05-001509 Sheila Christian vs. Pinellas County Sheriff Status: Closed Recommended Order on Thursday, November 10, 2005.

Summary: Petitioner violated the rules of Respondent in relation to duties and responsibilities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA CHRISTIAN, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1509

)

PINELLAS COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on July 7 and 8, 2005, in Largo, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: James A. Sheehan, Esquire

341 Third Street, South

St. Petersburg, Florida 33701

For Respondent: Keith C. Tischler, Esquire

Jolly & Peterson, P.A.

2145 Delta Boulevard, Suite 200

Post Off ice Box 37400

Tallahassee, Florida 323 15

STATEMENT OF THE ISSUES

Whether there was cause to suspend Petitioner for ten days

and place Petitioner on probation for 12 months for alleged

violations of the provisions of law, rules, regu lations, and

operating procedures of the Office of the Pinellas County

Sheriff.

PRELIMINARY STATEMENT

By memorandum dated April 15, 2005, Petitioner, Detention

Sergeant She il a Christian (Christian), was notified by

Respondent, Pinellas County Sheriff, that it had been determined

by the Administrative Review Board that she had violated

"Pinellas County Sheriff's Office General Order 3 - 1.1, Rule and

Regulation 5.4 - Duties and Responsibilities," involving the

relocation of an inmate, Larry Germonprez, on March 11, 2003.

Christian filed an appeal with the Civil Service Review Board,

and the case was forwarded to the Division of Administrative

Hearings for assignment of an administrative law judge to

conduct the final hearing.

The final hearing was schedule d for June 9 and 10, 2005,

but was continued at the request of Respondent and rescheduled

for July 7 and 8, 2005.

The parties filed a Pre - Hearing Stipulation and admitted to

certain facts contained in Section C of the Pre - Hearing

Stipulation. Those facts are incorporated into this Recommended

Order.

At the final hearing, Christian testified in her own behalf

and called Mark A. Fletcher as her witness. Petitioner

submitted Petitioner's Exhibits 1, 2, 3, and 7, which were

admitted in evidence. Petitioner's Exhibits 4, 5, and 6 were

proffered.

At the final hearing Respondent called the following

witnesses: Shelia Christian, William M. Johnson, Walter O.

Kelly, Paul L. Papasergi, Adrian Nenu, Will Williams, Kirk P.

Brunner, Dennis E. Fowler, and Timothy A. S laughter.

Respondent's Exhibits 6, 9, 10, 12, 18 through 20, 29, 32, 37

through 39, 41 through 43, 45, and 4 7 through 49 were admitted

in evidence.

The three - volume Transcript was filed on July 13, 2005, and

the parties timely filed their proposed recomme nded orders,

which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Respondent is a constitutional officer for the State of

Florida, responsible for providing law enforcement and

correctional services within Pinellas County, F lorida.

2. At all times material to this case, Christian was

employed by Respondent as a detention deputy, holding the rank

of sergeant. Christian i s responsible for directing and

instruct ing other detention deputies in the confinement, care,

custody, and restraint, when necessary, of inmates. She has

some latitude in carrying out these duties.

3. Larry Germonprez (Germonprez) was admitted to the

Pinellas County jail in March 2003. After he was initially

admitted to the jail, he began to exhibit odd behavior,

including undressing himself and walking around his cell

unclothed. As a result of his odd behavior, Germonprez was

transferred from the C Wing of the jail to the Bravo Wing, which

provides for closer observation of inmates in need of

observatio n for medical reasons , including mental health

problems.

4. Christian participated in Germonprez's transfer to the

Bravo Wing. She observed that his conversation was not making

any sense.

5. Germonprez was placed in Isolation Cell 3, in the Bravo

Wing. Subsequently, Germonprez began to kick the door to

Isolation Cell 3 and babble in an unintelligible manner.

Medical staff requested that Germonprez be transferred to an

observation cell in South - 6 because they believed that

Germonprez's behavior was due in part to claustrophobia. The

door in Isolation Cell 3 was a solid metal door with a small

window for observation and a slot for food service on the lower

portion. The door on the South - 6 c ell consisted of metal bars,

making the cell appear larger and l ess confining. Additionally,

South - 6 had cameras, which could be used to monitor the inmates

on a 24 - hour basis.

