03-000966 Keith George vs. Pinellas County Sheriff`s Office Status: Closed Recommended Order on Tuesday, July 22, 2003.

Summary: Respondent Sheriff Rice proved by a preponderance of the evidence that Petitioner engaged in sexual harassment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH GEORGE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 09 66

)

PINELLAS COUNTY SHERIFF'S OFFICE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hea ring was

held in this case on May 12 and 13, 2003, in Largo, Florida,

before William R. Pfeiffer, a duly - appointed Administrative Law

Judge within the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William M. Laubach, Esquire

Pinellas County Police

Benevolent Association

14450 46th Street North, Suite 115

Clearwater, Florida 33762

For Respondent: Keith C. Tischler, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Boulevard.

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner violated the

Pinellas County Sheriff's Office Ci vil Service Act and its rules

and regulations by engaging in sexual harassment, and, if so,

what is the appropriate discipline?

PRELIMINARY STATEMENT

On March 10, 2003, Sheriff Everett S. Rice (Respondent)

notified Detention Deputy, Keith George (Petitione r), that the

Administrative Review Board had determined that Petitioner had

violated the Pinellas County Sheriff Office Civil Service Act

and the rules and regulations of the Pinellas County Sheriff’s

Office. Respondent notified Petitioner that he was bei ng

suspended for fifteen days without pay and demoted from the rank

of lieutenant to the rank of sergeant.

Petitioner denied the charges, contested the imposed

penalty and requested a formal hearing. The matter was

forwarded to the Division of Administra tive Hearings and

assigned to an Administrative Law Judge to conduct a formal

hearing.

At the final hearing, Petitioner testified and introduced

three exhibits into evidence. Respondent called nine witnesses

and offered 16 exhibits, 14 of which were rec eived into

evidence. The parties also admitted one joint exhibit. The

transcript of the proceedings was filed on May 21, 2003. The

parties timely filed their respective Proposed Findings of Fact

and Conclusions of Law, which have been duly considered.

F INDINGS OF FACTS

1. Respondent is the Sheriff of Pinellas County and is a

constitutional officer for the State of Florida. He is

responsible for providing law enforcement and correctional

services within Pinellas County, Florida.

2. Petitioner is a 16 - y ear employee with the Pinellas

County Sheriff's Office and has never received a derogatory

employee evaluation. Between March 2002 and October 2002,

Petitioner worked as a detention deputy at the Pinellas County

Jail and held the rank of lieutenant.

3. On March 4, 2002, Ms. Lori Atwater commenced employment

with the Pinellas County Sheriff's Office and served as an

inmate - counselor within Petitioner's unit . Ms. Atwater and

Petitioner established a friendly professional relationship that

developed into inappropriate conduct. On October 30, 2002, Ms.

Atwater filed a written complaint against Petitioner alleging

that he sexually harassed her.

4. Ms. Atwater and Petitioner each testified before the

undersigned at the administrative hearing and provided

conflicting versions of the alleged actions. Ms. Atwater

presented more credible testimony. The evidence demonstrates by

a preponderance of the evidence that Petitioner, on multiple

occasions, exhibited inappropriate verbal and physical behavior

toward h is subordinate, Ms. Atwater. Specifically, Petitioner

periodically told her that he had difficulty avoiding watching

her walk across the room. In addition, Petitioner frequently

referred to Ms. Atwater, despite her objections, as "Ms.

Ashwood," a person Ms. Atwater believed to be of poor

reputation.

5. Moreover, o n one occasion, Petitioner instructed Ms.

Atwater to meet him for lunch and then, during the course of the

lunch, broached the possibility of an extramarital relationship

with her. On another occasion, Petitioner telephoned Ms.

Atwater, inquired about the type of underwear she was wearing

and questioned her about private sexual matters.

6. Although Ms. Atwater did not file any formal complaint

against Petitioner for the improper verbal comme nts, she did

advise Ms. Jacqueline Hobbs, a nine - year veteran with the

Pinellas County Sheriff's Office, that she was experiencing

inappropriate verbal contact from an un - named employee. Ms.

Atwater was aware of the complaint procedures but explains that

she was a new employee in the unit, was on probationary status

during the relevant time period and did not want to complain

about Petitioner and potentially jeopardize her employment.

7. In addition to Petitioner's improper verbal comments

toward Ms. At water, the evidence demonstrates by a preponderance

of the evidence that Petitioner made unsolicited, inappropriate

physical contact with her. On one occasion in May 2002,

following a meeting to discuss her job performance, Petitioner

insisted on hugging Ms. Atwater and inappropriately continued to

hug her even after she resisted and ceased the embrace.

8. On another, yet more egregious occasion on October 24,

2002, Petitioner entered Ms. Atwater’s office under the guise of

discussing work - related matte r and touched her inappropriately.

Specifically, Petitioner entered Ms. Atwater's office, closed

her door, approached her from behind, placed his hands around

her neck and began kissing her neck and rubbing his groin area

against her buttocks. Ms. Atwate r turned around, physically

resisted him, and told him that she had to handle an emergency

outside of her office.

