctrine.

Respondent testified that the shoebox was open. Ms. Cope did

not speak with Deputy Snyder or review his report. As a result

of the investigation and the information provided by Respondent,

Mr. Cunningham was charged with felony possession of marijuana

and misdemeanor possession of paraphernalia.

25. Sometime after Ms. Cope's conversation with

Respondent, Deputy Snyder spoke with Sergeant Helmick concerning

the discrepancies between the two reports filed by Deputy Snyder

and Respondent. Sergeant Helmick advised Deputy Snyder to allow

the discrepancies to be worked out by the state attorney’s

office and to allow the criminal process to run its course.

Sergeant Helmick did not report the discrepancies to the state

attorney’s office, to his supervisors, or to anyone else. At

the time, Sergeant Helmick did not initiate any complaint or

investigation against either Respondent or Deputy Snyder.

26. In June 2000, depositions were set in the criminal

prosecution of Mr. Cunningham. Ms. Cope contacted Deputy Snyder

to inquire about the possibility of having the shoebox tested

for fingerprints. At that time, Deputy Snyder directed

Ms. Cope's attention to the discrepancies in the respective

reports prepared by Deputy Snyder and Respondent.

27. Ms. Cope reviewed the reports and the discrepancies

between the two reports. Ms. Cope concluded that the

discrepancies would create a problem in the criminal prosecution

of Mr. Cunningham.

28. The discrepancies between the accounts by Respondent

and Deputy Snyder created the possibility that Respondent had

conducted an illegal search of the shoebox that would render the

evidence seized as a part of that search inadmissible. The

plain view doctrine applicable to the law of search and seizure

would allow the search of the shoebox if the top had been ajar

and the contents of the shoebox could be observed. However, the

search would not be lawful if the shoebox top was closed and

observation of the contents could have only been accomplished by

shining a light through the holes in the box.

29. The differing statements in the reports of the two

deputies placed the credibility of Respondent in question. No

independent evidence was available, including the testimony of

Mr. Cunningham, from which it could be ascertained which deputy

was being truthful. The State Attorney’s Office deemed it

unfair to the defendant, the court, and the witnesses to proceed

on a case where the prosecution could not be certain if the

evidence was properly seized.

30. Ms. Cope referred the matter to Mr. Robert Lewis, her

supervisor. Mr. Lewis reviewed the reports of the two deputies

and agreed with Ms. Cope's assessment that the discrepancies

precluded any further criminal prosecution of Mr. Cunningham.

Ms. Cope cancelled the depositions set in the Cunningham case on

the grounds that Respondent had been accused of lying and that

the two investigating police officers recalled two inconsistent

views of the events that occurred at Mr. Cunningham's residence.

Mr. Lewis then instructed Ms. Cope to enter a nolle prosequi of

the charges against Mr. Cunningham.

31. After the State Attorney's Office filed the nolle

prosequi , the State Attorney’s Office referred the matter to the

Sheriff's Office. The matter was brought to the attention of

Major Samuel F. Lynn, the commander of the road patrol division.

Major Lynn prepared an administrative inquiry form that

disclosed the allegations communicated to him by the State

Attorney’s Office. Thereafter, the Administrative Investigation

Division of the Sheriff’s Office ("AID") initiated an

investigation.

32. During the investigation, Respondent and Deputy Snyder

each provided a sworn statement to the investigators. The

investigators also obtained a sworn statement from Ms. Cope and

a letter from Mr. Lewis. The investigators were unable to

locate Mr. Cunningham and therefore did not interview him or

ascertain his account of the matters at issue in this

proceeding.

33. During the investigation, Respondent had the

opportunity to offer additional information or comments.

Respondent’s attorney placed a statement on the record at the

conclusion of Respondent’s sworn statement. Respondent did not

offer any witnesses on his behalf or provide the investigators

with any information pertaining to the location of

Mr. Cunningham.

34. At th e conclusion of the investigation, the Board

conducted a hearing concerning the charges against Respondent.

