03-003141 Richard Reed vs. Pinellas County Sheriff`s Office Status: Closed Recommended Order on Friday, January 2, 2004.

Summary: Insubordination and failure to perform responsibilities are sufficient causes to warrant termination of deputy from the sheriff`s department.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD REED, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3141

)

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 5 and 6, 2003, a formal administrative hearing

in this case was held in Largo, Florida, before William F.

Quattlebaum, Administrative Law Judge, 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

Post Office Box 12186

Tallahassee, Florida 32317 - 2186

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner violated

the Civil Service Act and the rules and regulations of the

Pine llas County Sheriff's Office by allegedly failing to perform

assigned duties and other responsibilities and by

insubordination towards a superior officer.

PRELIMINARY STATEMENT

By Notification of Sustained Complaint and Interoffice

Memorandum dated Augus t 22, 2003, the Petitioner was informed

that an Administrative Review Board had determined that the

Petitioner had violated the Civil Service Act and certain rules

and regulations of the Pinellas County Sheriff's Office. The

memorandum stated that, based on the violations, the

Petitioner's employment was being terminated. The Petitioner

challenged the termination and requested a formal hearing. The

Respondent forwarded the request to the Division of

Administrative Hearings, which scheduled and conducted the

proceeding.

During the hearing, the Petitioner testified on his own

behalf, presented the testimony of three additional witnesses,

and had Exhibits numbered 1 through 9 admitted into evidence.

The Respondent presented the testimony of seven witnesse s and

had Exhibits numbered 1 through 3, 6 through 12, 28, 29

(Parts A, C, D, and E), and 30 through 42 admitted into

evidence. The Transcript of the hearing was filed on

November 13, 2003. The Respondent filed a Proposed Recommended

Order on December 19 , 2003, and the Petitioner filed a Proposed

Recommended Order on December 22, 2003.

FINDINGS OF FACT

1. From August 1999 to August 21, 2003, Pinellas County

Sheriff Everett S. Rice (Respondent) employed Richard Reed

(Petitioner) as a detention deputy a t the Pinellas County Jail.

The Petitioner was a member of the Special Operations Division

at the jail.

2. The usual practice at the jail was for deputies to

receive their daily work assignments at a morning "read off,"

where information was read to emp loyees by superior officers.

3. At the May 30, 2003, read off, the Petitioner was

assigned to the male "Marchman" unit. The Marchman unit is the

section of the jail where persons under the influence of alcohol

or other substances are held in protective custody until the

influence has subsided. There are separate Marchman unit

sections for males and females.

4. Because of the nature of the persons held in the

Marchman unit and the potential for self - injury, the Marchman

unit is considered a high liabil ity area. Deputies assigned to

Marchman duty are expected to report to and inspect the unit

immediately following the read off, account for all persons

being held in the unit, account for the unit's keys and

equipment, and relieve the person assigned to the unit during

the previous shift.

5. When there are persons present in the Marchman unit,

the assigned deputy remains in the unit. When the Marchman unit

is unoccupied, the deputy is re - assigned to other duty,

generally to assist in the processing a rea of the jail. On

May 30, 2003, there were no male detainees in the Marchman unit.

6. Whether or not there are detainees in the unit, the

inspection must be conducted and then logged into a book

maintained at the unit. The assigned deputy is also resp onsible

for having the Marchman unit cleaned during the deputy's shift.

7. On May 30, 2003, the Petitioner failed to go to the

Marchman unit. He did not inspect the unit. He made no

notations in the logbook. He failed to have the unit cleaned.

8. Th e Petitioner testified that he completed the

inspection, and because there were no detainees present, he went

to the processing area and merely forgot to note his inspection

in the logbook. The Petitioner's testimony lacked credibility.

9. In addition to failing to perform his Marchman unit

responsibilities, the Petitioner misinformed a superior officer

about the status of the unit. At some point during the day on

May 30, 2003, Corporal John A. Squillante asked the Petitioner

about the status of the Ma rchman unit, and the Petitioner told

Corporal Squillante that it had been "taken care of."

