07-003719 Pinellas County Sheriff`s Office vs. John Bradshaw Status: Closed Recommended Order on Friday, April 18, 2008.

Summary: Respondent was shown to have violated a regulation requiring exercise of due regard for the safety of all persons when, during a pursuit, he did not slow down sufficiently when entering an intersection on a red light, which resulted in a crash.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Petitioner, )

)

vs. ) Case No. 07-3719

)

JOHN BRADSHAW, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on January 31,

2008, in Largo, Florida, before Administrative Law Judge Bram D.

E. Canter of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Benjamin R. Welling, Esquire

Ford & Harrison LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

For Respondent: Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondent, Deputy John Bradshaw, engaged in conduct prohibited

by the rules promulgated by Petitioner, Pinellas County

Sheriff’s Office, and, if so, whether the disciplinary action

taken against Deputy Bradshaw was consistent with action taken

against other members of the Sheriff’s Office.

PRELIMINARY STATEMENT

On August 10, 2007, Deputy Bradshaw was charged with

violating two regulations applicable to members of the Sheriff’s

Office when he was involved in a crash that occurred on

September 22, 2006, involving his Sheriff’s Officer cruiser and

a “civilian” vehicle during the pursuit of a fleeing suspect.

On the same date, the Sheriff’s Office imposed disciplinary

action against Deputy Bradshaw of four days suspension without

pay, and informed him of his right to request an appeal to the

Civil Service Board. Deputy Bradshaw timely requested an

appeal, and the matter was referred to DOAH on August 17, 2007,

to assign an Administrative Law Judge, conduct an evidentiary

hearing, and make a recommendation to the Civil Service Board.

At the final hearing, the Sheriff’s Office presented the

testimony of Lt. Timothy Pelella, Sgt. Glen Luben, and Cpt.

Wayne Morris. Petitioner’s Exhibits 1 through 5 were admitted

into evidence. Deputy Bradshaw testified on his own behalf and

also presented the testimony of Sheriff James Coats, Cpt. Teresa

Dioquino, Lt. John Tillia, Cpt. Dean Lachance, Deputy Linda

Willett, Cpt. Nicholas Lazaris, Deputy Traci Longano, Sgt.

Robert D’Andrea, Jr., Deputy Roscoe Dobson, Deputy Jeff Martin,

and Sgt. Lawrence Palombo. Respondent’s Exhibits 1 through 10

were admitted into evidence. Official recognition was taken of

Chapters 89-404 and 90-395, Laws of Florida; and the Order

Granting Respondent’s Motion to Dismiss with Prejudice and

transcript of the motion hearing in Pinellas Lodge No. 43,

Fraternal Order of Police and John Bradshaw v. Pinellas County

Sheriff’s Office , Case No. 07-010513 CI-13, Sixth Jud. Cir. Ct.

(January 16, 2008).

The one-volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times relevant to this case, John Bradshaw was a

deputy employed by the Pinellas County Sheriff’s Office.

The Pursuit

2. On September 22, 2006, one or more deputies were

“staking out” an area along Ulmerton Road in Largo where

burglaries of vehicles had been reported. At about 1:30 a.m., a

suspicious vehicle was observed in the area by Sgt. Lawrence

Palombo. When the driver of the vehicle began to drive

recklessly (traveling southbound in a northbound lane), Sgt.

Palombo decided to make a traffic stop of the vehicle. He

called other deputies for assistance before doing so. When Sgt.

Palombo turned on his flashing lights to make the traffic stop,

the suspicious vehicle slowed, pulled to the right as if to

stop, but then sped away. A pursuit of the vehicle was

immediately initiated.

3. The testimony of the deputies involved in the pursuit

differed as to where the pursuit began, but the exact location

is not material in this case. The pursuit started on 49th

Street somewhere between 110th Avenue and 126th Avenue and

traveled south on 49th Street.