9. Notwithstanding her resistance, Petitioner backed her

against the wall, again placed his arms around her and attempted

to kiss her mouth . Again, Ms. Atwater immediately resisted.

She ducked under his arms and fled her office.

10. Six days later, on October 30, 2002, Ms. Atwater

notified Petitioner's superiors of the incident and filed a

3 - page formal written complaint outlining his b ehavior. Shortly

thereafter, Major Kirk Bruner referred the complaint to the

Administrative Inspections Division for investigation.

11. Petitioner denies Ms. Atwater's allegations that he

had inappropriate verbal and physical contact with her and

argue s that they maintained a friendly professional

relationship. He further states that Ms. Atwater continually

requested him to get involved with EXCEL telecommunications and

was upset that he refused. He also contends that Ms. Atwater

became too personal w ith him and sent him inappropriate e - mails.

12. Considering the evidence, Petitioner's contentions are

less credible. Although it is clear that Ms. Atwater sent

Petitioner an e - mail on October 23, 2002, stating, "You have a

way of getting a message acros s. Thank you so much," there is

no evidence that Ms. Atwater was overly friendly, encouraged his

behavior, or engaged in any inappropriate conduct.

13. Following the Division's investigation and report, the

Administrative Review Board, comprised of var ious employees with

the Pinellas County Sheriff's Office, reviewed the evidence

compiled by the investigators. The Board unanimously determined

that Petitioner had violated the Pinellas County Sheriff’s

Office Civil Service Act, Laws of Florida, 89 - 404, a s amended by

Laws of Florida, 90 - 395, as well as Rule 5.16 of the Rules and

Regulations of the Pinellas County Sheriff’s Office relating to

sexual harassment and discrimination as defined in General Order

3 - 4. The Administrative Review Board forwarded its findings to

Respondent.

14. Petitioner's available range of discipline was

calculated in conformance with the matrix contained within

General Order 10 - 2 of the Pinellas County Sheriff's Office which

allocates a point scale to various violations. The mat rix

provides that a Level Five offense, which includes sexual

harassment, results in a 50 - point assessment. Since Petitioner

had no previous disciplinary record, Petitioner scored a total

of 50 cumulative points which includes a disciplinary range of a

fi ve - day suspension up to and including termination. Demotion

is also authorized under the applicable General Order.

15. After considering the evidence and available

sanctions, Respondent notified Petitioner on March 10, 2003,

that he was imposing a fift een - day suspension, demoting him from

the rank of lieutenant to the rank of sergeant and requiring him

to undergo sexual harassment remedial training.

16. Following the investigation and imposition of

discipline , Petitioner commented to his superior, Cap tain Peter

Nesbitt, that "I was wrong. I spoke to my wife and am

forgiven."

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to Sections 120.57(1) and 120.68( 8), Florida

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

amended by Chapters 90 - 395, Section 8, Laws of Florida.

18. The burden of proof 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). Respondent must prove the allegations

in its complaint.

19. The parties disagree about the applicable standard of

proof in this case. While Petitioner argues that Respondent

must prove its case by a preponderance of the evidence and

Respondent contends that it must prove its case by competent and

substantial evidence, neither Chapters 89 - 404 and 90 - 395, Laws

of Florida nor any of Respondent's office rules, regulations or

poli cies expressly identify the applicable standard of proof

necessary to find a violation.

20. Although Section 8 of Chapter 90 - 395, Florida

Statutes, specifically authorizes Respondent "to contract with

the Division of Administrative Hearings to have hear ings

pursuant to Chapter 120, Florida Statutes," it is apparent that

the Legislature did not intend to require the Administrative Law

Judge to apply Section 120.57(1)(j), Florida Statutes, which

specifically provides that "Findings of fact shall be based u pon

a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute, and shall be based exclusively on the evidence of

record and on matters officially recognized."

21. While Respondent 's proposed discipline is penal in

nature, Section 8 of Chapter 90 - 395, Florida Statutes, merely

authorizes Respondent to contract with the Division for hearing

services. It does not require the Administrative Law Judge to

base the ultimate findings of fa ct upon a standard of proof

greater than a preponderance of the evidence.

22. To the contrary, it is evident that the preponderance

of evidence standard has been consistently applied in cases

involving the termination of employment. See Dalem v.

Departm ent of Corrections , 720 So. 2d 575 (Fla. 4th DCA 1998).

In addition, the District Court of Appeal, First District, held

that the imposition of discipline upon a career service employee

requires proof by a preponderance of the evidence. Latham v.

Florida Commission on Ethics , 694 So. 2d 83, (Fla. 1st DCA

1997); Department of Agriculture and Consumer Services v.

Edwards , 654 So. 2d 628 (Fla. 1st DCA 1995); Fitzpatrick v. City

of Miami Beach , 328 So. 2d 578 (Fla. 3d DCA 1976).

