06-001971 Pinellas County Sheriff Office vs. John Galeener Status: Closed Recommended Order on Tuesday, October 10, 2006.

Summary: Petitioner proved the allegations of untruthfulness and unbecoming conduct, but failed to prove allegations of insubordination and to prove that termination from employment, rather than suspension, was a reasonable discipline under the circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF 'S )

OFFICE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1971

)

JOHN GALEENER , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrativ e Law Judge Daniel Manry conducted the formal

hearing in this proceeding on August 24, 2006, in Largo,

Florida, on behalf of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Keith C. Tischler, Esquire

Jolly & P eterson, P.A.

2145 Delta Boulevard, Suite 200

Post Office Box 37400

Tallahassee, Florida 32315

For Respondent: John W. Galeener , pro se

18308 Caufield Road

Spring Hill, Florida 34610

STATEMENT OF THE ISSUES

The issues presented are whether Petitioner engaged in

untruthful and unbecoming conduct and committed insubordination

in violation of General Order (Rule) 3 - 1.1, Sections 5.6 and

5.14c and Rule 3 - 1.3, Section 5.17 a , and, if so, whether the

proposed discipline is reasonable .

PRELIMINARY STATEMENT

In an Inter - Office Memorandum dated May 18, 2006 (the

charging document), Petitioner notified Respondent that

Petitioner intended to terminate Respondent's employment based

on the violations alleged therein. Respondent timely requested

an administrative hearing.

At the hearing, Petitioner submitted for admission into

evidence 21 exhibits, the live testimony of eight witnesses, and

the deposition testimony of the s heri ff. Respondent testified

in his own behalf and submitted six exhibits for admission into

evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the Transcript of the hearing

filed with DOAH on August 31, 2006 . Petitioner timely filed its

Proposed Recommended Order (PRO) with DOAH on September 8, 2006.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the constitutional officer responsible

for providing law enforcement and correctional servic es within

Pinellas County, Florida. At all times pertinent to this case,

Petitioner employed Respondent as a deputy sheriff, and

Respondent was governed by the rules cited in the charging

document.

2. By rule, Petitioner requires its employees, including

Respondent, to ensure that information in Petitioner's records

concerning the employee's physical residence is accurate.

Petitioner must be able to contact employees during emergencies

when the usual means of communication are interrupted , and

Petitioner must be able to direct written communication to the

physical residence of each employee.

3. In November 2004 , Respondent listed in Petitioner's

records a physical residence in Largo, Florida. However,

Respondent never resided at that location.

4. I n July 2005, Respondent's supervisor instructed

Respondent to ensure that the residence address listed for

Respondent was correct and current. Respondent did not correct

his residence of record .

5. From November 2004 until February 2006, Respondent ha d

no residence and was unable to report a residence to Petitioner.

In February 2006, Respondent moved into his sister's house in

Spring Hill in Pasco County, Florida (Spring Hill). After

moving to Spring Hill, Respondent did not report the Spring Hill

ad dress to Petitioner.

6. Prior to November 2004, Respondent experienced severe

financial distress caused by a four - year divorce proceeding and

custody "battle." Respondent's personal vehicle was

repossessed. Respondent was unable to pay the rent due for his

apartment and did not have sufficient credit or creditworthiness

to move to another apartment. In November 2004, Respondent

became homeless.

7. From November 2004 until sometime in January 2005,

Respondent lived in the vehicle issued to him by Pet itioner

(department vehicle). Respondent showered before work in

facilities at the workplace. From sometime in January 2005

until his accident in February 2006, Respondent resided in a

camper with a female in the parking lots of apartments in

Oldsmar and Tarpon Springs in Pinellas County, Florida. On

December 13, 2005, the IRS garnished Respondent's salary. After

the accident in February 2006, Respondent resided with his

sister in Spring Hill.

8. Respondent did not report an accurate physical

residence to Petitioner because Respondent was ashamed and

embarrassed over his financial distress. As Respondent

explained in his testimony:

I didn't have an address, and I didn't have

the balls to tell anybody I didn't have an

address, nor did I have the desire to go

through an internal affairs investigation as

to how I allowed myself to get into such

financial distress.

Transcript at 187.

9. Petitioner classified the most severe violations as

"Level Five Violations " within the meaning of Rule 3 - 1.1 .

Responde nt committed two l evel - f ive violations . The false and

untruthful information that Respondent caused to be entered into

the official record maintained by Petitioner prior to July 2005

violated Rule 3 - 1.1, Section 5.14c., related to conduct

unbecoming Petit ioner's employees. The second level - five

violation occurred in July 2005, when Respondent failed to

correct his address of record .