4. Sheriff’s Office regulations limit the number of

Sheriff’s Office cruisers that may participate in a pursuit to

three. The three cruisers involved in this pursuit were driven

by Sgt. Palombo, Deputy Bradshaw and Deputy Jeff Martin.

5. The pursuit reached speeds of 85 or 90 mph. It passed

through a number of intersections along 49th Street that had

traffic lights. At some of these intersections, the traffic

light was red for southbound traffic, but the deputies proceeded

through the intersections on the red lights.

6. As the pursuit approached the intersection of 49th

Street and 38th Avenue, the order in which the pursuing deputies

were aligned behind the suspect vehicle was Sgt. Palombo in the

lead, then Deputy Bradshaw, and Deputy Martin last. Deputy

Bradshaw’s cruiser was a 2005 Crown Victoria 4-door sedan.

7. All the cruisers had their lights flashing. The record

shows that Sgt. Palombo had his siren on. The record does not

show whether the other two deputies in the pursuit were using

their sirens, but it was not a disputed factual issue and it

would be reasonable to infer that all three deputies were using

their sirens.

8. The intersection at 38th Avenue has four southbound

lanes, including a left turn only lane, two through only lanes,

and a far right lane which can be used for through traffic or to

turn right. Sgt. Palombo testified that, as the pursuit neared

the intersection, he saw “vehicles . . . stopped at the

intersection,” and “we came up on cars that were at that

intersection going in the same direction.” These “civilian”

vehicles must have been stopped in the two right lanes because

its was undisputed that Sgt. Palombo was in the left turn lane

and Deputy Bradshaw was in the lane next to Sgt. Palombo, the

leftmost through lane.

9. The suspect vehicle proceeded through the intersection

at 38th Avenue. Sgt. Palombo slowed to a stop in the left turn

lane. He thinks he stopped his cruiser at the “stop bar” or

“maybe in the crosswalk.”

The Crash

10. Grace Umali, driving a 2002 Toyota 4-Runner was

traveling westbound (coming from the deputies’ left) through the

intersection on a green light. Her three-year-old son was also

in the vehicle.

11. Sgt. Palombo, stopped in the left turn lane, saw the

Umali vehicle come from his left, pass in front of him and then

collide with Deputy Bradshaw’s cruiser. A subsequent crash

scene investigation found no pre-crash skid marks, which

indicates that neither driver braked hard before impact.

12. There was no dispute that the collision occurred in

the leftmost, southbound through lane, only about one car length

beyond the “stop bar” where vehicles must stop for a red light.

13. Following the initial impact, Deputy Bradshaw’s

vehicle continued south across the intersection and hit a

traffic light pole at the southwest corner of the intersection.

The cruiser caught fire as a result of the crash. The Umali

vehicle also traveled south across the intersection after

impact, rolled over, and came to rest upside down along the

western curb of 49th Street, beyond Deputy Bradshaw’s cruiser.

Both vehicles were “totaled.”

14. The crash resulted in Deputy Bradshaw suffering a

broken leg and minor cuts and bruises. Ms. Umali and her son

also suffered injuries, but the record does not identify their

injuries.

15. Evidence was presented on the disputed factual issue

of which vehicle struck the other. Deputy Bradshaw contends

that the Umali vehicle struck him, somewhere near his left front

wheel. Deputy Martin, who was 50 to 70 yards behind Deputy

Bradshaw when the crash occurred, said it appeared to him that

the Umali vehicle struck Deputy Bradshaw. However, Deputy Linda

Willett, who was a member of the Major Accident Investigation

Team (MAIT) that responded to the Bradshaw crash, said the crash

scene investigation, primarily the physical evidence of damage

on each vehicle, made her conclude that Deputy Bradshaw struck

the Umali vehicle. She could not recall seeing any damage to

the front of the Umali vehicle. Captain Nicholas Lazaris, the

leader of the MAIT Team, and Lt. Timothy Pellela, another MAIT

Team member, also concluded that Deputy Bradshaw had struck the

Umali vehicle.