10. Because May 30, 2003, was a busy day at the jail, the

processing area was very active and there were persons waiting

to be processed and admitted into the dete ntion facility.

Sergeant Loren Jones sought the assistance of additional nursing

staff to perform routine examinations on the waiting detainees

so that a backlog of persons awaiting admission to the facility

could be cleared. Nurse Black responded to the sergeant's

request.

11. Upon arrival at the processing area, Nurse Black asked

for a chair to sit on while she worked. Sergeant Loren

Jones, III, entered his own office and found the Petitioner

sitting there. It was not unusual for detention officers to use

the sergeant's office while on break or at lunchtime. Sergeant

Jones requested the Petitioner to get a chair for Nurse Black.

The Petitioner replied to Sergeant Jones, "Fuck you, I'm not

doing it." Sergeant Jones repeated the request and the

Resp ondent then complied.

12. Later in the day, the Petitioner, after becoming aware

that Sergeant Jones had reacted negatively to the remark,

attempted to explain to Sergeant Jones that the remark was made

in jest. Sergeant Jones was busy and refused to talk to the

Petitioner about the incident.

13. The evidence fails to establish that Sergeant Jones

had any reason to believe at the time the Petitioner made the

remark that the Petitioner was joking. The statement was not

made in a joking manner, and the Peti tioner did not have the

kind of relationship with Sergeant Jones that would have

permitted such a response.

14. Towards the end of the shift on May 30, 2003, the

female Marchman unit logbook was determined to be missing. An

attempt to locate the missing book was initiated, and both the

Petitioner and Deputy Jasmina Buric, the detention deputy who

had been assigned to the female Marchman unit duty at the

morning read off, were called on their radios to assist in the

search.

15. Deputy Buric responded to the radio call. The

Petitioner did not respond to the radio call. On her way to

assist in the search, Deputy Buric saw the Petitioner and told

him that they had been directed to assist in the search. The

Petitioner replied to Deputy Buric, "Fuck that, I'm going home."

16. The Petitioner did not return to assist in the search

for the female Marchman unit logbook.

17. The Petitioner asserts that he did not respond to the

radio call because he did not hear it. He testified that his

radio battery was dis charged. The evidence establishes that

there were additional batteries available to the Petitioner and

that it is the Petitioner's responsibility to assure that his

equipment is operational. In any event, the Petitioner was

aware of the radio call beca use Deputy Buric informed him of it.

18. When the female Marchman unit logbook was located, the

male Marchman unit logbook was examined at which time the

Petitioner's failure to make an entry in the logbook was

discovered. Upon further investigation, th e Respondent became

aware that the Petitioner had not performed an inspection of the

Marchman unit earlier in the day.

19. Based on the events of May 30, 2003, a complaint was

made against the Petitioner by his supervisor, and an

investigation resulted. Following the investigation, the

Administrative Review Board determined that the Petitioner had

violated the Respondent's rules and regulations and that the

Petitioner's employment should be terminated.

CONCLUSIONS OF LAW

20. The Division of Administrati ve Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2003).

21. The Respondent has the burden to establish by a

preponderance of the evidence that the proposed discipline

against the Petitioner is warranted by the facts of the case and

the applicable rules and regulations of the Pinellas County

Sheriff's office. Department of Transportation v. J. W. C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). The

Respondent has met the burden.

22. The Civil Service Act of the Pinellas County Sheriff's

Office was established pursuant to Chapter 89 - 404, Laws of

Florida, as amended by Chapter 90 - 395, Laws of Florida.

23. Chapter 89 - 404, Section 6, Laws of Florida, provides

disciplinary authority to the Respondent as follows:

(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, insubordina tion, 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 fo r 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.

24. Chapter 89 - 404, Section 2, Laws of Florida, provides

authorit y to the Respondent to adopt rules necessary to

administer the Civil Service Act. The Respondent has adopted

General Order 3 - 1, which sets forth the standard of conduct to

be followed by employees of the Pinellas County Sheriff's

Office. General Order 3 - 1 sets forth "levels" of violations

that reflect the severity of different infractions of the

regulations.

