07-001124 Pinellas County Sheriff`s Office vs. Diane Cross Status: Closed Recommended Order on Wednesday, October 24, 2007.

Summary: Petitioner has proven by a preponderance of the evidence that Respondent gave prescription medicine to another nurse, without a prescription; and then was untruthful during the investigation. Recommend Respondent`s termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S )

OFFICE , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1124

)

DIANE CROSS , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hear ing was conducted by Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), on August 16, 2007, in Largo, Florida.

APPEARANCES

For Petitioner: Benjamin R. Welling, Esquire

Ford & Harrison LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602 - 5133

For Respondent: Matthew P. Farmer, Esquire

Farmer & Fitzgerald, P.A.

708 East Jackson Street

Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent, Diane Cross, violated General Order 3 -

1.1, Rule 5.4 (Duties and Responsibilities), by obtaining and

giving Roba x in, a prescription medication, to David Richardson

on July 31, 2006.

Whether Respondent violated General Order 3 - 1.1, Rule 5.6

(Truthfulness), during the criminal and internal investigation

into her conduct on July 31, 2006.

PRELIMINARY STATEMENT

Petitioner, Pinellas County Sheriff's Office (Petitioner or

PCSO), emplo yed Respondent as a nurse supervisor at the Pinellas

County Jail Complex in Clearwater, Florida. After another nurse

supervisor reported that Respondent gave prescription medication

to a fellow nurse, without a prescription, in violation of PCSO

policies and the law, a PCSO investigation was conducted.

Following the investigation, PCSO's Inspections Bureau charged

Respondent with violations of General Order 3 - 1.1, Rule 5.4

(Duties and Responsibilities) and Rule 5.6 (Truthfulness).

Based on the seriousnes s of the violations, Sheriff Coats

determined that Respondent's misconduct warranted termination.

Respondent denied the allegations and sought a n impartial due

process hearing. This matter was referred to the DOAH on

March 8, 2007, and discovery ensued.

Counsel for both parties entered into a detailed joint pre -

hearing stipulation that was submitted at the hearing, in which

the parties agree that Respondent's appeal from Petitioner 's

proposed action hinges entirely on the factual issue of whether

Respond ent engaged in the misconduct outlined above. More

specifically, the parties stipulated that if this tribunal

determines that Respondent did indeed give Robaxin to Richardson

on July 31, 2006, this constitutes a violation of Rule 5.4.

Furthermore, the pa rties stipulated that , because Respondent

denied that she dispensed Robaxin to Richardson without a

prescription in interviews with PCSO's Narcotics Division

detectives and Inspections Bureau representative, if this

tribunal determines that Respondent obta ined and gave Robaxin to

Richardson on July 31, 2006, Respondent necessarily was

untruthful in interviews with the PCSO's representatives during

its investigation into the matter and that this necessarily

constitutes a violation of Rule 5.6.

At the hearing , Petitioner called three witnesses,

Bramnarie Kalicharan, David Richardson, and Ma r y Caldwell, and

offered 13 exhibits , which were received in evidence . The

deposition testimony of one witness, Michael Schiavo, was

offered in lieu of his live testimony . Respondent offered the

testimony of one witness, Rick Brennan, and testified in her own

behalf. Respondent offered no additional exhibits .

The Transcript of the hearing was filed on September 4,

2007. The date for filing the parties ' proposed findings o f

fact and conclusions of law was extended at Petitioner 's

request. Both parties timely filed their p roposals on

September 28, 2007. Each part y' s proposal ha s been carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. R espondent , a registered nurse, was employed by

Petitioner as a nurse supervisor at the Pinellas County Jail

Complex in Clearwater, Florida.

2. On the morning of July 31, 2006, Respondent and four

other nurse supervisors, David Richardson (Richardson) ,

Bra mnarie Kalicharan (Kalicharan), Rick Brennan (Brennan), and

Michael Schiavo (Schiavo), were gathered in the nurse

supervisor's office.

3 . Nurse Supervisor David Richardson was experiencing

severe back pain due to an injury, which he sustained the

previous day while off - duty .