10. Petitioner devoted a substantial portion of the

hearing to evidence of a third level - five violation in which

Responde nt allegedly failed to disclose an accurate physical

residence during the administrative investigation that preceded

this proceeding. However, the charging document does not allege

facts involving the administrative investigation. The factual

allegations in the charging document relevant to the false

address are contained in one paragraph on page s one and two of

the charging document. That relevant paragraph alleges:

You had the address . . . in Largo listed as

your residence. . . . Your supervisor

re quested you update the address to ensure a

current listing for hurricane preparedness.

You indicated to your supervisor that the

address was both correct and current. This

was later determined to be untruthful and

caused false entries to be made in offic ial

agency records.

11. Petitioner determines discipline in specific cases

based on a point system published in Rule 10 - 2.6, last revised

on November 12, 2004. Points are allocated by "determining the

level of violation" prescribed in Rule 3 - 1 "combi ned with the

number of charges per level." A level - five violation is the

most severe class of violations, and a level - three violation is

a less severe violation.

12. The point system allocates 60 points for two, level -

five violations. The Progressive Discipline Worksheet admitted

as Petitioner's Exhibit 25 (the worksheet), shows that

Petitioner allocated 75 points for two, level - five violations of

Rule 3 - 1.1, Section 5.6, and an additional 15 points for a

third, level - five violation of Rule 3 - 1.1, Sect ion 5.14c; for a

total of 90 points. The apparent mathematical error is harmless

because the point system requires only 50 points to impose a

maximum penalty of termination from employment.

13. By rule, Petitioner prohibits employees, including

Respon dent, from driving department motor vehicle s outside the

county without prior permission from a supervisor. Supervisors

routinely grant permission for work - related travel , but not for

personal travel. Employees who reside outside of Pinellas

County are r equired to leave department vehicles in Pinellas

County after work. Personal use of department vehicles inside

Pinellas County does not require prior permission.

14. The charging document sets forth the relevant factual

allegations on page two and allege s:

[Y]ou have been taking your assigned

department vehicle out of county repeatedly

without authorization in violation of agency

policy.

Paragraph number two in the charging document alleges that this

is a level - three violation which is a less severe viol ation than

a level five violation.

15. In January 2006, Respondent was assigned to

Petitioner's Court Services Division (Division). The Division

is responsible for security at the Pinellas County Courthouse

(the courthouse). An annual review of departme nt vehicles

assigned to the Division revealed that Respondent's department

vehicle accumulated excessive miles when compared to:

Respondent's job responsibilities; miles driven by other

employees with similar job responsibilities; and Respondent's

residenc e of record, which was five and one - half miles from the

workplace.

16. Petitioner issued a new vehicle to Respondent on

October 13, 2004, with 115 miles on the odometer. Petitioner

suspended Respondent's use of the vehicle on February 17, 2006.

In appro ximately 16 months, Respondent's department vehicle

accumulated 33,137 miles. Excluding miles attributable to the

daily commute based on the residence of record, Respondent

accumulated 29,624 duty - miles compared to 5,544 and 2,800

duty - miles accumulated by two comparable employees during

similar intervals.

17. From approximately February 9 through 16, 2006,

investigators tracked Respondent's department vehicle by hiding

a global positioning system on the vehicle. The recorded data

showed that Respondent was driving the vehicle each day

approximately 108 miles from Spring Hill to work and back.

18. The unauthorized use of the vehicle violated

Rule 3 - 1.3, Section 3.3 , requiring obedience to pertinent rules

and regulations. The unauthorized use of the vehicle is a

level - three violation. The point system authorizes the

allocation of 15 points for one level - three violation. The

worksheet shows that Petitioner allocated no points for this

single level - three violation. The 15 points that Petitioner did

a llocate in the worksheet is allocated for a third level - five

violation.

19. The charging document alleges in paragraph number four

on page one that Petitioner committed insubordination in

violation of Rule "3 - 1.3" [ sic ] , Section 5.17c. Rule 3 - 1.3

addre sses level three violations and does not include a

"Section 5.17c." Rule 3 - 1.3, Section 3.4 requires personnel to

perform duties required by a lawful order, but the charging

document does not charge that the alleged insubordination

violated Rule 3 - 1.3, S ection 3.4. Nor does the charging

document charge that the alleged insubordination violated

Rule 3 - 1.1.

20. The error in the notice of charges provided in the

charging document appears to be harmless. The worksheet shows

that Petitioner allocated no points to the alleged

insubordination. Although Petitioner devoted a substantial

amount of time in the formal hearing attempting to prove

allegations of insubordination, the inadequate notice in the

charging document and the omission of points from the wo rksheet

render the issue of insubordination moot and make findings

concerning the allegations of insubordination unnecessary for

the proposed agency action to be authorized .