16. The parties placed more importance on this factual

dispute then it warranted because the difference between the two

scenarios is a fraction of a second. 1 However, the more

persuasive evidence is from the crash scene investigation –-

indicating that Deputy Bradshaw struck the Umali vehicle --

because the vehicle damage evidence is more objective and

reliable than human memory of split-second events during

stressful circumstances.

The Speed of the Vehicles

17. The most important factual dispute in this case was

how fast Deputy Bradshaw was going when the crash occurred.

Deputy Bradshaw claims he slowed to about 35 mph. Sgt. Palombo

estimated Deputy Bradshaw’s speed was 40 mph. However, at the

hearing , Sgt. Palombo stated in response to a question about how

far Deputy Bradshaw was behind him, “To be honest with you, you

really don’t want me to know the answer to that question.” His

clear meaning was that his attention needed to be elsewhere.

This and other testimony by Sgt. Palombo shows his attention was

directed forward, as would be expected. Therefore, Sgt.

Palombo’s estimate of Deputy Bradshaw’s speed at the moment of

the crash is not reliable.

18. Lt. Pelella was an alternate on the MAIT Team that was

called to respond to the crash. Lt. Pelella was assigned both

on-scene investigation and crash reconstruction duties. In

crash reconstruction, a conservation of linear momentum formula

is used, which takes into account factors such as the point of

impact, the distance the vehicles traveled after impact, their

weight, and drag, to arrive at an estimate of the speed of the

vehicles at the moment of impact. Applying this methodology,

Lt. Pelella estimated that Deputy Bradshaw was traveling at

about 57 mph and Ms. Umali was traveling at about 42 mph when

the collision occurred.

19. Deputy Bradshaw attempted to cast doubt on the

credibility of Lt. Pelella’s estimate of vehicle speeds by

showing that the traffic crash report prepared by Deputy Willett

the day after the crash included the same speeds for the

vehicles, 57 mph and 42 mph, that Lt. Pelella came up with two

months later using the conservation of linear momentum formula.

Deputy Willett testified that she did not come up with the

vehicle speed information for her report; that it had to have

been provided by another member of the MAIT Team. In response

to a leading question from Petitioner’s counsel, the MAIT team

leader, Captain Nicholas Lazaris, agreed that the speeds

indicated in Deputy Willet’s report “were filled in to comport

with Lieutenant Pelella’s accident reconstruction.” The

implication is that Deputy Willett’s report did not include the

vehicle speeds when it was prepared and signed by her, but the

vehicle speeds were put into the report later without changing

the date of the report.

20. The record is left unclear about how the vehicle

speeds came to be in Deputy Willett’s report, but this curious

situation did not rise to the level of proof of some conspiracy

to falsify the report. It also did not cause Lt. Pelella’s

conclusions about the vehicles speeds to be unreliable.

21. Sgt. Glen Luben was another member of the MAIT Team

that responded to the Bradshaw crash. He obtained the Power

Train Control Module from Deputy Bradshaw’s vehicle to extract

some of the data that is automatically recorded when there is a

loss of power. Sgt. Luben testified that the recorded

information indicated that Deputy Bradshaw’s vehicle was going

70.13 mph when his cruiser’s engine stopped. He said this

figure was consistent with the crash reconstruction done by Lt.

Pelella which estimated Deputy Bradshaw’s speed to be 57 mph,

because the conservation of linear momentum formula produces a

“minimum speed.” Sgt. Luben believes 70.13 mph to be the more

likely actual speed that Deputy Bradshaw was traveling at the

moment of impact.

22. Sgt. Palombo thought Ms. Umali was exceeding the speed

limit, which is 35 mph. Lt. Pelella’s estimate that Ms. Umali

was going 42 mph is consistent with Sgt. Palombo’s testimony.

