01-003877 Manuel R. Dominguez vs. Everett S. Rice, Pinellas County Sheriff Status: Closed Recommended Order on Monday, April 1, 2002.

Summary: Deputy sheriff falsely arrested woman for making derogatory remarks and failed to do a complete and thorough arrest report. Justification for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL R. DOMINGUEZ, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3877

)

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was held

in this case on December 5, 2001, in Clearwater, Florida, before

William R. Cave, Administrative Law Judge, Division of

Administrative Hearings. The case was reassigned to

Administrative Law Jud ge Susan B. Kirkland for the purpose of

rendering a recommended order.

APPEARANCES

For Petitioner: William M. Laubach, Esquire

Pinellas County Police Benevolent

Association

14450 46th Street, Su ite 115

Clearwater, Florida 33762

For Respondent: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler,

Evans & Dietzen

1669 Mahan Center Boulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISS UE

Whether Petitioner violated Rules and Regulations of the

Pinellas County Sheriff’s Office, 3 - 1.1(002), 3 - 1.3(066), and

3 - 1.3(067), and, if so, whether Petitioner should be terminated

from his position with the Pinell as County Sheriff’s Office.

PRELIMINARY STATEMENT

On September 27, 200l, Respondent, Everett S. Rice, Sheriff

of Pinellas County (Rice), notified Petitioner, Manuel R.

Dominguez (Dominguez), that Dominguez was being terminated from

his position as a deputy sheriff with the Pinellas County

Sheriff’s Office (Sheriff's Office).

Administrative Law Judge William R. Cave conducted the

final hearing. At the final hearing, Petitioner testified in

his own behalf and called Jay D. Morey as his witness.

Petitioner’s Exhibits 1 - 4 were received in evidence. Respondent

called the following witnesses: Manuel R. Dominguez, MaryEllen

Ruvolo, Renee Herrington, Lydia Wardell, Kelvin E. Franklin,

Timothy Pelella, James LaBonte, John D. Bolle, and James Coats.

Respondent’s Exhibits 1, 3, 4, 7 - 27, 29, 30, and 37 - 39 were

admitted in evidence. Official recognition was taken of Section

877.03, Florida Statutes.

On December 17, 2001, Respondent filed a motion to

disqualify Administrative Law Judge Cave from rendering a

recommend ed order. The motion was granted on December 31, 2001.

The case was reassigned to Administrative Law Judge Susan B.

Kirkland to issue a recommended order.

FINDINGS OF FACT

Based on a review of the case file, the Transcript of the

final hearing, and the e xhibits entered into evidence, the

following Findings of Fact are found.

1. On July 13, 2001, Dominguez was assigned to foot patrol

at the K - Mart store in South Pasadena, Florida, as a community

police officer. At that time he had been employed by the

Pi nellas County Sheriff’s Office for approximately sixteen and

one - half years.

2. On the evening of July 13, 2001, Dominguez was standing

outside K - Mart talking to an employee of K - Mart, Renee

Herrington (Herrington). While talking to Herrington, Dominguez

observed a white van and a black sport utility vehicle (SUV)

parked in front of K - Mart next to a yellow curb. The area in

which the vehicles were parked was marked by a faded “no

3. Dominguez observed the vehicles for a time and when no

o ne moved the vehicles, he decided to cite both vehicles for

parking violations. He issued a citation to the white van and

then proceeded to the black SUV.

4. The SUV had been parked in front of K - Mart by Maryellen

Ruvolo (Ruvolo) while she and her niece went into K - Mart to make

a purchase. Ruvolo left the vehicle running, and her sister and

two nephews remained in the vehicle.

5. Dominguez went to the rear of the SUV and began writing

the ticket. Ruvolo’s sister, Eugenia Quinn (Quinn), got out of

the S UV and asked Dominguez to not issue the ticket and allow

her to move the vehicle. Dominguez refused her requests and

gave the ticket to Quinn. Dominguez started walking in the

direction of Herrington, who was sitting on a bench

approximately 30 yards awa y from the vehicles.

