01-001007 Leighwynn Howell vs. Everett S. Rice, Pinellas County Sheriff Status: Closed Recommended Order on Friday, September 21, 2001.

Summary: A Sergeant with the Pinellas County Sheriff`s Office was alleged to have violated professional standards during his duty shift. Resolved by Stipulation Agreement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEIGHWYNN HOWELL, )

)

Petitioner, )

)

vs. ) Case No. 01-1007

)

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, this cause came on for formal hearing

before Fred L. Buckine, a duly-appointed Administrative Law

Judge of the Division of Administrative Hearings on August 16,

2001, in Largo, Florida.

APPEARANCES

For Petitioner : Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler,

Evans & Dietzen

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317-2186

For Respondent : Darryl E. Rouson, Esquire

3737 Central Avenue

St. Petersburg, Florida 33713-8338

STATEMENT OF THE ISSUE

The issue in this cause is whether Respondent engaged in

conduct while on duty in 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: (1) conduct

unbecoming a public servant; and (2) sexual harassment and

discrimination.

PRELIMINARY STATEMENT

This matter began when Petitioner received an anonymous

letter alleging knowledge that a sergeant, assigned the Third

Shift, North Division, who had previously been moved because of

a sexual harassment charge, was engaged in inappropriate

behavior with deputies and female inmates. The anonymous letter

was given to the Administrative Investigation Division (AID) for

investigation, which resulted in charges filed against

Respondent and presented to the Administrative Review Board

( ARB). The ARB determined that Respondent had, in fact, engaged

in the alleged misconduct. The ARB recommended, and Sheriff

Rice approved, the demotion of Respondent from sergeant to

corporal, a 15-day suspension without pay, and a change of shift

assignment. Respondent filed a timely appeal on March 12, 2001,

and the Initial Order was issued on March 13, 2001.

Petitioner's first Motion for Continuance was filed on April 16,

2001, and an Order Granting Continuance was issued on May 16,

2001.

On August 8, 2001, the parties filed their Joint Pre-

Hearing Statement wherein Petitioner listed 12 witnesses in

addition to Respondent's witnesses, and Respondent listed 36

witnesses and 54 exhibits. On August 15, 2001, Petitioner filed

its second Motion to Continue the final hearing that was heard

and denied at the final hearing on August 16, 2001.

At the final hearing and prior to opening the record for

testimony, the undersigned conferred with counsel regarding the

intended schedule for witnesses' testimony.

Both counsel requested a conference with their respective

clients. Approximately two hours later, counsel announced that

they had reached a settlement agreement, in principle, needing

only the final approval of Sheriff Rice. The record was opened

and counsel announced their settlement agreement terms and

conditions on the record.

On August 31, 2001, the parties filed their Joint

Stipulated Settlement Agreement and their executed General

Release and Waiver of Right to Sue. In their Joint Settlement

Agreement, the parties requested entry of an order affirming the

terms of this Joint Stipulated Agreement and dismissing this

appeal.

FINDINGS OF FACT

1. As noted above in the Preliminary Statement, the

parties have entered a Joint Settlement Agreement and General

Release and Waiver of Right to Sue. Their agreement, in

pertinent part, includes the following:

1. The demotion of Petitioner from

sergeant to detention deputy shall remain in

full force and effect as previously imposed

by Respondent.

2. The fifteen-day suspension imposed

upon Petitioner as discipline . . . shall be

reduced to a ten-day suspension. Respondent

shall reimburse Petitioner for five days of

back pay as a result of the reduced

suspension, including any benefits

associated with such pay and the deduction

of all required taxes and contributions.

3. Petitioner shall execute a full

release of all claims against Respondent up

to and including the date of the execution

of the release.

4. Each party shall bear his own

attorney's fees and costs.

2. The parties' Joint Stipulated Settlement Agreement and

General Release and Waiver of Right to Sue constitute an

informal disposition of all disputed issues of material facts in

this proceeding.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to Chapters 120, Florida Statutes, and Laws of

Florida, 89-404, as amended by Laws of Florida, 90-395.

4. Section 120.57(4), Florida Statutes, provides as

follows:

(4) INFORMAL DISPOSITION : Unless precluded

by law, informal disposition may be made of

any proceeding by stipulation, agreed

settlement , or consent order.

( emphasis supplied.)

5. Here, the parties have informally disposed of all

disputed issues of material fact by entering a Joint Stipulated

Settlement Agreement and a joint General Release and Waiver of

Right to Sue. The language of the underscored above requires

entry of an order "adopting the agreed settlement."

6. Consistent with Section 120.57(4), Florida Statutes, it

is hereby RECOMMENDED:

That the Petition filed in the cause by Leighwynn Howell

against Everett S. Rice, in his official capacity as Sheriff of

Pinellas County, Florida, be DISMISSED with prejudice.

DONE AND ENTERED this 21st day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of September, 2001.

COPIES FURNISHED :

B. Norris Rickey, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 34756

Darryl E. Rouson, Esquire

3737 Central Avenue

St. Petersburg, Florida 33713-8338

Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler,

Evans & Dietzen

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 must be filed with the agency that

will issue the Final Order in this case.