03-000627 Everett S. Rice, Pinellas County Sheriff vs. Lendel Bright Status: Closed Recommended Order on Wednesday, September 3, 2003.

Summary: Respondent repeatedly made false statements about his extramarital affair with subordinate and use of Agency property for personal purposes after an investigation concerning these issues. Repeated false statements are bases for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0627

)

LENDEL BRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to stipulation of the parties during a telephonic

motion hearing on June 10, 2003, this matter was submitted to

the Division of Administrative Hearings and its duly - designated

Administrative Law Judge, Carolyn S. Holifield, on undisputed

facts, witho ut further evidentiary hearing.

APPEARANCES

For Petitioner: Keith C. Tischler, Esquire

Allen, Norton and Blue, P.A.

1669 Mahan Center Boulevard

Post Office 12186

Tallahassee, Florida 32317 - 2186

For Respondent: Kenneth J. Afi enko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

Whether Respondent was terminated as a deputy sheriff for

offenses for which he had been previously disciplined and, if

so, whether the termination is barred by principle of "double

jeopardy."

PRELIMINARY STATEMENT

By interoffice memorandum dated February 10, 2003,

Respondent, Lendel Bright, was notified by Petitioner,

Everett S. Rice, Pinellas County Sheriff, that the

Administrative Review Board determined that Respondent had

violated the Pinellas County Sheriff's Office Civil Service Act

(Civil Service Act) and rules and regulations of the Pinellas

County Sheriff's Office. Specifically, Respondent was charged

with vi olating Pinellas County Sheriff's Office rules relating

to truthfulness, falsification of Sheriff's Office records,

bringing discredit to the Sheriff's Office, and the use of

agency equipment for personal purposes. Based on these charges,

Respondent was t erminated as an employee of the Pinellas County

Sheriff's Office.

Respondent timely challenged the charges and the penalty

imposed and requested a formal hearing. On or about

February 25, 2003, the matter was forwarded to the Division of

Administrative H earings for assignment of an Administrative Law

Judge to conduct the hearing. By notice issued May 5, 2003, the

final hearing was set for June 10, 2003.

On May 30, 2003, prior to the final hearing, Respondent

filed a Motion for Final Summary Judgment and Waiver of

Requirements of Pre - Trial Order and Formal Hearing and a

Memorandum of Law in Support of Motion for Final Summary

Judgment. On June 3, 2003, Petitioner filed a response to

Respondent's motion for summary final order and a cross - motion

for summa ry final order (Motions). Subsection 120.57(1)(h),

Florida Statutes, authorizes the issuance of summary final

orders in cases in which the Administrative Law Judge has final

order authority. Because this is not such a case, the Motions

are deemed to be a nd considered a motion for summary recommended

order and a cross - motion for summary recommended order. On

June 10, 2003, a telephone hearing on the Motions was held.

During that proceeding, the parties made legal arguments and

stipulated that there were no genuine issues of material fact

regarding the charges against Respondent. The only issues are

those set forth above.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. At all times pertinent to this case, R espondent, Lendel

Bright (Respondent), was employed by Petitioner, Everett S.

Rice, Pinellas County Sheriff (Petitioner or the Sheriff), as a

deputy sheriff or a sergeant.

2. In May 2000, Petitioner received a complaint from Mark

Parker, the husband of B elinda Parker, that his wife was having

an extra - marital relationship with Respondent. At the time this

complaint was filed, Respondent was a sergeant with the Pinellas

County Sheriff's Office (Sheriff's Office), assigned to the

Child Protection Investiga tions Division, and Belinda Parker was

a civilian employee in the same division and was supervised by

Respondent.

3. As a result of the May 2000 complaint, Respondent's

supervisor, Lt. Dennis Fowler, forwarded an Administrative

Inquiry Form to the Admini strative Investigations Division

(AID). The inquiry form was subsequently returned to the

command level for investigation and documentation.

4. When questioned by Lt. Fowler and Capt. Rodney Steckel,

Respondent denied having an extra - marital relationshi p with

Ms. Parker. The allegation was also denied by Ms. Parker.

5. The May 2000 complaint filed by Mr. Parker was later

determined to be unfounded based upon several factors. First,

during the investigation, both Respondent and Ms. Parker made

stateme nts denying the relationship. Second, Mr. Parker

retracted his May 2000 complaint and requested that the matter

be abandoned.

6. On or about January 31, 2001, Mr. Parker again alleged

that Respondent was having an extra - marital relationship with

his wif e. In this instance, the complaint was made to

Capt. Steckel, who on February 1, 2001, made a second complaint

to the Sheriff's Office.