6. When Ruvolo returned to the vehicle, Quinn gave her the

ticket and told her that Dominguez would not let her move the

SUV. Ruvolo turned in the direction of Dominguez and shouted,

“Have a nice day, you fucking fat bastard.” Domin guez turned

around and went back to where Ruvolo was standing. He wanted to

confront her about her comment. Ruvulo started to yell after

Dominguez went up to her. He arrested her, handcuffed her, and

put her in his patrol car. The charge was disorderly conduct.

7. During the confrontation between Dominguez and Ruvolo,

none of the members of the public became involved in the dispute

and Ruvolo did not incite any members of the public to

participate in the dispute. She never physically or verbally

threa tened Dominguez. Ruvolo’s actions did not invade the right

of others to pursue their lawful activities. Herrington went

back inside K - Mart and other members of the public were not

disrupted in their entering and leaving K - Mart.

8. Quinn asked Dominquez why he was arresting her sister

and he told her that he did not get paid enough to put up with

what Ruvolo had said.

9. While he was arresting Ruvolo, Dominguez had requested

assistance from another deputy sheriff, Kelvin Franklin. When

Deputy Franklin a rrived on the scene the confrontation was over.

Dominguez asked Franklin to go inside K - Mart and get the address

of Herrington, who had witnessed the incident. Dominguez did

not request Franklin to take a statement from Herrington.

10. On the way to the jail, Ruvolo apologized to

Dominguez, and he told her to shut up. Prior to reaching the

jail, Ruvolo stopped for a few minutes in a parking lot and met

with his supervisor to get some in - service papers.

11. When they reached the jail, Dominguez was advi sed that

there were six persons to be processed ahead of Ruvolo.

Dominguez got out of the patrol car and turned off the ignition.

He did some paperwork on the trunk of his patrol car while

waiting. He left Ruvolo in the patrol car without air

conditioni ng and the windows rolled up for approximately six or

seven minutes. He returned to the vehicle and turned on the

ignition and waited to be called to take Ruvolo inside the

jailhouse. They waited approximately 20 minutes from the time

they got to the jai l until they entered it.

12. Ruvolo spent approximately five hours in jail and was

required to post bail before she could be released.

13. After arresting Ruvolo, Dominguez prepared his

incident/offense report and complaint/arrest affidavit.

Dominguez a dmitted during his testimony that neither the arrest

report nor the arrest affidavit set forth facts to establish the

elements for the offense of disorderly conduct, the crime for

which he arrested Ruvolo. Dominguez told the Administrative

Review Board (A RB) that he felt that Herrington’s peace had been

disturbed. Dominguez did not talk with Herrington between the

time he heard Ruvolo make her remarks to him and the time he

arrested Ruvolo. When asked why he had not included any

statements from Herringto n in his report, he replied,

“Laziness.” During the ARB hearing, Dominguez stated that he

had no excuse for not completing a thorough report and detailing

the elements of the crime. He acknowledged the position that he

placed the Sheriff's Office in when he did not do a complete and

thorough report.

14. Ruvolo and Quinn made complaints to the Pinellas

County Sheriff’s Office about Dominguez’s actions. The

complaints alleged that Dominguez was rude, intimidating, and

unprofessional in his behavior during the July 13, 2001,

incident. Ruvolo also alleged her arrest to be false.

15. As a result of the complaints, Sergeant Tim Pelella

(Pelella) of the Administrative Investigations Division of the

Pinellas County Sheriff’s Office conducted preliminary

interv iews of Ruvolo and Quinn. During the course of the

interview, Ruvolo recognized that she would have to pursue her

false arrest claim through the courts. Pellella referred the

matter to the commander of the road patrol division for

investigation of the no n - arrest components of the complaints.

16. The complaints were referred to Sergeant Jay Morey

(Morey), Dominguez’s immediate supervisor. Sergeant Morey

talked to Dominguez and Herrington, but did not talk to either

Ruvolo or Quinn. Morey concluded that he would not sustain the

complaint, but his conclusion was never finalized or reduced to

writing.

