05-001888 Shane Collinsworth vs. Pinellas County Sheriff Status: Closed Recommended Order on Friday, October 7, 2005.

Summary: Termination of employment for insubordination was improper in the case in which a direct order was not in evidence, which showed that Petitioner reasonably understood the statement of his superior to be advice rather than an order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANE COLLINSWORTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1888

)

PINELLAS COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing of this case on August 30, 2005, in Largo,

Florida , on behalf of the Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner: Kenneth J. Afienko, Esquire

Kenneth J. Afi enko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

For Respondent: Keith C. Tischler, Esquire

Jolly & Peterson, P.A.

2145 Delta Boulevard, Suite 200

Post Office Box 37400

Tallahassee, Florida 32315

STATEMENT OF THE ISSU ES

The issue s presented are whether Respondent properly

terminated Petitioner from his employment as a d eput y s heriff

for alleged insubordination in violation of Chapter 89 - 404,

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

S ection 8, Laws of Florida (the Civil Service Act ) and

Respondent's General Order Section 3 - 1 .1, Rule and Regulation

5.17(a) , and, if not, whether Respondent should reinstate

Petitioner to his former position with back pay , benefits, and

seniority .

PRELIMINARY STATEMENT

On May 13, 2005, Respondent determined that Petitioner

committed insubordination and also engaged in prohibited

conduct , in violation of the Civil Service Act and

Section 3 - 1.1 , Rule and Regulation 5.17 (a), and Rule and

Regulation 3.1 . Respondent terminat ed Petitioner’s employment

as a deputy sheriff , and Petitioner timely requ ested an

administrative hearing. Respondent referred the matter to DOAH

to conduct the hearing.

Pri or to the hearing, Petitioner withdrew his request for a

hearing to challenge t he alleged violation of standards of

conduct in Rule and Regulation 3.1 . The only di sputed ground

for termination that remains at issue in this proceeding is the

alleged i nsubo rdination .

T he parties agree that in the absence of a finding of

insubordination , termination of employment is not an appropriate

penalty for the prohibited conduct that Petitioner does not

challenge . Petitioner asserts that a finding of

insubordinatio n does not warrant term ination of employment .

At the hearing, Respondent proceeded first with its case in

chie f. T he parties agree that Respondent has the burden of

proof.

Respondent presented the testimony of three witnesses and

submitted 1 0 exhibi ts for admission in to evidence. Petitioner

testi fied in his own behalf, presented the testimony of two

witnesses, and submitted three exhibits for admission in to

evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are rep orted in the Transcript of the hearing

filed with DOAH on September 8, 2005. Petitioner and Respondent

timely filed their respective Proposed Recommended Orders (PROs)

on September 16 and 19, 2005 .

FINDINGS OF FACT

1. Respondent is a constitutional offic er of the State of

Florida . Respondent is responsible for providing law

enforcement and correctional services within Pinellas County,

Florida. At all times pertinent to this case, Respondent

employed Petitione r as a deputy sheriff , and Petitioner was

sub jec t to relevant rules and regulations identified in the

record as General Orders and Rules .

2. Sometime i n July 2004, Ms. Caroline Hart , a private

citizen, communicated to Petitioner that she had previously been

the subject of inappropriate sexual misc onduct from Deputy

S heriff Gerald Akins when Deputy Akins responded to a call from

Ms. Hart within the city of Dunedin, Florida . Ms. Hart knew

Petitioner from a previous relationship.

3. Petitioner was uncertain of the procedure he should

follow, and s ought advice from Corporal James Cooper ,

Petitioner's immediate supervisor . Corporal Cooper was the

acting sergeant for the ir squad . N o sergeant was scheduled to

be on duty that night when the squad was to begin its shift .

4. Petitioner telephoned Cor poral Cooper and reported the

accusations by Ms. Hart . Corporal Co oper assured Petitioner

that Petitioner had followed the correct procedure and that

Corporal Cooper would report the information to Sergeant Michael

Rogers, the shift commander for the shif t that included their

squad and that of Sergeant Rogers .

5. During the conversation between Corporal Cooper and

Petitioner, Corporal Cooper stated that Petitioner should not

discuss the matter with Deputy Akins . Petitioner subsequently

telephoned Deput y Akins and told him abo ut the accusations by

Ms. Hart .