The charges were:

a. Violation of Pinellas County Sheriff’s

Office Civil Service Act, Laws of Florida,

89-404, as amended by Laws of Florida,

90-395, Section 6, subsection 4: violations

of the provisions of law or the rules,

regulations, and operating procedures of the

office of the Sheriff;

b. Violation of Rule and Regulation of the

Pinellas County Sheriff’s Office, 3-1.1

(Level Five violation), 006, relating to

untruthfulness by being untruthful in

relation to the seizure of narcotics at the

Cunningham residence.

c. Violation of Rule and Regulation of the

Pinellas County Sheriff’s Office, 3-1.3

(Level Three violation), 060, relating to

standards of conduct by bringing discredit

upon the Pinellas County Sheriff's Office by

being untruthful and by inaccurately

documenting facts and circumstances

submitted to the State Attorney’s Office.

35. Respondent was present at the hearing, had an

opportunity to offer a statement, responded to questions, and

presented additional evidence. At the conclusion of the

hearing, the Board determined that Respondent violated the Civil

Service Act and Rules 3-1.1 and 3-1.3.

36. The violations resulted in a cum ulative point total of

65 points under the progressive discipline policy of the

Sheriff's office. The 65 points were added to 23 discipline

points that the Sheriff's Office had previously assessed against

Respondent for a total of 88 progressive discipline points.

When a deputy has 88 progressive discipline points, Petitioner's

progressive discipline policy authorizes discipline that ranges

from a ten-day suspension to termination. Petitioner terminated

Respondent's employment.

37. Respondent violated relevant portions of the Civil

Service Act and Rule 3-1.1 by being untruthful in relation to

the seizure of narcotics at the Cunningham residence.

Respondent conducted an improper search at the residence of

Mr. Cunningham. Respondent then charged Mr. Cunningham with a

felony and misdemeanor offense related to the fruits of that

search. Respondent then prepared a false report relating the

events occurring at Mr. Cunningham's residence and then provided

false testimony under oath to the State Attorney’s Office.

38. Respondent violated relevant portions of the Civil

Service Act Rule 3-1.3 and by bringing discredit upon the

Sheriff's Office. Respondent was untruthful by inaccurately

documenting facts and circumstances submitted to the State

Attorney’s Office . Respondent's conduct discredited the

Sheriff's Office by encouraging mistrust of law enforcement

officers and by creating the appearance that persons in law

enforcement engage in improper tactics to effectuate an arrest.

Respondent's untruthfulness resulted in the improper arrest and

prosecution of an individual.

39. Truthfulness on the part of a deputy sheriff is an

important part of the job. It is necessary in order to maintain

discipline and to preserve the integrity of the agency and the

functions performed. Respondent's untruthfulness violated those

essential elements and exposed the Sheriff's Office to the

potential for civil liability for an improper arrest.

40. Although much of Respondent's testimony was credible

and persuasive, there were significant parts of Respondent's

testimony that were neither credible nor persuasive. The flawed

part of Respondent's testimony was inconsistent with prior

statements by Respondent and with the testimony of Deputy

Snyder.

41. For the most part , no one inconsistency in

Respondent's testimony, standing alone, would be sufficient to

adversely affect Respondent's credibility. However, the

cumulative effect of all of the inconsistencies deprives

Respondent's testimony of credibility and persuasiveness

concerning material issues in this case.

42. In an earlier sworn statement to AID, Respondent

testified that he found marijuana on the countertop in

Mr. Cunningham's apartment, showed the seed to Deputy Snyder,

and then looked inside the shoebox. At the final hearing,

however, Respondent testified that he found the marijuana seed

on the countertop, saw the marijuana in the shoebox, and then

walked over to Deputy Snyder to show him the marijuana seed.

Respondent further testified at the final hearing that he could

not recall whether he picked up the seed first or saw the

marijuana in the shoebox first.

43. Respondent made inconsistent statements regarding the

location of Deputy Snyder and Mr. Cunningham at the time that

Respondent found the seed and searched the shoebox. At the

final hearing, Respondent insisted that Deputy Snyder and

Mr. Cunningham never got within ten to fourteen feet of the

shoebox. In an earlier sworn statement to AID, however,

Respondent indicated that Deputy Snyder and Mr. Cunningham were

two to three feet from the shoebox.

44. Respondent made inconsistent statements regarding the

position of the top of the shoebox at the time that Respondent

found the seed and searched the shoebox. Respondent testified

at final hearing that the shoebox was open between 1.5 and 2.0

inches. In a sworn statement to AID, however, Respondent

testified that the top of the shoebox was open less than one

inch.