17. The arrest for disorderly conduct was referred to the

State Attorney’s Office for prosecution. The arrest report and

arrest affidavit were reviewed by A ssistant State Attorney Lydia

Wardell, who concluded that neither the report nor the affidavit

set forth sufficient facts to prosecute the case. As a result,

a No Information was filed by the State Attorney’s Office

disposing of the charges against Ruvolo , stating: “The facts and

circumstances revealed do not warrant prosecution at this time.”

18. As a result of the decision not to prosecute, the

Administrative Investigation Division of the Sheriff’s Office

retrieved the complaints from Morey and began it s investigation

of the false arrest complaint. It is the policy of the

Sheriff’s Office not to investigate allegations of false arrest

until such time as the State Attorney’s Office makes a decision

on whether to prosecute.

19. Dominguez was notified tha t an investigation was being

initiated. Dominguez gave a sworn statement to the

investigators assigned to the case. Ruvolo and other witnesses

also gave sworn statements.

20. After the investigation was completed, Dominguez was

given an ARB hearing. In accord with General Order 10 - 2 of the

Sheriff’s Office, at least one member of Dominguez’s chain of

command sat on his ARB hearing. Prior to the hearing, the ARB

members are given a copy of the investigation conducted by the

Administrative Investigation Division. At the hearing Dominguez

was permitted to offer a statement, to respond to questions, and

to present additional evidence.

21. The ARB made the following determination:

On July 13, 2001, Manuel Dominguez, #52303,

while on duty in Pinellas Coun ty, Florida;

did violate the Pinellas County Sheriff's

Civil Service Act Laws of Florida, 89 - 404 as

amended by Laws of Florida 90 - 395, Section

6, Subsection 4, by violations of the

provisions of law or the rules, regulations

and operating procedures of the Office of

the Sheriff.

1. Violate Rule and Regulation of the

Pinellas County Sheriff's Office, 3 - 1.1

(Level Five Violation), 002, relating to

Loyalty, to wit: Members shall maintain

their loyalty to the Sheriff's Office and

it's [sic] members as is cons istent with law

and professional ethics as established in

General Order 3 - 2.

Synopsis: On July 13, 2001, you failed to

abide by the PCSO Code of Ethics, to wit:

You acted officiously or permitted personal

feelings, prejudices, animosities or

friendships to influence your decisions

while in the performance of duty as a deputy

sheriff.

2. Violate Rule and Regulation of the

Pinellas County Sheriff's Office, 3 - 1.3

(Level Three Violation), 066, relating to

Performance of Duty, to wit: All members

will be e fficient in their assigned duties.

Synopsis: On July 13, 2001, you failed to

accurately document an incident that

resulted in the arrest of a citizen of this

county.

3. Violate Rule and Regulation of the

Pinellas County Sheriff's Office, 3 - 1.3

(Level T hree Violation), 067, relating to

Performance of Duty, to wit: All members

will be effective in their assigned duties.

Synopsis: On July 13, 2001, you effected an

arrest which the State Attorney's Office

could not prosecute because you were

ineffective in your assigned duties.

22. The violations resulted in a cumulative point total of

75 points. A Level Five violation is given a point value of 50

points. A Level Three violation is given a point value of 15

points. The ARB assigned a total of 25 poin ts for the two Level

Three violations and 50 points for the Level 5 violation. There

were no previous discipline points added. The discipline range

for 75 points is from a ten - day suspension to termination. The

ARB recommended the maximum penalty of term ination.

23. General Order 10 - 2 of the Pinellas County Sheriff’s

Office deals with disciplinary procedures. It provides that the

termination procedure to be followed is the same as that of a

member who is suspended without pay with certain additional

pro cedures. Only the sheriff has the authority to terminate a

member of the Sheriff’s Office. A member can only be terminated

“subsequent to an Administrative Investigation Division

investigation supported by findings and disciplinary action

recommended by a Administrative Review Board, and at the

instruction of the Sheriff” that the member be terminated.