4 . Richardson spoke with Respondent in some detail about

his back pain. Respondent asked Richardson what had happened to

cause him so much pain, and why he was at work when he was

barely able to remain standing.

5 . Respondent commen ted to Richardson a number of times

that "he should take something" and asked him if he normally

took medication for his back pain. When Richardson responded

that he did not normally tak e medication for this , Respondent

asked him why he did not. Responde nt continued to urge

Richardson to take medication for his back pain, but Richardson

continued to insist that he did not need anything.

6 . K a licharan and Brennan made passing comments about

Ric h ardson's back pain , noting that Richardson "looked

horrible," and was "walking kind of funny." However, it is

undisputed that neither asked Richardson about taking medication

for his pain, as Respondent did, or questioned Richardson about

his back pain for as long as Respondent did.

7 . No other nurse supervisor or employee of Petitioner

spoke to Richardson about his back pain that morning in the

nurse supervisor's office.

8 . After speaking with Richardson about his pain and

urging him to take medication, Respondent placed a phone call to

M ary Caldwell, a licensed practical nurse at the jail complex

who was under Respondent's supervision. She told Caldwell to

"please bring Robaxin 750 down to the office . " Caldwell did not

receive any other phone call s that morning requesting her to

bring Robaxin or any other medic ation to the nurse supervisors'

office. Nor did any other supervisor make a phone call from the

nurse supervisors' office that morning. In fact, no supervisor

had ever requested that Caldwell bring medication to the nurse

supervisor's office.

9 . Minutes after receiving this phone call, Caldwell took

a card of Robaxin out of her "med card" and took it to the nurse

supervisors' office, as she had been instructed to do. Once she

arrived at the nurse supervisors' office, Caldwell handed the

entire card of R obaxin to Respondent. Once Respondent received

the card of Robaxin from Caldwell, she gave it to Richardson.

Richardson pushed the pills of Robaxin out of the card and put

them in his pocket.

10 . T he testimony of each corroborating witness about

these f acts is essentially consistent .

1 1 . It is undisputed that Robaxin is not stored in the

nurse supervisors' office.

12 . It is undisputed by Respondent, and as a matter of

law, that Respondent did not have authority to dispense

prescription medication to so meone without a prescription from a

medical doctor.

1 3 . Richardson did not have a prescription for Robaxin on

July 31, 2006. Nor did Respondent perform a medical history of

Richardson before giving him Robaxin.

1 4 . None of the nurse supervisors in the o ffice

immediately reported this incident. However, Schiavo eventually

reported the incident to Director of Nursing Sylvia Watkins

approximately two months later , while discussing with Watkins an

informal complaint that Respondent and Brennan had lodged

ag ainst him. Watkins then reported the incident to her

superior, Health Pro gram Administrator Vicki Scotti.

15 . Once Scotti was informed of this incident, PCSO began

an investigation into the matter.

1 6 . The first stage of the investigation involved PCSO' s

Narcotics Division, which conducted a criminal investigation

into the matter, during wh i ch Respondent denied that she gave

Robaxin to Richardson at any time.

1 7 . On January 5, 2007, following the conclusion of the

criminal investigation, PCSO informed R espondent that a formal

complaint of misconduct had been filed against her and that she

was the subject of an internal Inspections Bureau I nvestigation

(Case No. AI - 06 - 082). PCSO also informed Respondent in this

memorandum that she was charged with violat ions of General Order

3 - 1.1, Rule 5.4 (Duties and Responsibilities) and Rule 5.6

(Truthfulness), noting:

You knowingly provided an agency member with

prescription medication which you are

unauthorized to prescribe. Furthermore ,

when questioned by PCSO Det ectives, you were

untruthful in you r recollection of the

incident in question.

1 8 . Brennan, Kalicharan, Richardson, Schiavo and Caldwell

were also subjects of the same investigation due to their

involvement in the events of July 31, 2006.

19. As the par ties have stipulated, Respondent continued

to deny in th e interview before PCSO's Inspections Bureau , as

she had done in the course of the criminal investigation, that

she had given Robaxin to Richardson on the morning of July 31,

2006.