6. Respondent alleges that when Petitioner communicated

with Deputy Akins Petitioner committed insubordination by

"refusing to obey a lawful order" from Corporal Cooper within

the meaning of Genera l Order Section 3 - 1.1, Subsection

5.17(a)(the rule). Petitioner asserts that the statement by

Corporal Cooper was advice, rather than an order, and that

Petitioner did not commit insubordination.

7 . The factual issue presented is whether Corporal Cooper

ordere d Petitioner not to speak to Deputy Akins. A finding of

insubordination requires a preponderance of evidence to show

that Corporal Cooper intended to issue an order, that the

express words used by Corporal Cooper clearly stated an order,

that Petiti oner understood the statement to be an order, and

that Petitioner intentionally refused to follow an order.

8 . Relevant rule s do not define terms such as an "order"

or "refusing an order" and do not distinguish an "order" or an

"instru ction" from "advic e." The trier of fact defines relevant

terms based on the plain and ordinary meaning of relevant terms

as they are defined in The American Heritage Dictionary of the

English Language , 4th ed., at 25, 1238, and 1469 (Boston 2000) ,

and as explained in relev ant testimony during the hearing . As

the Chief Deputy explained during his testimony:

The terminology that we use is a lawful

order. I'm not certain that there is a

specific definition within the policies. My

understanding of the . . . the term order

. . . in the context of our rules and

regulations is basically the definition that

I guess you would refer to in a dictionary

in terms of when an order is given.

Transcript ( TR ) at 220.

9 . Corporal Cooper clearly intended to order Petitioner to

refrain from talking to Deputy Akins. Corporal Cooper assumed

in his own mind there was a possibility for either a criminal or

internal investigation , or both . Consistent with standard

operating procedures in either type of investigation, Corporal

Cooper intende d to preserve the opportunity for investigators to

"blind side" Deputy Akin s by not giving him a head's up before

questioning him .

10. A preponderance of evidence does not support a finding

that Corporal Cooper ever articulated the disputed order . The

wo rds used by Corporal Cooper to articulate the alle ged order

are not in evidence. Corporal Cooper does not recall what he

said to Petitioner.

11 . T he words used to communicate an orde r are essential

to the existence o f an order and to an understanding in the mind

of a recipient , such as Petitioner , that he is receiving an

order. As t he Chief D eputy explained during his testimony:

Obviously you need to be clear as to what

words were used at the time when Corporal

Cooper spoke with Deputy Collinsworth as it

related to any communication with Deputy

Akins.

TR at 221 - 222.

12 . Corporal Cooper does not recall the exact words he

used to communicate with Petitioner. Petitioner understood

Corporal Cooper to advise Petitioner not to contact Deputy

Akin s . Corpor al Cooper and Petitioner were the only parties to

their conversation.

13 . The exact words used by Corporal Cooper, if they were

in evidence, must also be i nterpreted in the context of the

conversation with Petitioner. In response to a question from

the t rier of fact concerning t he distin ction between an order

and advice, the Chief Deput y explained :

And I think that the best way to describe

that is in the context of . . . the words

used. . . . [T]here would be some question

as to the specific verbiage tha t was used

and putting that into context as you made

your decision.

TR at 221 - 222.

14 . The conversation between Corporal Cooper and

Petitioner arose in the context of Petitioner soliciting advice

from Corporal Cooper. Corporal Cooper gave Petitioner ad vice in

the same conversation in which he intended to "instruct "

Petitioner to refrain from talking with Deputy Akins . However,

Corporal Cooper did not verbally distinguish the advice from the

instruction or clearly segue from advice to an order .

15 . C onflict testimony from Corporal Cooper during direct

and cross examination elucidates the ambiguous context of the

conversation with Petitioner . During direct examination by

counsel for Respondent , Corporal Cooper testified that he gave

Petitioner an inst ruction in response to Petitioner's request

for advice :

A . Deputy Collinsworth had called. He was

upset. He stated he needed some advice .

Q . Did you give Mr. Collinsworth some

advice regarding his dealings with Ms. Hart?

A . Yes. I told him not to t alk with her

any further, ignore her phone calls and not

to have any personal contact with her.

Q . And what did you tell Mr. Collinsworth

about the allegations that Ms. Hart had made

pertaining to Deputy Akins?

A . Well . . . I told him that he started at

the right spot and that I was going to h ave

to get with Sergeant Rogers, because he was

our shift commander at the time, and present

the information to him and see where it goes

from there.

Q . And did you give . . . Deputy

Collinsworth any other instr uctions about

how he should deal with this information?