Deputy Martin testified that Ms. Umali was going “[p]robably 55

or 60, just from what little I saw of it.” This testimony by

Deputy Martin, as well as his testimony that the Umali vehicle

struck the cruiser and that Deputy Bradshaw used due care, was

not persuasive. It appeared to be based on Deputy Martin’s

desire to support Deputy Bradshaw rather than an impartial

account of his actual observations.

23. The crash scene photos and other data do not support

Deputy Bradshaw’s claim that he was going only 35 mph at the

time of the crash. The more persuasive evidence puts his speed

in the range established by Lt. Pelella’s crash reconstruction

and Sgt. Luben’s analysis of the Power Train Module from Deputy

Bradshaw’s cruiser, between 57 and 70 mph.

24. Although Deputy Bradshaw denied that he was going 57

mph, he agreed that if he had been going that fast, he would not

have been exercising due care.

Whether Deputy Bradshaw was Wearing His Seatbelt

25. At the final hearing Respondent presented some

evidence to show that Deputy Bradshaw was not wearing his

seatbelt at the time of the crash. Deputy Bradshaw claims he

was wearing his seat belt, but he objected to Petitioner’s

introduction of seat belt evidence because Deputy Bradshaw was

not informed in the charging document that his failure to wear

his set belt was an element of the charges against him. The

August 10, 2006, inter-office memorandum that officially

informed Deputy Bradshaw of the charges against him stated:

Synopsis: While engaged in a high speed

pursuit, you ran a red light at a minimum

speed of 57 miles per hour and collided with

a civilian vehicle which had already entered

the intersection. Serious injuries were

sustained by both drivers and a passenger in

the civilian vehicle.

Similarly, the parties’ Joint Pre-Hearing Stipulation stated

Petitioner’s position as “Respondent was traveling at a speed

which was faster than that at which he could safely clear the

intersection.” Therefore, the Administrative Law Judge

sustained Deputy Bradshaw’s objection and ruled that seat belt

evidence was inadmissible.

Ms. Umali’s Impairment

26. In the course of the post-crash assistance provided to

Ms. Umali and her passenger, it was determined that she was

driving under the influence of alcohol. She was charged and

convicted for misdemeanor DUI.

27. The location of the initial collision means that Ms.

Umali had crossed about 60 percent of the intersection before

the collision, but Deputy Bradshaw had just entered the

intersection. Clearly, Ms. Umali entered the intersection well

before Deputy Bradshaw. The record evidence establishes that

when Ms. Umali got to the intersection, Sgt. Palombo’s cruiser

was stopped at the intersection with its siren on and lights

flashing. Ms. Umali would have seen Sgt. Palombo’s cruiser.

28. Respondent’s Exhibit 7 contains a deputy’s written

notes from his interview with Ms. Umali just after the accident.

Neither Ms. Umali nor the deputy who interviewed her were called

as witnesses. The exhibit was admitted into evidence over a

hearsay objection to show what was considered by the

Administrative Review Board in determining the discipline to

recommend. The exhibit was not admitted for the truth or

accuracy of the statements contained in the exhibit. 2 However,

the hearsay notation that Ms. Umali told the interviewing deputy

that she saw the “cops” and their flashing lights supplements

the non-hearsay evidence that she saw (at least) Sgt. Palombo’s

cruiser.

29. Whether caused by her impairment or another reason,

Ms. Umali did not yield the right-of-way to an emergency vehicle

as the law requires.

30. It is Deputy Bradshaw’s position that Ms. Umali’s

impairment and failure to yield are important facts in

determining whether he used due care under the circumstances.

An unstated implication of his argument is that it was

reasonable for him to expect civilian vehicles approaching or

entering the intersection to yield and, consequently, reasonable

for him to disregard the possibility of a non-yielding vehicle.

31. This argument is inconsistent with Deputy Bradshaw’s

testimony that he did not notice whether the light at 38th

Avenue was red or green, but the color of the light did not

matter to him because he always slows at an intersection to make

sure it is safe to pass through. In other words, he drives

defensively even when he has the right of way.