45. Respondent made inconsistent statements regarding the

manner in which he shined light from his flashlight into the

shoebox. At final hearing, Respondent testified that he shined

light into the holes on the side of the shoebox. In an earlier

deposition, however, Respondent testified that he shined the

light in the top of the shoebox where the top was open and could

not remember if the shoebox had holes.

46. Respondent made inconsistent statements regarding the

location of the marijuana on the countertop. At the final

hearing, Respondent indicated that the marijuana was spread out

into the center of the dark countertop where there was a white

paint spot, as shown in one of the photographs in evidence.

However, the drawing provided during the course of Respondent's

earlier deposition did not indicate that marijuana was spread

into the center of the dark countertop where the white paint

spot was located.

47. The testimony of Respondent differed from that of

Deputy Snyder regarding the location of the shoebox. Respondent

placed the shoebox close to the wall where it may have been more

difficult for Deputy Snyder to view the box. Deputy Snyder

placed the shoebox in the middle of the countertop where it was

more easily seen.

48. The testimony of Respondent differed from that of

Deputy Snyder regarding the vantage points of Respondent and

Deputy Snyder. Respondent placed Deputy Snyder ten to fourteen

feet from the shoebox and stated that Deputy Snyder could not

see the shoebox or the marijuana from that vantage point.

Deputy Snyder placed himself within two to three feet of the

shoebox and stated that he had an unobstructed and clear view of

the countertop and the shoebox. Deputy Snyder's testimony was

consistent with an earlier sworn statement to AID by Respondent

indicating that Deputy Snyder and Mr. Cunningham were two to

three feet from the shoebox. See Finding of Fact 43.

49. The testimony of Respondent differed from that of

Deputy Snyder regarding the amount of marijuana on the

countertop. Respondent stated there was a considerable amount

or marijuana on the countertop. Deputy Snyder stated there was

no marijuana on the countertop except the seed displayed to him

by Respondent.

50. The testimony of Respondent differed from that of

Deputy Snyder regarding the actions taken by Respondent in

looking into the shoebox. Respondent testified that he

identified the debris, saw the marijuana in the shoebox, showed

the seed to Snyder, and then looked into the shoebox. Deputy

Snyder testified that Respondent showed him a seed, shined his

light into a hole in the shoebox, and then opened the shoebox.

51. The testimony of Respondent differed from that of

Deputy Snyder regarding the actions of Respondent after

discovering the marijuana and the shoebox. Respondent claimed

he walked from the kitchen into the living and dining area to

display the seed to Deputy Snyder. Deputy Snyder testified that

Respondent remained in the kitchen and displayed the seed across

the countertop.

52. The testimony of Respondent differed from that of

Deputy Snyder regarding the issue of whether Respondent had his

flashlight out before he looked into the shoebox or removed it

in order to look inside the shoebox. Respondent testified he

had the flashlight out the entire time he was in the residence.

Deputy Snyder stated that Respondent removed the flashlight from

his belt in order to look into the shoebox.

53. The testimony of Respondent differed from that of

Deputy Snyder regarding the issue of whether Deputy Snyder was

on the telephone when Respondent observed the marijuana and

shoebox and pointed these items out to Deputy Snyder.

Respondent stated that Deputy Snyder was on the telephone when

these events occurred. Deputy Snyder testified that he had

completed his call by the time Respondent arrived in the

kitchen.

54. The testimony of Respondent d iffered from that of

Deputy Snyder regarding the ability of Deputy Snyder and

Mr. Cunningham to be in the dining room and close to the

countertop. Respondent claimed that the dining room table and

chairs did not allow sufficient room for Deputy Snyder and

Mr. Cunningham to be within two or three feet of the countertop

in the dining room. Deputy Snyder and other testimony by

Respondent concerning the dimensions of the dining room and

table and chairs indicated there was sufficient room for Deputy

Snyder and Mr. Cunningham to stand in the dining room within two

or three feet of the shoebox.

55. The testimony of Respondent differed from that of

Deputy Snyder regarding Respondent's testimony that he searched

the shoebox, in part, because he was concerned over the

existence of booby traps in the shoebox. Deputy Snyder saw no

such concern indicated in Respondent’s actions.

56. Respondent's testimony that he was concerned the

shoebox contained booby traps is neither credible nor

persuasive. Respondent testified that the room was sufficiently

well lit to allow him to clearly see the marijuana inside the

partially open shoebox without shining his flashlight into the

shoebox before opening it. Respondent attempted to explain why

he used his flashlight in a well-lit kitchen by expressing

concern that the shoebox may have contained booby traps.