A . I did tell him not to contact Akins, so

I wanted to get a word for word from Akins.

I didn't want him to have a head's up.

(emphasis supplied)

TR at 53 - 55.

16 . On cross - examin ation, Corp oral Cooper did not recall

the exact words he used to communicate with Petitioner and cast

the conversation with Petitioner in a different light . In

relevant part, Corporal Cooper testified:

Q . And Shane was off duty to the best of

your knowledge?

A . Y es.

Q . 'Cause he worked with you on the same

shift, is that correct?

A . Yes.

Q . And you gave advice to Deputy

Collinsworth about this whole situation,

didn't you?

A . Yes .

Q . And some of your advice was to terminate

all the phone calls with Ms. Ha rt and all

the communication and all that, is that

correct?

A . Yes .

Q . And that wasn't an order, was it?

A . No.

Q . Now when you were testifying on direct

you mentioned that you went into the

conversation about what to do with Akins, is

that corre ct?

A . Yes.

Q . Did you preface anything in between the

conversation about Hart and now talking

about Akins, did you preface it with

anything such as, well, now this is an

order? Did you make any suggestion that you

were changing from advice to an orde r?

A . Not in that manner, no.

Q . And as a matter of fact you don't

remember what you said verbatim, is that

correct?

A . That's correct.

Q . As a matter of fact you could have said

I don't think you should call him. Could

you have said that?

A . Ye s.

Q . And that wouldn't be an order, would it?

A . No.

Q . And you could have also said I don't

think it's a good idea to call him. Could

you have said that?

A . Yes.

Q . And if you did indeed say that, that

wouldn't be an order, would it?

A . No.

Q . And you could have also said, no, I

wouldn't. Why get him upset? You could

have said that, couldn't you?

A . Yes.

Q . And had you said that, that wouldn't be

an order, would it?

A . No.

Q . Deputy Collinsworth has never disobeyed

your orders i n the past, is that correct?

A . Correct.

(emphasis supplied)

TR at 69 - 71.

17 . Petitioner's understanding that Corporal Cooper

advised, rather than ordered, Petitioner not to talk to Deputy

Akins was corroborated by Deputy Akins. At a time more

pro ximate to the incident, Petitioner asked Deputy Akins not to

tell anyone about their conversation because Corporal Cooper had

"advised" Petitioner not to discuss the matter with Deputy

Akins. In relevant part, Deputy Akins testified:

Q . Did Deputy Colli nsworth tell you whether

you should expect a call from Corporal

Cooper?

A . No, he did not.

Q . Do you recall how this conversation

concluded with Deputy Collinsworth?

A . He stated that if anyone asked if we had

spoken, to say no, we had not.

Q . And did you ask him why he was asking

you to do that?

A . Yes.

Q . And what did he say in response to that?

A . Because he was advised by Corpo ral

Cooper not to talk to me. . . . I don't

remember verbatim word by word how the

conversation went, but . . . I 'm absolutely

positive of the context of the conversation

and how it was said. (emphasis supplied)

TR at 112 and 116 - 117.

18 . It is undisputed that a dvice is not an order. Advice

is a recommendation or suggestion. An order is a command or

instructi on given by a superior to a subordinate to act or to

refrain from an act .

19 . The words used by Corporal Cooper and the context of

the conversation with Petitioner did not create an understanding

in the mind of Petitioner that he had received an order no t to

contact Deputy Akins. Petitioner lacked the requisi te intent to

refuse to follow an order.

20 . Respondent urges that Petitioner should have

underst ood he was receiving an order from Corporal Cooper. As

the Chief Deputy explained during his testimon y:

But I would also tell you that Corporal

Cooper and Deputy Collinsworth were both

aware of the fact that an allegation is

made, that there is potential for an

administrative investigation, and in the

context of their discussion if Corporal

Cooper was cle ar that there was the

possibility of an administrative

investigation , then at that point by general

order there is no discussion with the

principal. (emphasis supplied)

TR at 222.

21 . Corporal Cooper was not clear that there was the

possibility of an a dministrative investigation. Corporal Cooper

advised Petitioner that he had start ed at the right place and

that Corporal Cooper would report to the shift commander and see

where it goes from there.