24. At the time that the ARB made its recommendation that

Dominguez be terminated, Rice, the Pinellas County Sheriff, was

out of the state. He had discus sed Dominguez’s disciplinary

case with Chief Deputy Coats (Coats) prior to leaving the state.

Rice had specifically authorized Coats to impose discipline,

including termination, upon Dominguez that was consistent with

the ARB’s recommendations. Coats adv ised Rice of the findings

and recommendations of the ARB. Rice told Coats that he had no

problem with terminating Dominguez. Coats signed the inter -

office memoranda for Rice, advising Dominquez of the findings

and recommendations of the ARB and advising of the decision to

terminate Dominguez from employment with the Sheriff's Office.

Coats was instructed by Rice to terminate Dominguez. In his

deposition, Rice stated that Dominguez should have been

terminated and that it was his decision to approve Domin guez's

termination.

25. Dominguez did not know the elements of the offense of

disorderly conduct when he arrested Ruvolo. He felt that he

could arrest her for her inappropriate comments to him. At the

final hearing, Dominguez admitted that based on his long career

in law enforcement that he should have known what constituted

disorderly conduct.

26. Dominguez was insulted by Ruvolo's name - calling and

felt that her words were a challenge to the uniform of a deputy

sheriff. Dominguez allowed his persona l feelings to influence

his decision to arrest Ruvolo.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

28. Th e burden is on the party asserting the affirmative

of an issue in an administrative proceeding. 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). Respondent is

required to prove the allegations against Petitioner by a

preponderance of the evidence.

28. Chapter 89 - 404, Section 6, Laws of Florida, authorizes

the Sheriff to suspend, dismiss, or demote classified employees

for certain offenses and provides:

(4) Cause for suspension, dismissal, or

demotion, shall include, but not be limited

to: negligence, inefficiency, or inadequate

job performance; inability to perform

assigned duties, incompetence, dishonesty,

insubord ination, violation of the provisions

of law or the rules, regulations, and

operating procedures of the Office of the

Sheriff, conduct unbecoming a public

servant, misconduct, or proof and/or

admission of the 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

may, by departmental rule, add to the

listing of causes for suspension, dismissal,

or demotion.

29. Chapter 89 - 404, Section 2, Laws of Florida, authorizes

the Sheriff to adopt rules and regulations as are necessary to

implement and administer this section. Pursuant to this

authority, the Pinellas County Sheriff has adopted rules and

regulations and policies that establish the standard of conduct ,

which must be followed by all employees of the Sheriff's Office.

These rules are contained in General Order 3 - 1.

30. Rule and Regulation of the Pinellas County Sheriff's

Office 3 - 1.1(002) provides: "Members shall maintain their

loyalty to the Sheriff' s Office and its members as is consistent

with law and professional ethics as established in General Order

3 - 2." A violation of Rule and Regulation 3 - 1.1(002), is a Level

Five violation, the most serious category of violations.

31. General Order 3 - 2 of t he Pinellas County Sheriff's

Office establishes a Code of Ethics for all sworn members of the

Sheriff's Office. Section 3 - 2.1 requires all sworn members to

abide by the Law Enforcement Code of Ethics which provides:

I will never act officiously or permit

personal feelings, prejudices, animosities,

or friendships to influence my decisions.

With no compromise for crime and with

relentless prosecution of criminals, I will

enforce the law courteously and

appropriately . . . .

31. Respondent has alleged that Dominguez violated Rule

and Regulation 3 - 1.1(002) of the Pinellas County Sheriff's

Office. Respondent has established by a preponderance of the

evidence that Dominguez permitted his personal feelings to

influence his decision to arrest Ruvolo for disorde rly conduct

when the elements for such crime were not present at the time of

the arrest.