7. As a result of this second complaint, an investigation

was initiated and conducted by the AID. This matter was

as signed Administrative Inquiry No. AI - 01 - 009 (AI - 01 - 009).

8. During the course of the investigation of AI - 01 - 009,

Respondent, while under oath, denied having an extra - marital

relationship with Ms. Parker. Respondent also denied utilizing

his agency cell phone for personal phone calls to Ms. Parker.

9. At the conclusion of the investigation of AI - 01 - 009,

the matter was referred to the Administrative Review Board

(ARB). Thereafter, the ARB convened to conduct a proceeding.

10. At the ARB hearing, Respon dent, while under oath,

denied having an extra - marital relationship with Ms. Parker.

Respondent also denied utilizing his agency cell phone for

personal phone calls to Ms. Parker.

11. In making these denials of the existence of an extra -

marital relations hip with Ms. Parker to the AID investigators

and to the ARB, Respondent was untruthful.

12. At the conclusion of the ARB hearing, the ARB

recommended to Petitioner that Respondent be found guilty of

violating Sheriff's Office rules and regulations related to

untruthfulness and performance of duty. The ARB recommended

that Respondent receive a ten - day suspension for these

violations.

13. On June 19, 2001, after the ARB hearing, at the

request of Respondent's attorney, Petitioner agreed to modify

the ARB r ecommendation. As part of this agreement, Petitioner

did not accept the ARB's recommended finding of untruthfulness

against Respondent, but instead found that Respondent was guilty

of a single Level Five violation related to duties and

responsibilities. For Respondent's part, he agreed to accept a

demotion from the rank of sergeant to deputy sheriff and to

waive his right to seek review of the discipline under the Civil

Service Act.

14. This agreement was reached to avoid Respondent's

jeopardizing his la w enforcement certificate with the State of

Florida, Department of Law Enforcement, by having a finding of

untruthfulness.

15. Respondent voluntarily entered into the agreement

discussed in paragraphs 13 and 14, and he received the benefit

of the agreemen t. Pursuant to the agreement, there was no

finding of guilt against Respondent as it relates to

untruthfulness, and Respondent was demoted from sergeant to

deputy sheriff, effective July 15, 2001, and continued to work

for the Sheriff's Office. With this resolution, AI - 01 - 009 was

closed on or about June 19, 2001.

16. The Notice of Sustained Complaint, dated June 19,

2001, to Respondent from the Sheriff, memorialized the agreement

between the Sheriff and Respondent that there would be no

finding as to unt ruthfulness and that Respondent would be

demoted. This Notice of Sustained Complaint concerned AI - 01 - 009

and was based on incidents which occurred between "January 2000

and February 2001."

17. Between December 2001 and December 2002, after

entering into t he agreement discussed in paragraphs 13, 14,

and 15, Respondent wrote a series of memoranda and

correspondence to the Sheriff and others within the Sheriff's

Office administration. In those written communications,

Respondent continued to deny the existenc e of an extra - marital

relationship between himself and Ms. Parker. In those

communications, Respondent also alleged that the investigation

in AI - 01 - 009 was conducted inappropriately, that he was not

treated fairly and equally, and that he had not requeste d the

demotion that he agreed to in June 2001.

18. In making the denials described in paragraph 17

regarding the extra - marital relationship between himself and

Ms. Parker and the manner in which AI - 01 - 009 was conducted and

resolved, Respondent was untruth ful.

19. In February 2002, the AID again received a complaint

from Mr. Parker that his wife was continuing to have an extra -

marital relationship with Respondent.

20. As a result of the complaint and additional

information provided by Mr. Parker, the AID again initiated an

investigation into the allegations of the extra - marital

relationship.

21. In July 2002, Ms. Parker provided a sworn statement

admitting the existence of an extra - marital relationship between

herself and Respondent. Ms. Parker also prov ided additional

information regarding the circumstances surrounding that extra -

marital relationship.

22. In December 2002, the Sheriff submitted an interoffice

memorandum to the AID notifying Respondent that he was the

subject of an administrative investi gation regarding violations

related to truthfulness and conduct unbecoming a member of the

Sheriff's Office. Petitioner stated in the interoffice

memorandum that as a result of Respondent's correspondence, in

which he repeatedly denied having an inappropr iate relationship

with Ms. Parker and claimed that the prior investigation was

unfair, Petitioner "feels obligated to take the extraordinary

measure to direct the Administrative Investigations Division to

're - examine this particular matter' and present the findings to

the ARB."