32. Curiously, no one asked Sgt. Palombo why he stopped in

the left turn lane at 38th Avenue. He said he intended to

continue his pursuit of the suspect vehicle and that, as soon as

the Umali vehicle passed by him, he proceeded through the

intersection and continued the pursuit. It is reasonable to

infer from the record evidence that Sgt. Palombo came to a stop

or near-stop because he saw the Umali vehicle approaching. If

he did not see the Umali vehicle approaching, he would have

merely slowed down, as he did at the other intersections through

which the pursuit had passed. Deputy Bradshaw should have been

alerted by Sgt. Palombo’s action in stopping at the intersection

that there might be oncoming traffic.

33. Petitioner showed by a preponderance of the evidence

that Deputy Bradshaw failed to drive with due regard for the

safety of all persons under the circumstances that existed at

the time of the crash.

The Disciplinary Process

34. Deputy Bradshaw claims that his case was handled

differently than all other disciplinary cases arising from a

crash during a pursuit. The usual procedure followed when there

has been a pursuit that resulted in a crash is that the matter

is reviewed by the Pursuit Review Board and also the Crash

Review Board. Neither of these boards reviewed the Bradshaw

crash. Instead, the crash was investigated by the

Administrative Investigations Division within the Sheriff’s

Office and then presented to the Administrative Review Board to

determine whether discipline against Deputy Bradshaw was

warranted and to make a recommendation for disciplinary action

to Sheriff James Coats.

35. Deputy Bradshaw believes his case was handled

differently because of the concern of Petitioner’s general

counsel about civil liability arising from the collision. This

proposed explanation seems illogical, because an employer

concerned with liability would be expected to assert that its

employee did nothing wrong, not the opposite. A plaintiff would

be encouraged, not discouraged, by Petitioner’s action against

Deputy Bradshaw in this case.

36. Petitioner acknowledges that the procedure it followed

in the Bradshaw matter was atypical, but that it was justified

by the atypical facts involved. Captain Wayne Morris was

chairman of the Pursuit Review Board which meets monthly to

review pursuits from the previous month. He said the Pursuit

Review Board has an option of referring a matter for an internal

investigation when there is an appearance of possible misconduct

by a deputy. He said the Bradshaw crash was one of several

pursuit cases that was scheduled to come before the board, but

he asked or suggested that it should be investigated by the

Administrative Investigations Division based on “the seriousness

of the crash.” He said that he could not remember a crash that

involved vehicles that were “totaled” or injuries to a “third

party.”

37. Captain Morris said that even though General Order 15-

2 of the Sheriff’s Office states that all pursuits will be

reviewed by the Pursuit Review Board, that is just a guideline

and does not always have to be followed.

38. Captain Dean Lachance, chairman of the Crash Review

Board, said that his board was not the appropriate body to

investigate the Bradshaw matter “because of the level of

discipline that we can levy,” and that if this matter had come

to the board, it would likely have been referred to the

Administrative Investigations Division.

39. Sheriff Coats provided similar testimony that this was

an unusual case in the time that he has been Sheriff and it

warranted a different review.

40. An Administrative Review Board considered the

information compiled by the Administrative Investigations

Division and recommended that Deputy Bradshaw be suspended for

four days. Sheriff Coats accepted the recommendation and

notified Deputy Bradshaw of the disciplinary action on

August 10, 2007. The suspension was served by Deputy Bradshaw

on August 23 through 26, 2007.

41. Deputy Bradshaw made much of the deviation from usual

procedures that occurred in this case, suggesting that it shows

some kind of conspiracy to determine wrongdoing and to impose

harsh discipline. However, the evidence shows that there was a

reasonable perception, shared by several high-ranking officials

in the Sheriff’s Office, that the matter warranted special

attention because (1) it involved unusually extensive property

damage and personal injuries to a deputy and to civilians and

(2) because Deputy Bradshaw might have been at fault.