32. Ruvolo's remarks to Dominguez were constitutionally

protected and did not constitute disorderly conduct. In 1976,

the Florida Supreme Court upheld the constituti onality of

Florida's disorderly conduct statute, Section 877.03, Florida

Statutes, but placed a limiting condition on the extent to which

the statute could be utilized to arrest persons for mere words

used as a tool of communication. In White v. State , 33 0 So. 2d

3, 7 (Fla. 1976), the court stated:

We hold that mere words, used as a tool of

communication, are constitutionally

protected. The protection fails only when

1) by manner of their use , the words invade

the right of others to pursue their lawful

a ctivities, or 2) by their very utterance,

they inflict injury or intend to incite an

immediate breach of the peace.

33. Respondent has alleged that Dominguez violated Rule

and Regulation 3 - 1.1(066), which provides that "All members will

be efficient in t heir assigned duties." Respondent has

established by a preponderance of the evidence that Dominguez

violated Rule and Regulation 3 - 1.1(066) of the Pinellas County

Sheriff's Office. Dominguez did not accurately document the

arrest report and arrest affida vit concerning the arrest of

Ruvolo. He failed to include a statement from Herrington and

failed to set forth facts that constitute the elements of the

crime of disorderly conduct.

34. Respondent alleged that Dominguez violated Rule and

Regulation 3 - 1.1( 067) of the Pinellas County Sheriff's Office,

which provides that "All members will be effective in their

assigned duties." Respondent has established by a preponderance

of the evidence that Dominguez violated Rule and Regulation

3 - 1.1(067) of the Pine llas County Sheriff's Office. As a result

of Dominguez's improper arrest of Ruvolo and his failure to

document the elements of disorderly conduct in the arrest report

and arrest affidavit, there was no case against Ruvolo. The

State Attorney's Office cou ld not prosecute the case and filed a

No Information.

35. Dominguez argues that the disciplinary procedures of

the Sheriff's Office were not followed because the Chief Deputy

Sheriff signed the termination memorandum, the Sheriff had

determined that he wo uld go along with the recommendation of the

ARB prior to the ARB hearing, and no progressive discipline

measures were taken.

36. The Sheriff was familiar with the case file before he

left the state and before the ARB hearing was convened. He

authorized C oats to terminate Dominguez. Coats advised Rice of

the recommendations of the ARB, and Rice approved the decision

to terminate Dominguez. Whether Coats signed the memoranda on

behalf of Rice, is immaterial because Rice made the decision to

terminate Domi nguez and instructed Coats to do it.

37. The progressive discipline section of the Pinellas

County Sheriff's Office General Order 10 - 2 deals with the use of

retaining points toward future disciplinary actions. No

previous discipline points were added to the total points

assigned by the ARB. The ARB utilized the Progressive

Discipline Worksheet as required by Section 10 - 2.6F of the

Pinellas County Sheriff's Office Disciplinary Procedures. Based

on the Discipline Level and Point Scale contained in the

dis ciplinary procedures, the ARB could have assigned 15 points

for each Level Three violation, but chose to reduce the total 30

points to 25 points. There was no violation of the progressive

discipline procedures of the Pinellas County Sheriff's Office.

38. The discipline range for 75 points is from a ten - day

suspension to termination. Given the seriousness of Dominguez's

violations, it was not an abuse of discretion to terminate

Dominguez.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons of

Law, it is RECOMMENDED that the Civil Service Board of Pinellas

County Sheriff's Office enter a Final Order finding Manuel R.

Dominguez guilty of violating the Rules and Regulations of the

Pinellas County Sheriff's Office as set forth in September 2 7,

2001, inter - office memorandum and upholding the termination of

Manuel R. Dominguez from his employment as a deputy sheriff with

the Pinellas County Sheriff's Office.

DONE AND ENTERED this 1st day of April, 2002, in

Tallahassee, Leon County, Florida.

_ __________________________________

SUSAN B. KIRKLAND

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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2002.

COPIES FURNISHED :

William M. Laubach, Esquire

Pinellas County Police Benevolent

Association

14450 46th Street, North

Suite 115

Clearwater, Flor ida 33762

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 Orde r in this case.