22 . Even if Corporal Cooper clearly stated that an

adm inistrative investigation were possible, Respondent did not

terminate Petitioner from his employment on the alleged ground

that Petitioner violated Respondent's written policy . The

synopsis of the charge against Petitioner states:

You were ordered by Corp oral Cooper not to

call or speak to Deputy Akins regarding an

allegation concerning him. You disregarded

this order and then you told Deputy Akins

not to tell Corporal Cooper that you called

him concerning the allegation. (emphasis

supplied)

Inter - Offic e Memorandum dated May 13, 2005.

23 . The expression, "see where it goes from there" is not

synonymous with an administrative investigation. The matter

could have been resolved through informal investigation by a

front line supervisor. As Sergeant Roger s explained during

cross - examination by counsel for Respondent :

Q . If Akins was making improper comments to

a member of the public, particularly someone

that was a victim of a crime that he was

involved in investigating, that would be

improper?

A . Yes, sir.

Q . That would be subject to an

investigation?

A . Depends on what type of investigation

you mean. Whether it would be a formal

investigation or one done by a front line

supervisor. That was my intent, I was going

to have a front line supervisor l ook into

it.

TR at 247.

24 . Sergeant Rogers did not request an administrative

investigation. When Corporal Cooper reported the allegations

against Deputy Akins to Sergeant Rogers, the shift commander

told Corporal Co oper to refer the matter to a serg eant

identified in the record as either Sergeant Hubbard or Marshall

(Sergeant Marshall) . Sergeant Marshall was th e shift commander

for the squad or squads assigned to the city of Dunedin,

Florida, the situs of the alleged violation.

25 . Sergeant Rogers ordered Corporal Cooper to refer the

matter to Sergeant Marshall for investigation the next day.

Sergeant Rogers received the report from Corporal Cooper at

about 4:00 a.m. Ms. Hart was "extremely drunk," according to

the information available to Sergean t Rogers, when Ms. Hart made

the allegations against Deputy Akins. As Sergeant Rogers

explained during cross - examination by counsel for Respondent:

[T] he woman was extremely drunk. Why would

I call her back at four or five in the

morning when she's proba bly passed out? Let

her sober up and let another supervisor talk

to her later.

TR at 248.

26 . Respondent did not undertake an administrative

investigation of the allegations by Ms. Hart aga inst Deputy

Akins until months later when R espondent discover ed those

allegations during the administrative investigation of

Petitioner that led to this proceeding. The investigation of

the allegations by Ms. Hart exonerated Deputy Akins.

27 . Even if the words used by Corporal Cooper to

communicate his intended order to Petitioner were in evidence,

the disc losure by Petitioner to Deputy Akins of the allegations

by Ms. Hart did not defeat the purpose of the alleged order from

Corporal Cooper. As the Chief Deputy explained during his

testimony:

Q . Did the basis f or exonerating Deputy

Akin s , if you know, have any relationship

with the potential harm created by the

disclosure of the allegations by petitioner

to Deputy Akins?

A . [I]n fact I don't believe it would have

changed the final outcome. It [exoneration]

pr obably still would have been followed

. . . . The primary concern was the [lack

of] veracity of the [alleged] victim.

TR at 226 - 227.

28 . The refusal of Petitioner to follow the advice of

Corporal Cooper arguably may have been disrespectful . The

re fusal arguably may have been made contemptuous by the efforts

of Petitioner to conceal his conversation with Deputy Akins.

However, disrespectful and contemptuous disregard of advice is

not insubordination.

29 . Corporal Cooper did not treat the disclosur e by

Petitioner to Deputy Akins as insubordination. Respondent's

written policies require Corp oral Cooper to report

insubordination to his superior. Corporal Cooper neither

reported the alleged insubordination to Sergeant Rogers nor

file d a written repor t of insubordination. Corporal Cooper

explained, in substance, that he routinely does not write up

subordinates because he needs to maintain a working relationship

with his deputies.

30 . Corporal Cooper thinks he may have filed a verbal

report with the shift commander but, again, does not recall the

exact words in his verbal report. The shift commander does not

recall such a report.

31 . When Deputy Akins informed Corporal Cooper that

Petitioner had disclosed the allegations by Ms. Hart earlier

that evening, Corporal Cooper did no t respond in a manner

consistent with a perce ption that Petitioner had committed

i nsubordination. As Deputy Akins explained during direct

examination by counsel for Respondent:

Q . And what did Corporal Cooper tell you in

th at conversation?

A . He asked me if I had spoken with Deputy

Collinsworth and I advised him yes.

Q . Did he say anything in response to that?

A . He stated he had a feeling that

Collinsworth might have called me.