42. It is natural for a crash under these circumstances to

create heightened concern or interest in the Sheriff’s Office.

Deputy Bradshaw’s claim that the pending lawsuit by Umali

against the Sheriff’s Office caused his discipline to be more

severe than was justified is not supported by the evidence.

Whether the Disciplinary Action was Consistent

43. Deputy Bradshaw showed that the Crash Review Board has

never recommended more than a reprimand, even in cases where a

deputy was involved in two preventable crashes. Deputy Bradshaw

argues that this proves his own discipline was too severe.

However, the evidence presented by Deputy Bradshaw included no

factual details from the other disciplinary cases that could

establish that they involved similar circumstances or otherwise

would warrant similar punishment. The record evidence shows

that there were no previous incidents that could be described as

“similar.”

44. Under the circumstances, Deputy Bradshaw should have

decelerated to a very slow speed or even to a stop to make

certain no vehicle was approaching from the east. The

discipline Deputy Bradshaw received was commensurate with the

degree of his deviation from his duty to drive with due regard

for the safety of all persons. It was neither inconsistent with

prior disciplinary action taken by the Sheriff’s Office against

other members nor unreasonably harsh for the offense that was

proven.

Facts Related to Section 112.532(6), Florida Statutes

45. As discussed more fully in the Conclusions of Law,

Section 112.532(6), Florida Statutes (2006), states that

disciplinary action cannot be taken against any law enforcement

officer in the state for any allegation of misconduct if the

investigation of the allegation is not completed within 180 days

after the date the agency receives notice of the allegation by a

person authorized by the agency to initiate an investigation.

Deputy Bradshaw contends that the investigation of the charges

against him arising from the crash on September 22, 2006, was

not completed within 180 days and, therefore, no disciplinary

action can be taken against him.

46. Captain Teresa Dioquino was in charge of the

Administrative Investigations Division of the Sheriff’s Office

when the subject crash occurred. She testified that Deputy

Bradshaw was informed that her division was investigating the

crash on May 21, 2007, through a “Notice of Complaint.” She

said that was also the date that her division “formally” began

its investigation. If May 21, 2007, was the operative beginning

date, the Sheriff’s Office met the 180-day requirement.

47. However, the operative beginning date to calculate the

180-day requirement, as stated in the statute, is “the date the

agency received notice of the alleged misconduct.” It is not

the date that an investigation is formally initiated. Deputy

Bradshaw’s speed going through the intersection was the

fundamental factual basis for his alleged misconduct in this

case. Therefore, the date when the Sheriff’s office received

notice of Deputy Bradshaw’s speed would be the operative

beginning date to calculate compliance with the 180—day

requirement.

48. Petitioner argues that it did not start its

investigation of Deputy Bradshaw before May 21, 2007, because it

was waiting for the results of Sgt. Luben’s analysis of the

Power Train Control Module from Deputy Bradshaw’s cruiser, which

was completed in May 2007. Petitioner essentially argues that

the completion of Sgt. Luben’s analysis was a necessary

prerequisite for the Sheriff’s Office to be on notice of the

“allegation of misconduct” regarding Deputy Bradshaw.

49. However, Sgt. Luben testified that he did not discover

until January 2007, that the Power Train Control Module even

existed in the 2005 Crown Victoria. In other words, when the

Sheriff’s Office was informed on December 13, 2006, that Deputy

Bradshaw was traveling at 57 mph, based on Lt. Pelella’s crash

reconstruction report, it had no reason to think Sgt. Luben was

going to come up with another estimate of Deputy Bradshaw’s

speed from his analysis of the Power Train Control Module. Once

Lt. Pelella’s 57 mph estimate was reported, Sgt. Luben’s

subsequent analysis became just a part of the investigation of

the alleged misconduct that had to be completed within 180 days.

Furthermore, the fact that the Bradshaw crash never went to the

Pursuit Review Board or the Crash Review Board during the period

from December 2006 to May 2007 indicates a continuing assumption

that the Bradshaw crash warranted an investigation of possible

misconduct.