23. As a result of the December 2002 interoffice

memorandum, the AID conducted an investigation into the actions

of Respondent as they related to his conduct, the use of agency

equipment, and his testimony and statements previously given to

supervisors or in previous investigations. This matter was

assigned Administrative Inquiry No. AI - 02 - 082 (AI - 02 - 082).

24. During the investigation of AI - 02 - 082 that followed,

the AID confirmed the statement of Ms. Parker regarding the

existence of an extra - marital relationship between her and

Respondent.

25. As part of the investigation of AI - 02 - 082, on

January 22, 2003, Respondent gave a sworn statement, in which he

admitted to having an extra - marital relationship with

Ms. Parker. Respondent a lso admitted that he had been

untruthful in his previous statements regarding the extra -

marital relationship.

26. During the investigation related to AI - 02 - 082, in his

January 22, 2003, sworn statement, Respondent admitted to

utilizing Sheriff's Office pr operty, a cell phone, for personal

purposes without providing reimbursement to the Sheriff's Office

for the personal usage. Many of these phone calls were to

Ms. Parker and took place after the closure of AI - 01 - 009.

27. During the investigation related t o AI - 02 - 082, in a

sworn statement, Respondent admitted to authoring official

Sheriff's Office documents, interoffice memoranda, and

correspondence, that contained falsehoods. In one memo, written

in or about December 2001, to the chief deputy in the Sheri ff's

Office, Respondent stated, "I never had or considered having an

affair with Mrs. Parker, there was only a personal friendship"

and that he "was truthful at all times." These memoranda were

official Sheriff's Office communications that were written an d

disseminated by Respondent after the closure of AI - 01 - 009.

28. Notwithstanding Respondent's repeated and continuous

denials in official Sheriff's Office documents, he continued to

have an extra - marital relationship with Ms. Parker after

AI - 01 - 009 was se ttled and closed. By Respondent's own

admission, the extra - marital relationship with Ms. Parker began

in January 2000 and did not end until February or March 2002.

29. After the investigation of AI - 02 - 082 was concluded, an

ARB hearing was convened on or about February 10, 2003. During

this proceeding, Respondent again admitted to having an extra -

marital relationship with Ms. Parker and to his having been

untruthful in his previous statements regarding the extra -

marital relationship. Respondent also admi tted that he utilized

the Sheriff's Office property, a cell phone, for personal

purposes without providing reimbursement to the Sheriff's Office

for the personal usage. Moreover, Respondent admitted that he

wrote and distributed interoffice memoranda and correspondence,

referenced above, that contained falsehoods.

30. Based on its review of the allegations and the

evidence related to AI - 02 - 082, the ARB determined that

Respondent was guilty of violating the Civil Service Act and the

rules, regulations, and operating procedures of the Sheriff's

Office.

31. A February 10, 2003, interoffice memorandum sets forth

the violations with which Respondent is charged and the conduct,

which is the basis of those violations. The violations and

conduct are summarized as follows:

a. Pinellas County Sheriff's Office Rule

3 - 1.1 (Level Five violation), 5.6 related to

Truthfulness; to wit: Members are required

to be truthful at all times when acting in

an official capacity, whether under oath or

not, such as when offeri ng testimony in

legal proceedings and administrative

investigations.

Synopsis: Respondent was untruthful,

repeatedly, to both supervision and the

Administrative Investigations Division

(while under oath) concerning his

involvement in a paramour relatio nship.

b. Pinellas County Sheriff's Office Rule

3 - 1.1 (Level Five Violation), 5.14 related

to Conduct Unbecoming Members of the Agency,

to wit: Knowingly making false entry or

cause false entry to be made in any official

record of the Sheriff's Office .

Synopsis: Respondent knowingly made false

entry on official agency records by

repeatedly submitting inter - office

memorandums, which he now admits contained

both falsehoods and mistruths.

c. Pinellas County Sheriff's Office Rule

3 - 1.3 (Level Three Violation), 3.1 related

to Standard of Conduct, to wit: Members

shall conduct their private and professional

lives in such a manner as to not bring

discredit to the Sheriff's Office.

Synopsis: Due to Respondent's paramour

relationship and his attempt to perpetrate

falsehood and mistruths concerning the

administrative investigative process, he

brought discredit to the Sheriff's Office.

d. Pinellas County Sheriff's Office Rule

3 - 1.1 (Level Three Violation), 3.1 related

to Unauthorized Use of Agency Equipment, to

wit: Members will not appropriate equipment

owned by the agency for their own use.

Synopsis: Respondent repeatedly used the

agency - issued cellular telephone for

personal use and failed to reimburse the

agency for those calls.