TR at 113.

32. Corporal Cooper had no reason to believe that

Petitioner "might" commit insubordination. Petitioner had never

disobeyed orders from Corporal Cooper in the past.

CONCLUSIONS OF LAW

33 . D O A H has jurisdiction of the subject matter and the

parties to this action. The parties r eceived adequate notice of

the a dministrative hearing. §§ 120.57(1) and 120.68(8), Fla .

Stat. (2005).

34 . Respondent has the burden of proof in this proceeding.

Respondent must show by a preponderance of the evidence that

Respondent committed the act s a lleged in the charging document

and the reasonableness of the proposed penalty. 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. 1 st DCA 1977).

35 . Respondent did not show by a preponderance of the

evidence that Corporal Cooper articulated an order. The words

used to articulate the alleged order are not in evidence.

Without an order, there can be no insubordination. Compare

Rosar io v. Burke , 605 So. 2d 523, 524 (Fla. 2d DCA 1992)(no

insubordination in the absence of an order), Rutan v. Pasco

County School Board , 435 So. 2d 399, 400 - 401 (Fla. 2d DCA

1983)(record does not demonstrate an order from anyone ever

existed) and Smith v. S chool Board of Leon County , 405 So. 2d

183, 185 (Fla. 1st DCA 1981)(record did not demonstrate

existence of an order) with Dolega v. School Board of Miami - Dade

County , 840 So. 2d 445, 446 (Fla. 3d DCA 2003)(noncompliance

with written directive is insubordi nation), Johnson v. School

Board of Dade County, Florida , 578 So. 2d 387 (Fla. 3d DCA

1991)(touching students after previous instructions not to do so

was insubordination), and Thomas v. Brevard County Sheriff's

Office Civil Service Board , 456 So. 2d 540 ( Fla. 5th DCA

1984)(refusal to obey direct order to answer question during

investigation was insubordination).

36 . Respondent did not show by a preponderance of the

evidence that Petitioner possessed the requisite intent to

disobey an order from Corporal Cooper. Without proof of intent,

there is no insubordination. Cf . Forehand v. School Board of

Gulf County , 600 So. 2d 1187, 1192 - 1193 (Fla. 1st DCA 1992)(no

intent to disobey previous orders to ex clude student conduct

from calculation of academic grades when supervisor could not

recall exact words of teacher concerning teacher's use of

student conduct in grading system ).

37 . The attempt by Petitioner to conceal his conversation

with Deputy Akins arguably was disrespectful or contemptuous of

the advice he received from Corporal Cooper. However, neither

disrespect nor contempt is evidence of insubordination in the

absence of an order . Rosario , 605 So. 2d at 524 (evidence of

disrespect, friction, and disagreement is not evidence of

insubordination in th e absence of a direct order); Smith , 405

So. 2d at 184 - 185 (crumpling of evaluation form into small ball,

throwing it toward supervisor's desk, and saying, "This is what

I think of this and you too" is not insubordination in the

absence of a direct order).

38 . It is undisputed that the historical disciplinary

procedure for employees of Respondent has recently changed and

that Respondent is now the sole arbiter of discipline for

employees of the Office of the Sheriff of Pinellas County,

Florida. The Admi nistrative Review Board makes findings but no

longer participates further in the discipline of employees.

39. This proceeding is not conducted for the purpose of

reviewing the evidence available to Respondent when Respondent

terminated Petitioner's employ ment. This i s a de novo

proceeding conducted to formulate final agency act ion rather

than to review agency action previously taken. The ALJ must

consider relevant and material evidence available at the time of

the hearing even if suc h evidence were previ ously un available to

the agency at the time the agency acted. McDonald v. Department

of Banking and Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED th at Respondent enter a f inal o rder finding

Petitioner not guilty of i nsubordination , rescinding the

termination of employment, and reinstating Petitioner to his

former position of employment with back pay, benefits , and

seni or ity .

DONE AND ENTER ED this 7 t h day of October , 2005 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 7 th day of October , 2005 .

COPIES FURNISHED :

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Ave nue, North

St. Petersburg, Florida 33701

Keith C. Tischler, Esquire

Jolly & Peterson, P.A.

2145 Delta Boulevard, Suite 200

Post Office Box 37400

Tallahassee, Florida 32315

Aaron C. French, Esquire

4600 North Habana Avenue, Suite 17

Tampa, Florida 3361 4

William C. Falkner , Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.