6. On March 11, 2003, as part of her responsibilities as a

sergeant, Christian supervised the relocation of Germonprez from

Isolation Cell 3 to South - 6. Detention Deputies Walter Kelly

(Kelly) and Paul Papasergi (Papasergi) were assigned to make the

transfer.

7. When Christian, Kelly, and Papasergi arrived at

Isolation Cell 3, Christian advised Germonprez that he was going

to be relocated to another cell and ordered him to place his

hands against the wall. Germonprez did not verbally respond to

Christian, but obeyed her order by plac ing his hands on the cell

wall.

8. Kelly and Pap a sergi proceeded to enter the cell after

Germonprez placed his hands on the wall. When they opened the

door, Germonprez turned and charged at the detention deputies.

A struggle ensued, and the detention deputies wrestled

Germonprez to the ground. The deputies encountered continued

resistance and struggled to gain control of the situation.

9. Christian was present during the time the detention

deputies were using force to restrain Germonprez and was the

officer in charge of the scene. Christian did not give the

detention deputies wrestling with Germonprez any inst ructions to

use pain compliance techniques, such as pressure points or knee

strikes. She did not use her radio to call her superior,

Lieutenant Will Williams (Williams) or to call for the response

team . The response team consists of eight to 12 detention

deputies, who are assigned to respond to incidents throughout

the jail. Once members of the response team receive a request

for assistance, they immediately proceed to the scene to assist.

10. Germonprez continued to struggle with the detention

deputies , who were at this point attempting to handcuff

Germonprez behind his back. After Christian and the detention

deputies realized handcuffing Germonprez behind his back at that

time was not possible, Christian instructed the detention

deputies to handcuff G ermonprez with his hands in front of his

body. Frontal handcuffing provides less control of the inmate,

limits the detention deputies in options available to exercise

control, and provides the inmate a weapon and the opportunity to

swing his arms, to enga ge in choking maneuvers, or to grab

someone or something.

11. General Order 14 - 1.3 of the Pinellas County Sheriff's

Office provides that when a prisoner is violent or gives an

indication of belligerence or when a prisoner may cause injury

to himself or o thers that handcuffs shall be used in accordance

with maximum safety procedures, which includes the following

procedure:

Persons in custody shall be handcuffed with

hands behind the back, palms outward, prior

to searching. With keyholes facing

outwards, t he single strands of the

handcuffs should be placed against the

prisoner's wrist, below the wrist bone, and

pressed forward until snug - fitting, yet not

tight enough to c a use physical discomfort or

harm.

Exception: The safety of deputies, the

public and t he prisoners shall be considered

in following the procedure. An arrestee who

resists or is likely to resist arrest should

be handcuffed as quickly as possible without

regard to the prescribed procedure. If

sufficient back - up units are available and

the p risoner can be safely controlled, the

handcuffs should be re - applied in accordance

with the prescribed procedure.

12. The policies of the Pinellas County Sheriff's Office

required Christian to contact her supervisor after a use of

force had been institut ed and to have the medical staff assess

an inmate against whom a use of force had been initiated.

Christian did neither after the detention deputies ' use of force

against Germonprez in Isolation Cell 3 and prior to transporting

him to South - 6.

13. After the detention deputies handcuffed Germonprez, he

calmed down and no longer struggled. Christian decided it was

safe to transfer Germonprez to South - 6 and instructed the

detention deputies to continue the transfer while Germonprez was

still handcuffed with his hands in front of his body. Christian

did not instruct the detention deputies to re - adjust the

handcuffs so that Germonprez would be handcuffed with his hands

behind his back.

14. Christian called the only other detention deputy

assigned to Bravo Wi ng, William Johnson (Johnson), to come and

assist in the transfer of Germonprez to South - 6. Christian's

request of assistance from Johnson left the other inmates in the

Bravo Wing unsupervised.