32. The vio lations resulted in a cumulative point total

of 75, which allows for discipline from a ten - day suspension to

termination.

33. The ARB recommended to the Sheriff's Office that

Respondent be terminated. The Sheriff reviewed the

recommendation of the ARB an d agreed with the recommendation.

In the Notification of Sustained Complaint dated February 10,

2003, the Sheriff notified Respondent that he was being

terminated from employment with the Sheriff's Office. The

notification indicated that the complaint wh ich was the basis of

the sustained complaint involved incidents that occurred on

"June 2000 through [p]resent."

34. The violations in AI - 01 - 009 and the underlying

conduct, which was the basis for those violations, were resolved

pursuant to the negotiated settlement agreement between the

Sheriff and Respondent. Therefore, that conduct is not

actionable in a subsequent disciplinary proceeding. However,

the Sheriff is not precluded from imposing discipline for

conduct which occurred after AI - 01 - 009 was clo sed.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

action pursuant to Sections 120.57 and 120.68(8), Florida

Statutes, and Chapter 89 - 404, Section 8, Laws of Florida, as

amend ed by Chapter 90 - 395, Section 8, Laws of Florida.

36. Chapter 89 - 404, Section 6, Laws of Florida, as amended

by Chapter 90 - 395, Laws of Florida, authorizes Petitioner to

suspend, dismiss, or demote classified employees for offenses

enumerated in that prov ision. That section provides, in

relevant part, that disciplinary action may be imposed for

inefficiency or inadequate job performance; dishonesty;

violation of the provision of law or the rules, regulations, and

operating procedures of the Sheriff's Offi ce; and conduct

unbecoming to a public servant.

37. Pursuant to Chapter 89 - 404, Laws of Florida, as

amended by Chapter 90 - 395, Laws of Florida, deputy sheriffs are

civil service or classified employees and are subject to the

provisions thereof.

38. The c harging document filed against Respondent in this

proceeding alleges that Respondent violated rules and

regulations of the Sheriff's Office related to truthfulness,

conduct unbecoming members of the agency, standard of conduct,

and unauthorized use of agen cy equipment.

39. It is well established that the 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). However, that burden is inapplicable in this case

because Respondent does not dispute the material factual

allegations.

40. Respondent contends that Sheriff's decision to

termina te Respondent's employment is barred by the principle of

double jeopardy enunciated in Article I, Section 9, Florida

Constitution. That section provides, "No person shall be

deprived of life, liberty or property without due process of

law, or be twice put in jeopardy for the same offense, or be

compelled in any criminal matter to be a witness against

oneself."

41. Respondent argues that the underlying allegations in

AI - 02 - 082, which are the basis of his termination, are based on

the "exact same offense" t hat he was found guilty of in

AI - 01 - 009.

42. Respondent's contention that his proposed termination

from employment by Petitioner is prohibited by the double

jeopardy is rejected.

43. It is a well - established principle that double

jeopardy does not apply to administrative proceedings . See

Department of Professional Regulation v. Burnstein , Case No. 87 -

4793 (DOAH February 25, 1988)(Final Order entered on July 11,

1988), in which the hearing officer declined to apply double

jeopardy to an administrati ve proceeding, stating "[w]hile

'penal in nature,' administrative proceedings are not criminal

actions in which a principle such as double jeopardy would

attach."

44. Although double jeopardy does not apply in

administrative proceedings, clearly to discip line Respondent for

the same conduct, which was the underlying basis for previous

disciplinary action, would violate all notions of fundamental

fairness and due process. See School Board of Pinellas

County v. James E. Wilkins, Jr. , Case No. 85 - 2267 (DOAH

December 2, 1985) (Final Order entered March 12, 1986), in which

hearing officer stated that, "while double jeopardy is not

specifically applicable to administrative proceedings, the

principles on which Article V of the United States Constitution

and [Arti cle I] Section 9 of the Florida Constitution are based

clearly preclude one receiving an administrative punishment

twice for the same offense." Applying that principle to this

case, any conduct which was the underlying basis of AI - 01 - 009,

cannot be the ba sis for the disciplinary action which is at

issue in this proceeding.

45. Conduct in which Respondent engaged after that time

and for which Respondent had not previously been disciplined may

be the basis for disciplinary action being sought in this case.

However, conduct which occurred prior to June 19, 2001, and for

which Respondent has been disciplined may not be used to support

the alleged violations in this case.

46. The complaint in this case alleges that Respondent

violated four Sheriff's Office ru les.