21. If findings concerning the issue of insubordination

were necessary to aut horize the proposed agency action, a

preponderance of evidence does not support a finding of

insubordination. The charging document alleges:

During the course of this Administrative

Investigation, you were . . . insubordinate

to both your supervisor and t o the

Inspections Bureau Commander. You were

ordered by your supervisor to call in every

Tuesday and Friday until your return to

duty. You knowingly failed to follow this

directive. Furthermore, you were ordered by

the Inspection Bureau Commander . . . to

contact Administrative Investigation by a

specific date to set your subject interview .

You failed to respond to this directive

within the specified time.

Charging d ocument, page two .

22. Rule 3 - 1.1, Section 5.17c, defines insubordination, in

r elevant part, to be a "failure or deliberate refusal to obey a

lawful order." Without the capacity to obey a lawful order,

Respondent would be incapable of failing or deliberately

refusing to obey the order. A finding that Respondent had the

capacity to comply with the orders given to him is not supported

by a preponderance of the evidence.

23. Respondent was absent from duty due to an injury he

suffered on the job and for which he was being treated during a

pending workers ' compensation claim. During the time in which

the alleged insubordination occurred, Respondent underwent

surgery and was on prescribed pain medications. A finding that

Respondent had either the physical or mental capacity to obey

the relevant orders is not supported by a preponderan ce of the

evidence. As Respondent explained:

I can certainly testify to my own knowledge

. . . that the taking of these medications

kept me in a state of . . . semi -

consciousness. The extent of my abilities

while being on these medications was

sleeping a nd maybe eating one meal over the

course of three. . . . I also suffered from

memory loss. I had no ability to carry on a

conversation, either in person or on the

telephone. I would get phone calls from

friends. . . . I couldn't even speak to

them on t he telephone. I couldn't carry on

a conversation with them. I'd answer the

telephone or get on the telephone and end up

falling asleep.

Transcript at 188, 189.

It is unnecessary to find that a preponderance of evidence

supports a finding that Respondent lacked the capacity to obey

the orders.

24. Petitioner prescribes the range of penalties

applicable to specific discipline cases on page eight of

Rule 10 - 2 entitled "Discipline Ranges." The minimum discipline

for violations of 60 points is a suspension of seven days. The

maximum discipline for violations totaling 60 points is

termination from employment.

25. The Discipline Ranges do not prescribe intelligible

standards, including aggravating and mitigating circumstances,

to guide the exercise of agency discretion required to choose

discipline that is authorized with in the minimum and maximum

ranges in a particular case or to determine whether the choice

of discipline in a particular case is reasonable. That

determination is subject to the sole discret ion of a single

individual, the s heriff. The participation of a collective body

such as the administrative review board is excluded from the

choice of discipline to be imposed in a particular case.

26. Several mitigating factors make termination from

employment an unreasonable level of discipline in this case.

Prior to the acts committed by Respondent in this proceeding,

Respondent had a long history of service to Petitioner without

discipline. When Respondent committed the violations that are

the su bject of this proceeding, Respondent was suffering from a

confluence of adverse circumstances that included divorce,

financial distress, injury, and medical treatment. The

violations that Respondent committed did not harm a member of

the public and did no t impugn the public reputation of

Petitioner for integrity in the execution of Petitioner's

constitutional duties.

27. Respondent has 22 years of credible service and

requests a suspension until June 30, 2006, rather than

termination, so that Respondent m ay "submit [his] retirement

papers effective June 30, 2006." Respondent does not seek

reinstatement or back pay. A suspension without pay will result

in no prejudice to Petitioner and will acknowledge a long

history of service to Petitioner prior to the events that lead

us here .

CONCLUSIONS OF LAW

28. DOAH has jurisdiction over the subject matter and the

parties in this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2005). DOAH provided the parties with adequate notice of

the formal hearing.

29. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the charging document

and the reasonableness of the proposed discipline . Department

of Transpor tation 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).

30. Petitioner satisfied its burden of proof concerning

the alleged offenses other than insubordination. For reasons

stated in the f indings of f act, however, Petitioner did not

prove by a preponderance of the evidence that the proposed

discipline , although authorized, is reasonable under the

circumstances.

RECOMMENDATION

Based upon the fore going Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a f inal o rder finding

Respondent guilty of the alleged violations other than

insubordination and suspending Respondent without pay through

June 30, 2006.

DONE AND ENTE R ED this 10th day of October , 2006 , 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) 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 10th day of October , 2006 .

COPIES FURNISHED :

William C. Falkner, Esquire

Pinellas County Attorney' s Office

315 Court Street

Clearwater, Florida 33756

Keith C. Tischler, Esquire

Jolly & Peterson, P.A.

2145 Delta Boulevard, Suite 200

Post Office Box 37400

Tallahassee, Florida 32315

John W. Galeener

18308 Caufield Road

Spring Hill, Florida 34610

NO TICE 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.