15. The four detention deputies, Kelly, Papasergi,

Johnson, and Christian proceeded to escort Germonprez down the

hall to South - 6, which was a short distance away from Isolation

Cell 3. Johnson and Papasergi were on each side of Germonprez,

holding Germonprez's arms at the elbows. Christian and

Papasergi were a f ew feet behind Germonprez and the other

detention deputies.

1 6 . During the course of the transfer to South - 6,

Germonprez pulled away from Kelly and Johnson and grabbed the

control box with his hands. The control box is a device which

allows detention dep uties to open and close the cell doors

remotely. Most likely, Germonprez would not have been able to

pull away from the Kelly and Johnson if Germonprez had been

handcuffed with his hands behind his body. Using minimal force,

Kelly and Johnson released Ge rmonprez's grip on the control box

and continued down the hall to South - 6.

1 7 . Upon arriving at South - 6, Kelly and Johnson entered

the cell with Germonprez with the intention of removing the

handcuffs and leaving Germonprez in the cell. Papasergi was

st ationed at the control box and was awaiting authorization to

close the cell door. Christian was outside the cell door.

1 8 . Once in South - 6, Germonprez resisted the detention

deputies ' efforts to remove the handcuffs. Kelly and Johnson

forced Germonprez face down on the cell bunk, but Germonprez

continued to struggle. Christian called for Papasergi to go

into the cell to help the others restrain Germonprez. Christian

also called the lieutenant in charge, Williams, and advised him

of the situation.

1 9 . When Williams arrived at the scene, Kelly, Johnson,

and Papasergi were holding the st r uggling Germonprez down on the

bunk. Williams called the response team and also requested the

restraint chair.

20 . A restraint chair is used to control a violent inm ate.

The chair has grooves in the back so that an inmate can put his

arms in the grooves after being handcuffed from behind.

Additionally, the inmate would be strapped across the chest,

waist, and feet. Prior to the use of a restraint chair, an

inmate m ust be checked by medical staff, and the placement of

the inmate in the restraint chair is required to be video taped.

2 1 . After Williams arrived on the scene, the detention

deputies were able to put leg shackles on Germonprez and

reposition the handcuffs with Germonprez's hands behind his

back. By this time, Germonprez's resistance had lessened.

2 2 . Because force had been used to restrain Germonprez,

the jail's medical staff was called to check Germonprez prior to

putting him in the restraint chair. Th e nurse arrived and found

that Germonprez was not conscious and called a Code 99.

Christian told the detention deputies to leave the cell. The

medical staff attempted to revive Germonprez, but were

unsuccessful, and he died.

2 3 . The autopsy of Germonpre z revealed that he died as a

result of blunt force trauma to the chest, resulting in

asphyxiation. Germonprez had several injuries, including 17 rib

fractures, bruising, cuts, and an injury to the head. Some, but

not all the rib fractures, might have bee n sustained as a result

of the use of CPR or other life saving measures. At no time

prior to entering the South - 6 cell did Germonprez present to

Christian or the other detention deputies any indication that he

was injured.

2 4 . When a death of an inmate o ccurs at the jail, a

special investigation into the incident is conducted by the

Administrative Inspections Division. Sergeant Mark Fletcher

(Fletcher) conducted a special investigation of the death of

Germonprez. Fletcher was charged with the responsibi lity to

review the incident, determine what happened, and to determine

if the policies in place at the time of the incident were

effective. As part of the investigation, in August 2003,

Fletcher interviewed Christian and the other detention deputies

invol ved in the incident. Because the investigation was not a

disciplinary investigation, Fletcher did not advise Christian

that she had a right to be represented by counsel.

2 5 . On February 16, 2005, Christian was notified that she

would be the subject of a disciplinary investigation conducted

by the Inspections Bureau, Administrative Inspections Division

relating to the incident involving the death of Germonprez.

Pursuant to the disciplinary investigation, Fletcher took a

sworn statement from Christian and advised her of her right to

counsel prior to the taking of the statement.