50. Using December 13, 2006, as the date the Sheriff’s

Office received notice of the alleged misconduct of Deputy

Bradshaw, the investigation was not completed within 180 days as

required by Section 112.532(6), Florida Statutes (2006).

Nevertheless, as discussed in the Conclusions of Law that

follow, the exclusive remedy for a violation of the 180-day

requirement is an injunction action in circuit court. The

failure of the Sheriff’s office to comply with the 180-day

requirement cannot be raised as a defense in this administrative

action. 3

CONCLUSIONS OF LAW

51. DOAH has jurisdiction of this case pursuant to Section

120.57(1), Florida Statutes (2007), and Section 8(1)(d), of

Chapter 90-393, Laws of Florida. The latter provision

authorizes the Civil Service Board of Pinellas County to

contract with DOAH to have hearings conducted pursuant to

Chapter 120, Florida Statutes.

52. Petitioner has the burden of proof in this case and

the standard of proof is preponderance of the evidence. Dalem

v. Department of Corrections , 720 So. 2d 575 (Fla 4th DCA 1998).

Whether Disciplinary Action is Barred by Section 112.532(6),

Florida Statutes

53. Part VI of Chapter 112, Florida Statutes, grants

rights to any law enforcement officer in the state related to

the investigation of the officer’s possible misconduct. Section

112.532(6), Florida Statutes (2006), states in relevant part:

(a) Except as provided in this subsection,

no disciplinary action, demotion, or

dismissal shall be undertaken by an agency

against a law enforcement officer or

correctional officer for any act, omission,

or other allegation of misconduct if the

investigation of such allegation is not

completed within 180 days after the date the

agency receives notice of the allegation by

a person authorized by the agency to

initiate an investigation of the misconduct.

In the event that the agency determines that

disciplinary action is appropriate, it shall

complete its investigation and give notice

in writing to the law enforcement officer or

correctional officer of its intent to

proceed with disciplinary action, along with

a proposal of the action sought. Such

notice to the officer shall be provided

within 180 days after the date the agency

received notice of the alleged misconduct.

54. Section 112.534, Florida Statutes (2006), provides

that a law enforcement officer “may apply directly to the

circuit court . . . for an injunction to restrain or enjoin such

violation of the provisions of this part and to compel the

performance of the duties imposed by this part.” Sometime after

Deputy Bradshaw served his suspension, he filed an injunction

action in the circuit court for Pinellas County pursuant to this

statute, arguing that the failure of the Sheriff’s Office to

complete its investigation within 180 days barred any

disciplinary action against him.

55. The circuit court dismissed Deputy Bradshaw’s

injunction action, stating that it lacked authority to grant the

relief requested by Deputy Bradshaw, “to rescind punishment that

he has already served.”

56. Deputy Bradshaw argues that the order of the circuit

court does not affect his ability to raise the 180-day issue in

this administrative proceeding and that it bars any disciplinary

action against him. However, the exclusive remedy for

noncompliance with Section 112.532, Florida Statutes, is an

action in the circuit court for injunctive relief. City of

Miami v. Cosgrove , 516 So. 2d 1125 (Fla. 3d DCA 1987). In

Migliore v. City of Lauderhill , 415 So. 2d 62, 65 (Fla. 4th DCA

1982), the court stated:

This section operates only to immediately

restrain violation of the rights of police

officers by compelling performance of the

duties imposed by Sections 112.531 to

112.533. Thus, where an officer under

investigation is being interrogated without

benefit of counsel, the agency may be

restrained from violating his right to

counsel; if an officer is dismissed without

notice, the agency can be compelled to

provide the proper notice; and, if an

officer is refused review by the complaint

review board, under appropriate

circumstances, the agency can be compelled

to grant such review. [emphasis supplied]

The court could have added: if an officer is not notified of the

charges against him within 180 days from the agency’s receipt of

notice of the allegation of misconduct, the agency can be barred

from attempting to punish the officer. However, noncompliance

with the duties imposed by Section 112.532, Florida Statutes

(2006), is exclusively enforced by injunction ordered by a

circuit court.