57. Regarding the discrepancies between the testimony of

Respondent and Deputy Snyder, there is no apparent motive for

Deputy Snyder to fabricate his version of the events or to

attempt to create any form of disciplinary problem for

Respondent. Respondent had no prior experience with Deputy

Snyder that would create a reason for Deputy Snyder to be

untruthful.

58. Respondent suggested that Deputy Snyder fabricated his

report and testimony in exchange for a transfer to a position as

a detective. That testimony is neither credible nor persuasive.

Deputy Snyder’s transfer occurred months before any concerns

arose pertaining to Respondent. There is no evidence that

Deputy Snyder played any role in the initiation of the

investigation. Deputy Snyder's initial disclosure to his

supervisor did not result in any investigation or action against

Respondent. The transfer to the detective unit was a lateral

transfer without any increase in rank, pay, or benefits.

59. The evaluation system in effect at the Sheriff's

Office provided a specific component for self-initiated arrests.

The arrest of Mr. Cunningham in this case falls into the

category of self-initiated arrests and could have resulted in a

positive evaluation component for Respondent, who already had 23

disciplinary points against him.

60. Respondent has a prior disciplinary history. In June

1999, Respondent received a one-day suspension and five

disciplinary points for violating rules that are not relevant to

this proceeding. In January 2000, Respondent received a three-

day suspension and 15 disciplinary points for violating rules

that are not relevant to this proceeding. The two violations

resulted in 20 progressive points with a range of discipline

from reprimand to a three-day suspension.

61. In August 2000, Respondent received a seven-day

suspension for violating rules that are not relevant to this

proceeding. The violations consisted of three level three

violations resulting in the assignment of 40 disciplinary

points. The 40 points were combined with ten "modified points"

from the prior violations and resulted in a total of 50

progressive points with a range of discipline from a five-day

suspension to termination.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

action. The parties received adequate notice of the

administrative hearing. Sections 120.57(1) and 120.68(8),

Florida Statutes (2000). (All section references are to Florida

Statutes (2000) unless otherwise stated.)

63. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the charging document

and the reasonableness of the proposed penalty. Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

64. The Civil Service Act authorizes the Sheriff's Office

to suspend, dismiss, or demote Respondent for offenses

enumerated in the Act. In relevant part, the Act provides:

(4 ) Cause for suspension, dismissal or

demotion shall include, but shall not be

limited to: negligence, inefficiency, or

inadequate job performance; inability to

perform the assigned duties, incompetence,

dishonesty, insubordination, violation of

the provisions of law or the rules,

regulations, and operating procedures of the

Office of the Sheriff, conduct unbecoming to

a public servant, misconduct, or proof

and/or admission use of illegal drugs. . . .

(5 ) The listing of causes for suspension,

demotion, or dismissal in this section is

not intended to be exclusive. The Sheriff,

by department rule, may add to this list of

causes for suspension, dismissal or

demotion.

65. The Civil Service Act authorizes the Sheriff to adopt

rules necessary to implement and administer the Act. Petitioner

has adopted rules and policies, including Rules 3-1.1 and 3-1.3,

which establish the standard of conduct to be followed by all

employees of the Pinellas County Sheriff’s Office.

66. Respondent violated relevant portions of the Civil

Service Act and Rules 3-1.1 and 3-1.3 by engaging in conduct

unbecoming a public servant and by being untruthful. The nature

and scope of those violations have been previously discussed in

the Findings of Fact and need not be repeated.

67. The point totals assigned by Petitioner are

appropriate under Petitioner's progressive discipline policy.

The discipline imposed is appropriate based upon the facts and

circumstances of this case and the progressive point totals

assessed against Respondent for prior violations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Board enter a Final Order finding

Respondent guilty of conduct unbecoming a public servant and

terminating Respondent's employment.

DONE AND ENTERED this 1st day of May, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2001.

COPIES FURNISHED :

Richard C. Millian, Esquire

Joseph A. Corsmeier, Esquire

Tew, Zinober, & Barnes, L.L.P.

2655 McCormick Drive, Prestige Professional Park

Clearwater, Florida 33759

B. Norris Rickey, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 34756

Keith C. Tischler, Esquire

Powers, Quaschnick, et al.

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317-2186

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.