2 6 . The Administrative Review Board subsequently reviewed

the allegations and evidence compiled by the Inspections Bureau,

Administrative Inspections Division and determined Christ ian had

violated the Pinellas County Civil Service Act and the rules,

regulations, and operating procedures of the Office of the

Sheriff for Pinellas County. Specifically, the alleged

violations and the conduct upon which those violations were

based were:

a. 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: violations of the

provisions of law or the rules, regulations, and operating

procedures of the o ffice of the Sheriff;

b. Violation of General Order of the Pinellas County

Sheriff's Office, 3 - 1.1, Rule and Regulation 5.4 (Level Five

violation), relating to duties and responsibilities.

2 7 . By memorandum to Christian dated April 15, 2005,

Respondent a dvised her that the determination of the violations

w as based on the following:

On March 11, 2003, you were charged with

supervising the relocation of Inmate Larry

Germonprez from Isolation cell 3 to South 6

on B - Wing in the Pinellas County Jail.

Prior to attempting the relocation of Inmate

Germonprez, you did not effectively address

visible factors that you knew or should have

known, could adversely effect the attempted

relocation of Inmate Germonprez. You

declined to notify the Shift Commander of

the po tential adverse situation and take

proper precautions prior to attempting to

relocate Inmate Germonprez from isolation

cell 3 to South 6.

When Inmate Germonprez attempted to

physically defeat staff's efforts at

relocating him, you again failed to notify

th e Shift Commander and take proper

precautions prior to continuing the

relocation of Inmate Germonprez.

Staff under you r direction, failed to

establish and maintain the necessary

physical control of Inmate Germonprez

required for his successful relocation. The

attempted relocation ended in the death of

Inmate Germonprez who was under your care,

custody, and control.

2 8 . As a result of the recommendation of the

Administrative Review Board, disciplinary action in the form of

a ten - day suspension and probati on for 12 months was imposed

upon Christian by Respondent.

CONCLUSIONS OF LAW

2 9 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Chapter 89 - 404, Section 8, Laws of

Florida , as amended by Chapter 90 - 395, Section 8, Laws of

Florida.

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

Respondent to suspend, dismiss , or demote classified employees

for cause and provides:

Cause for suspension, dismissal, or demotion

shal l include, but not be limited to:

negligence, inefficiency, or inadequate job

performance; inability to perform assigned

duties, incompetence, dishonesty,

insubordination, violation of the provisions

of the law or rules, regulations, and

operating procedur es of the Office of the

Sheriff, conduct unbecoming a public

servant, misconduct, or proof and/or

admission of use of illegal drugs.

3 1 . Chapter 89 - 404, Section 2, Laws of Florida, authorizes

Respondent to adopt rules and regulations as are necessary to

implement and administer this section. Pursuant to this

authority, Respondent has adopted rules, regulations , and

policies which establish the standard of conduct which must be

followed by all employees of the Pinellas County Sheriff's

Office. Among the general orders and rules and regulations

adopted by Respondent is General Order 3 - 1. Respondent has

alleged that Christian violated General Order 3 - 1.1, Rule and

Regulation 5.4, which provides:

Duties and Responsibilities - The primary

responsibility o f 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 duties and

abilities wheneve r required.

3 2 . Respondent alleged that Christian failed to address

visible factors that could have affected the relocation of

Germonprez, failed to notify her shift commander of the

potential adverse situation with Germonprez, failed to take

proper prec autions in attempting to transport Germonprez, and

failed to establish and maintain proper physical control of

Germonprez during the relocation.

3 3 . Unless otherwise provided by statute, 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).

Thus, Respondent has the burden to establish the allegations

against Christian by a preponderance of the evidence. Dalem v.

Department of Corrections , 720 So. 2d 575, 576 (Fla. 4th DCA

1998); Department of Agriculture and Consumer Services v.

Edwards , 654 So. 2d 628, 631 (Fla. 1st DCA 1995).

34. Respondent did establish by a preponderance of the

evidence that Christian faile d to follow General Order 14 - 1.3

relating to the maximum safety requirements for the use of

handcuffs. It was clear that the use of handcuffs in accordance

with the maximum safety requirement was required after

Germonprez charged the detention deputies in Isolation Cell 3

and struggled with the detention deputies. Although the

detention deputies had to secure Germonprez with frontal

handcuffing in order to handcuff him as quickly as possible,

Christian should have ordered the detention deputies to reapply

the handcuffs in accordance with the prescribed procedures once

Germonprez had calmed down. Her failure to follow the correct

handcuffing procedures, resulted in the lack of physical control

of Germonprez as he was being escorted down the hall to South - 6

and after he was placed in South - 6.