20. On February 15 , 2007, PCSO convened an Administrative

Review Board (ARB) in order to review the materials gathered by

the Inspection Bureau and make a recommendation on the level of

discipline, if any, that Respondent and the other individuals

involved should receive.

2 1. The ARB members reviewed the Inspections Bureau file

and sworn statements of the individuals involved, and also had

an opportunity to question each witness about his or her

statement. After deliberating as a group, the ARB recommended

that the charges against Respondent of violating Rule 5.4 and

5.6 should be sustained.

22. All of the supervisors who witnessed or participated

in the events of July 31, 2006, received some level of

discipline as a result of the investigation. Schiavo,

Kalicharan, and B rennan received one - day suspensions for failing

to report Respondent's misconduct , in violation of General Order

3 - 1.2 Rule 4.1 (Reporting Violation of Laws, Ordinances, Rules

or Orders). Richardson, who admitted receiving Robaxin,

received a five - day sus pension and was demoted from his position

of nurse supervisor for violation of Rule 5.4. M a ry Caldwell

was exonerated.

23. On February 16, 2007, Sheriff Jim Coats (Coats)

informed Respondent by memorandum that the ARB had determined

that she violated Rul es 5.4 and 5.6 . Coats also informed

Respondent that the recommended discipline based on the point

values associated with two level five violations ranged from

seven days to termination.

24. On this same day, Coats informed Respondent via a

separate memor andum that he had thoroughly reviewed her case and

determined that termination was the proper level of discipline.

Coats also notified Respondent of her right to appeal the

decision.

25. Respondent formally appealed her termination on

February 21, 2007.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007) , and the Pinellas County Sheriff's Civil

S ervice Act .

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

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

Florida (1989) , as amended by Chapter 90 - 395, Laws of Florida

(1990) .

28. Chapter 89 - 404, Section 2, Laws of Florida, gives

authority to PCSO to adopt rules necessary to administer the

Civil Service Act. PCSO has adopted General Order 3 - 1, which

contains standards of conduct to which all employees of PCSO

must adhere.

29. General Order 3 - 1.1 sets forth the relevant standards

of conduct in the present matter. Rule 5.4 of this Order

provides:

Duties and Responsibilities -- The primary

responsibility of all Sheriff's Office

personnel is to be aware of their assigned

duties and responsibilities. All personnel

are always subject to duty and are

responsible f or taking prompt and effective

action within the scope of their duties and

abilities whenever required.

30. Rule 5.6 of the same Order provides:

Truthfulness -- Members are required to be

truthful at all times when acting in an

o fficial capacity, whether under oath or

not, such as when offering testimony in

legal proceedings and administrative

investigations. This includes a prohibition

against deliberate or intentional omissions

or misrepresentation of material fact.

31. Unles s 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). As

such, Petitioner has the burden to establish the allegations

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

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

1998).

32. Based on the combined testimony of Richardson,

Caldwell, Schiavo, and Kalichar an, Petitioner has proven, by a

preponderance of the evidence, that Respondent requested Robaxin

from Caldwell on the morning of July 31, 2006, which Caldwell

delivered to her , and Respondent gave it to Richardson after

receiving it.

33. Respondent's deni als relating to calling Caldwell and

about giving Robaxin to Richardson are not credible in light of

the testimony from these witnesses about the events of July 31,

2006. Respondent failed to produce any witness to rebut the

combined testimony of Kalichar an, Caldwell, Richardson, and

Schiavo.

34. Notably, Richardson himself, on penalty of suspension

and demotion, admitted that he received Robaxin on July 31,

2006, delivered by Caldwell. Significantly, Respondent (who was

handed the Robaxin by Caldwell) d enied the entire event and

failed to offer any alternative explanation as to how Richardson

obtained Robaxin on July 31, 2006, when it was undisputed that

Robaxin was not stored in the nurse supervisors' office.

35. Respondent testified about Schiavo's al leged

retaliatory motives in reporting the incident to Watkins and

allegedly being dishonest about what happened on July 31, 2006.