23. Petitioner further argue s that the clear and

convincing evidence standard is appropriate, given the rationale

expressed within In re Rudy Maloy , DOAH Case No. 02 - 1231EC.

However, his argument provides little assistance since that case

involved an alleged violation by a public of ficial of the

Florida Ethics Code pursuant to Section 112.317(1)(a), Florida

Statutes.

24. This case solely involves Respondent sheriff seeking

to discipline Petitioner, his employee, for verbal and physical

sexual harassment. And while Petitioner is not directly within

the state of Florida's Career Service system, he is similarly

situated within the protected Classified Service system of the

Pinellas County Sheriff's Office and has attained permanent

status as an employee. See Chapter 89 - 404, Laws of Florida.

25. The appropriate standard of proof required is a

preponderance of the evidence. In order to prevail, Respondent

must prove the allegations within the complaint against

Petitioner by a preponderance of the evidence.

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

the Sheriff to suspend, dismiss or demote classified employees

for certain offenses. It provides in pertinent part the

following:

(4) Cause for suspension, dismissal or

demotion shall include, but shall not be

limi ted 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 t he Sheriff, conduct unbecoming to

a public servant, misconduct, or proof

and/or admitted 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 r ule, may add to this list of

causes for suspension, dismissal or

demotion.

27. In addition, Chapter 89 - 404, Section 2, Laws of

Florida, authorizes Respondent to adopt rules, regulations and

policies which establish the standard of conduct for employees

of the Pinellas County Sheriff’s Office.

28. Respondent has adopted Pinellas County Sheriff's

Office General Order 3 - 4 which defines and prohibits sexual

harassment. Pursuant to General Order 3 - 4, sexual harassment is

defined as:

1. All unwelcome or unwanted advances;

including sexual advances or unwanted sexual

attention, whether between person(s) of the

opposite or same sex. This includes, but is

no limited to, leering, touching, patting,

brushing against, hugging, kissing,

fondling, any other simi lar physical

contact, or quid pro quo arrangements (i.e.,

a situation in which an employee is forced

to engage in unwelcomed sexual conduct in

order to protect or advance his/her job.)

2. Unwelcome requests or demands for

favors, including sexual favors. This

consists of subtle or blatant expectations,

pressures, or request for any type of favor,

including sexual favor, including unwelcome

requests for dates, whether or not the

request is accompanied by an implied or

stated promise of preferential treatm ent or

negative consequences.

3. Inappropriate third party comments

or one time comments made which do not a

constitute hostile work environment,

language not directed at the offended

member, jokes (spoken, printed or drawn)

that are not directed at the offended member

or joint banter of a sexual or offensive

nature in which the offended member may or

may not be a party.

29. Respondent's complaint alleges that Petitioner

violated the Pinellas County Sheriff’s Office Civil Service Act

and its rules, reg ulations and operating procedures by engaging

in sexual harassment of Lori Atwater. Respondent proved by a

preponderance of the evidence that Petitioner repeatedly engaged

in inappropriate and unsolicited verbal comments and physical

contact toward Ms. At water. Respondent met its burden and

proved by a preponderance of the evidence that Petitioner’s

conduct violated the rules, regulations and operating procedures

of the Office of the Sheriff.

30. As noted above, the Pinellas County Sheriff's Office

Gene ral Order 3 - 1, divides employee violations of its standards

of conduct into five categories ranging from Level One to Level

Five. According to Section 3 - 1.1(5.16) of the Order,

Petitioner's sexual harassment conduct is designated a Level 5

violation.

31 . Pursuant to Pinellas County Sheriff's Office General

Order 10 - 2, a violation of any level of conduct will result in

the assignment of specific disciplinary points commensurate with

the violation. A violation of the sexual harassment policy

equates to f ifty prescribed points with a minimum disciplinary

range of five days suspension and a maximum range of

termination.

32. Considering the evidence, Respondent established that

Petitioner's fifteen - day suspension and demotion is reasonable

and within the prescribed disciplinary range.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Civil Service Board of the Pinellas

County Sheriff’s Office enter a Final Order finding that:

1. Petit ioner committed the conduct alleged in the

charging document and violated the rules, regulations, and

policies of the Pinellas County Sheriff's Office.

2. Petitioner's 15 days' suspension from his employment as

a detention deputy with the Pinellas Cou nty Sheriff's Office is

appropriate.

3. Petitioner's demotion from his previous rank of

lieutenant to the rank of sergeant is appropriate.

4. Petitioner's requirement of remedial training related

to sexual harassment is appropriate.

DONE AND ENTERED t his 22nd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July, 2003.

COPIES FURNISHED:

B. Norris Rickey, Esquire

Assistant County Attorney

315 Court Street

Clearwater, Florida 337 56

Keith C. Tischler, Esquire

Allen, Norton & Blue, P.A.

1669 Mahan Center Blvd.

Tallahassee, Florida 32308

William M. Laubach, Esquire

Pinellas County Police Benevolent Association

14450 46th Street, North, Suite 115

Clearwater, Florida 33762

Jean H. Kwall, Esquire

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.