35. Respondent did establish by a preponderance of the

evidence that Christian should have notified her supervisor

Williams after the use of force in Isolation Cell 3 and should

have called for medical staff to assess Germonprez before

transporting him to South - 6 and that she failed to do either.

36. Christian's failure to order the repositioning of

Germonprez' handcuffs prior to transferring him to South - 6, her

failure to timely notify her supervisor of the use of for ce in

Isolation Cell 3, and her failure to get the medical staff to

assess Germonprez after the use of force in Isolation Cell 3

were violations of General Order 3 - 1.1, Rule and Regulation 5.4,

a level five violation. A violation of one level - five offense

results in the employee being assessed 50 disciplinary points,

which allows for discipline from a five - day suspension to

termination.

37. As a supervisor, Christian is held accountable for her

exercise of discretion and judgment. While her decisions

reg arding the Germonprez incident do not appear to be malicious

or reflective of a deliberate indifference to the needs of

Germonprez, they do reflect serious lapses in judgment. Thus,

the ten - day suspension and 12 months of supervisory probation

are within the range of permissible discipline and are proper

for the circumstances.

38. Christian argues that the disciplinary investigation

violated General Order 10 - 1, which provides that every attempt

should be made to complete the investigation within 45 days a nd

that a continuation of the investigation beyond the 45 - day

period requires the approval of the Sheriff. There were two

investigations, the first investigation was into the death of

Germonprez to determine the circumstances surrounding his death.

The i nvestigation began shortly after Germonprez's death in

2003. The second investigation was a disciplinary investigation

of various personnel involved in the transfer of Germonprez to

South - 6 on March 11, 2003. The disciplinary investigations

began after t he various employees, including Christian, were

notified in mid - February 2005 that they were being investigated.

The investigation was completed. The Administrative Review

Board reviewed the investigation, and Christian was notified of

the findings of th e Administrative Review Board and of her

suspension and probation on April 15, 2005. The record is not

clear on the exact date that the investigation concluded;

however, the record is clear that 58 days elapsed from the time

Christian was notified of the investigation and the time she was

notified of her suspension. General Order 10 - 2.4J requires that

the investigative file be delivered to the Administrative Review

Board at least five calendar days prior to the convening of the

board; thus, the investigat ion would have been completed by

April 9, 2005, at the latest.

39. The 45 - day investigation period is not jurisdictional;

the Sheriff could extend the 45 - day period. See Hernandez v.

Kissimmee Police Department , 901 So. 2d 420, 421 (Fla. 5th DCA

2005). Christian has not demonstrated that any failure to

complete the investigation within 45 days prejudiced her defense

in anyway or denied her due process.

40. Christian also argues during Fletcher's interview of

her in 2003, that he failed to advise her of her rights prior to

interrogating her. At the time of the interview in 2003,

Christian was not the subject of the investigation because it

was not a disciplinary investigation. Therefore, Fletcher was

not required to advise her of her rights or allow her to be

represented by counsel. When Christian was interviewed in 2005,

she was advised of her rights and afforded an opportunity to be

represented by counsel because she was the subject of the

disciplinary investigation.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal o rder be entered finding that

Christian violated General Order 3 - 1.1, Rule and Regulation 5.4 ;

suspending her for ten days ; and placing her on supervisory

probation for 12 months.

DONE AND ENTER ED this 10 th day of November , 2005 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of November , 2005 .

COPIES FURNISHED :

Keith C. Tischler, Esquire

Jolly & Peterson, P.A.

2145 Delta Boulevard, Suite 200

Post Office Box 37400

Tallahassee, Florida 32315

James A. Sheehan, Esquire

341 Third Street, South

St. Petersburg, Florida 33701

William C. Falkner, Esquire

Pinellas County Attorney's Office

315 Court S treet

Clearwater, Florida 33756