47. First, it is alleged that Respondent violated

Sheriff's Office Rule 3 - 1.1, 5.6 (a Level Five violation)

related to truthfulness. That rule requires civil service

members be truthful at all times when acting in an official

capacity, whether under oath or not, such as when offering

testimony in legal proceedings and administrative

investigations. The Sheriff alleges that Respondent violated

this provision by being untruthful "to both supervision and the

Administrative Investigations Division (while under oath)

concerning his paramour relationship."

48. The alleged violation of Sheriff's Office Rule 3 - 1.1,

5.6 is not sustained. It is undisputed that Respondent made

untruthful statements to his supervisors and to the AID

concerning his relationship with Ms. Parker while he was under

oath. However, this conduct was the underlying basis for

violations in AI - 01 - 009, a matter that was resolved pursuant to

a negotiated settlement and for which Respondent was

disciplined.

49. Second, it is alleged that R espondent violated

Sheriff's Office Rule 3 - 1.1, 5.14 (a Level Five violation) by

knowingly making false entries in official records of the

Sheriff's Office. Such actions are deemed to be "conduct

unbecoming members of the agency." It is alleged that

Res pondent knowingly made false entries on official agency

records "by repeatedly submitting inter - office memorandums,

which he now admits contained both falsehoods and mistruths."

50. The violation of Rule 3 - 1.1, 5.14, is sustained. It

is undisputed that i n several memoranda deemed to be official

records and all written after June 19, 2001, Petitioner

repeatedly stated that he had been treated unfairly in the

previous proceeding and that he had not agreed to the negotiated

settlement in AI - 01 - 009. It is al so undisputed that in or about

December 2001, Respondent stated in one of these memoranda that

he "never had or considered having an affair with Mrs. Parker,"

although at that time he was, in fact, having an affair with

her. These statements were false an d known by Respondent to be

false at the time he made them. Moreover, this conduct was not

conduct for which Respondent had been previously disciplined.

Therefore, it is a proper basis to establish the violation of

Sheriff's Office Rule 3 - 1.1, 5.14.

51. Third, it is alleged that Respondent violated

Sheriff's Office Rule 3 - 2.1, 3.1 (a Level Three violation) which

requires that members conduct their private and professional

lives in such a manner as to not bring discredit to the

Sheriff's Office. It is al leged that Respondent violated this

rule "due to his paramour relationship and his attempt to

perpetrate falsehoods and mistruths concerning the

administrative process, he brought discredit to the Sheriff's

office." This violation is sustained.

52. It is undisputed that Respondent continued to have an

extra - marital affair with Ms. Parker, a civilian employee of the

Sheriff's Office, well after June 19, 2001, when AI - 01 - 009 was

resolved. Respondent's conduct in this regard brought discredit

to the Sheriff 's Office.

53. Finally, it is alleged that Respondent violated

Sheriff's Office Rule 3 - 1.1, 3.1, related to unauthorized use of

agency equipment by repeatedly using his agency - issued cellular

telephone for personal calls and failed to reimburse the agency

for those calls. This violation is sustained.

54. It is undisputed that after June 19, 2001, Respondent

used his agency - issued cellular telephone to make personal calls

to Ms. Parker and that he never reimbursed the Sheriff's Office

for these calls.

55. Based on the foregoing, Respondent is guilty of

violating Sheriff's Office Rule 3 - 1.1, 5.14, related to conduct

unbecoming members of the agency, a Level Five violation;

Sheriff's Office Rule 3 - 1.1, 3.1, related to standard of

conduct, a Level Three viol ation; and Sheriff's Office Rule

3 - 1.1, 3.1, related to unauthorized use of agency equipment, a

Level Three violation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that the Civil Service B oard of the Pinellas

County Sheriff's Office enter a final order finding Respondent

guilty of violating Sheriff's Office Rule 3 - 1.1, 5.14, related

to conduct unbecoming members of the agency; Sheriff's Office

Rule 3 - 1.1, 3.1, related to standard of conduct ; and Sheriff's

Office Rule 3 - 1.1, 3.1, related to unauthorized use of agency

equipment; and upholding Respondent's termination as a deputy

sheriff with the Pinellas County Sheriff's Office.

DONE AND ENTERED this 3rd day of September, 2003, in

Tallahassee, Leon County, Florida.

S

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 F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of September, 2003.

COPIES FURNISHED :

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Fl orida 33701

Keith C. Tischler, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317 - 2186

B. Norris Rickey, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 34616

Jean H. Kwall, General Counsel

Pinellas County Sheriff's Office

Post Office Drawer 2500

Largo, Florida 33779 - 2500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomm ended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.