25. Section 3 - 1.1 sets forth "Level Five Violations."

Section 3 - 1.1, Subsection 5.4, provides as follows:

5.4. Duties and Responsibilities - The

primary responsibility of all Sheriff's

Office personnel is to be aware of their

assigned duties and responsibilities.

Certified personnel are always subject to

duty and are responsible for taking prompt

and effective action within the scope of

their duti es and abilities whenever

required.

26. The evidence establishes that the Petitioner's conduct

constitutes a violation of Section 3 - 1.1, Subsection 5.4, in

that the Petitioner failed to perform his duties related to the

Marchman unit on May 30, 2003.

27. Section 3 - 1.1, Subsection 5.17 provides as follows:

5.17. Insubordination -

a. Refusal to obey a lawful order.

b. Use of profanity or insulting language

towards a superior officer.

c. Failure or deliberate refusal to obey a

lawful order relayed from a supervisor by a

member of the same or lesser rank.

28. The evidence establishes that the Petitioner's conduct

constitutes a violation of Section 3 - 1.1, Subsection 5.17, in

that the Petitioner was insubordinate to Sergeant Jones on

May 30, 2003.

2 9. Section 3 - 1.3 sets forth "Level Three Violations."

Section 3 - 1.3, Subsection 3.4, provides as follows:

3.4. Performance of Duty - All personnel

shall take appropriate action to preserve

the peace and perform their duties as

required or directed by law , agency rules,

policies and procedures, or other lawful

orders of a supervisor.

* * *

d. All members will be efficient and

effective in their assigned duties,

performing them in a competent, proficient,

and capable manner.

30. The evidence establi shes that the Petitioner's conduct

constitutes a violation of Section 3 - 1.3, Subsection 3.4.d.,

when on May 30, 2003, he was made aware of the request that he

assist in the search for the female Marchman unit logbook and

did not assist in the search.

31. The Respondent has adopted General Order 10 - 2, which

establishes a process for calculation and assessment of

disciplinary points against an employee who has violated the

regulations of the agency. General Order 10 - 2 sets forth a

matrix which, based on nu mbers of allegations and points

assessed, identifies the type of discipline appropriate in this

case. According to the matrix, the Petitioner's conduct results

in a total of 75 disciplinary points and warrants discipline

ranging from a ten - day suspension to termination of employment.

32. General Order 10 - 2.6 provides that points from

previous discipline may be carried over and added to subsequent

disciplinary calculations. The Petitioner had a total of ten

previous disciplinary "carry - over" points resul ting in a

cumulative total of 85 points; however, the matrix does set

forth a penalty for 85 points, and the lower total of 75 points

was utilized by the Administrative Review Board in imposing the

penalty of termination in this case.

33. The Petitioner a sserts that the penalty assessed

against him is excessive based upon the discipline imposed

against other members of the Sheriff's Office for various

infractions. Disciplinary records related to other deputies

were admitted into evidence in this case. Re view of those

records fails to establish that the violations of regulations

for which other employees were disciplined occurred within the

course of a single workday. In this case and on a single day,

the Petitioner failed to perform assigned Marchman uni t duties,

was directly insubordinate to a superior officer, and refused to

return to assist in locating a Marchman unit logbook. The

evidence establishes that the penalty assessed in this case is

within the permitted range of the disciplinary matrix set f orth

in the Respondent's rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Civil Service Board of Pinellas County

Sheriff's Office enter a final order finding Richard Reed guilty

of violatin g the rules and regulations of the Pinellas County

Sheriff's Office as set forth herein and terminating his

employment as a deputy with the Pinellas County Sheriff's Office.

DONE AND ENTERED this 2nd day of January, 2004, in

Tallahassee, Leon County, Flori da.

S

WILLIAM F. QUATTLEBAUM

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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of January, 2004.

COPIES FURNISHED :

William M. Laubach, Esquire

Pinellas County Police

Benevolent Association

14450 46th Street, North, Suite 115

C learwater, Florida 33762

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, Fl orida 33756

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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.