However, even if Schiavo and Respondent had a somewhat strained

relationship, nothing negates nor calls into question the

ve racity of Caldwell's testimony that Respondent called her and

asked her to bring Robaxin to the nurse supervisors' office. In

fact, Caldwell went so far as to testify that Respondent had

been her favorite supervisor. Nor does Respondent's aspersions

towa rd Schiavo negate Kalicharan's testimony (which is

consistent with Caldwell's and Schiavo's) that Respondent

requested Robaxin from Caldwell, was handed Robaxin by Caldwell,

and th en gav e it to Richardson. Indeed, because Caldwell has no

reason to fabrica te a story, having been neither accused of n or

disciplined for her conduct that day, her testimony is the most

credible . It simply makes no sense that Caldwell would

fabricate that Respondent was involved . To the contra r y,

Caldwell's testimony that she p articularly remembers the request

by Respondent because it was so unusual is clearly the more

credible and compelling . Respondent offers no reason for the

disparity in her testimony.

36. Furthermore, Respondent's attempts to undercut

Schiavo's testimony because of minor differences in testimony

from the other witnesses are not persuasive. While Schiavo was

the only witness that testified about certain details before

Respondent's call to Caldwell , t he issue at ha n d is whether

Respondent physically gave Ro baxin to Richardson. This pre - call

testimony, even if disputed, does nothing to undercut the

observations and testimony of the other witnesses about the

stipulated issue.

37. It is not surprising that four witnesses do not have

identical recall of the ev ents of July 31, 2006. However,

nothing in Schiavo's testimony is inconsistent with the

testimony of the other witnesses that collectively demonstrate

that Respondent requested Robaxin from Caldwell and then gave it

to Richardson. Indeed, it is undispute d that Richardson

received Robaxin from one of those nurses in that room that

morning. No testimony from any witness supports any other

person placing the order or giv ing of the Robaxin but

Respondent. Even Respondent does not identify anyone else as

the person placing order and giving the Robaxin -- only that "it

was not me."

3 8 . Richardson's testimony (on penalty of suspension and

demotion) about receiving Robaxin, though lacking in detail , due

to the fact that he was focused on his back pain rather th an his

surroundings, undercuts Respondent's denial of the entire event

and is consistent with the testimony of Kalicharan, Schiavo, and

Caldwell. Similarly, Brennan's testimony that he has no

recollection of the events of that morning fails to support

Res pondent.

3 9 . In summary, Respondent has failed to provide any

evidence or testimony, other than her own, to bolster her

argument or to discredit the testimony of the other witnesses.

40 . Because the parties have narrowed the issue for

consideration to th e factual question of whether Respondent

provided Robaxin to Richardson on July 31, 2006, and stipulated

that such action constitutes a violation of Respondent's duties

and responsibilities under Rule 5.4, and because it is found

that she engaged in the co nduct of which she is accused,

Respondent violated this rule.

4 1 . Furthermore, the parties have stipulated that at all

stages of the investigation into her actions Respondent denied

providing Robaxin to Richardson.

4 2 . The parties have further stipulated that, if this

tribunal fin d s that Respondent provided Robaxin to Richardson,

Respondent was necessarily untruthful in the course of PCSO's

investigation and that such untruthfulness constitutes a

violation of Rule 5.6.

43. As such, because Petitioner sat isfied its burden of

proving that Respondent provided Robaxin to Richardson, and

because there is no dispute as to Respondent's denials about

engaging in this behavior, Petitioner has also satisfied its

burden of demonstrating that Respondent was less than truthful

in the course of PCSO's investigation in violation of Rule 5.6.

44. In view of the seriousness of the violations,

progressive discipline is not warranted, and termination is the

appropriate penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of the alleged violations and terminating her

employment.

DONE AND ENTERED this 24th day of October , 2007 , in

Tallahassee, Leon County, Florida .

S

DANIEL M. KILBRIDE

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of October , 2007 .

COPIES FURNISHED :

Matthew P. Farmer, Esquire

Farmer & Fitzgerald, P.A.

708 East Jackson Street

Tampa, Florida 33602

Benjamin R. Welling , Esquire

Ford & Harrison LLP

101 East Kennedy Boulevard , Suite 900

Tampa, Florida 33602 - 5133

William C. Faulkner

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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.