Review Pursuant to the Chapter 90-393, Laws of Florida

57. Pursuant to Section 8(3), of Chapter 90-393, Laws of

Florida, the Civil Service Board is to hear appeals arising from

personnel actions, and to:

(a) Determine whether the aggrieved member

engaged in conduct prohibited by . . . a

departmental rule promulgated by the

Sheriff; and

(b) Determine whether the action taken

against the aggrieved member is consistent

with action taken against other members; and

(c) Make findings of fact and state a

conclusion as specified in

subsection (6).

Subsection 6, referred to above, states:

Within 10 days of the conclusion of the

appeals hearing, the Civil Service Board, by

a majority vote shall dispose of the appeal

and shall make findings of fact and state a

conclusion; such findings of fact and

conclusion shall be separately stated and

shall be in writing. Such conclusion shall

either sustain, modify, or not sustain the

action being appealed. Upon a finding that

cause did not exist for a suspension,

demotion, reduction in pay, or dismissal,

the Civil Service Board shall reinstate the

appellant and direct the Sheriff to pay the

appellant for the period of any suspension,

demotion, loss of pay, or dismissal. The

Civil Service Board shall not have the

authority to impose any penalty more severe

than that which formed the basis of the

appeal. Should the Civil Service Board be

unable to reach a majority decision on any

appeal, the personnel action taken shall be

sustained.

58. Petitioner’s General Order 3-1 contains the standards

of conduct which must be followed by all employees of the

Pinellas County Sheriff’s Office. 4 It creates five levels of

violations, Level Five being the most egregious. Deputy

Bradshaw was formally charged with two Level Three violations,

designated 3.3 and 3.4(d). These provisions state:

3.3. Knowledge of, and Obedience to, Laws

and Rules and Regulations – Every deputy is

required to establish and maintain a working

knowledge of all laws and ordinances in the

county. All members shall observe and obey

all General Orders, Standard Operating

Procedures and Rules and Regulations issued

by the Sheriff’s Office. In the event of

improper action or breach of discipline, it

will be assumed the member was familiar with

the applicable law, policy, or procedure.

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.

59. General Order 15-2 establishes guidelines regarding

the operation of Sheriff’s Office during a pursuit, including

the following guidelines in Section 15-2.1(D):

In accordance with Florida State Statute

316.072(5), deputies operating in the

emergency operation/response mode may:

* * *

2. Proceed past a red stop signal or stop

sign, but only after slowing down as may be

necessary for safe operation;

3. Exceed the maximum speed limits so long

as the driver does not endanger life or

property;

* * *

5. The foregoing provisions shall not

relieve the driver from the duty to DRIVE

WITH DUE REGARD FOR THE SAFETY OF ALL

PERSONS , nor shall such provisions protect

the driver from the consequences of his or

her reckless disregard for the safety of

others. [emphasis in original]

60. By a preponderance of the evidence, Petitioner proved

that Deputy Bradshaw violated Section 3.3 (Knowledge of, and

Obedience to, Laws and Rules and Regulations) because Deputy

Bradshaw admitted knowledge of the regulations applicable to

pursuits, including the requirement to drive with due regard for

the safety of all persons, but failed to “obey” this requirement

on September 22, 2006.

61. By a preponderance of the evidence, Petitioner proved

that that Deputy Bradshaw violated Section 3.4 (Performance of

Duty) for failing to perform his duty to exercise due regard for

the safety of all persons.

62. Failing to obey and failing to perform, in the context

of the requirement to drive with due regard for the safety of

all persons, are two ways of stating the same offense. There is

essentially one act of wrongdoing by Deputy Bradshaw.

63. By a preponderance of the evidence, Petitioner proved

that the disciplinary action taken against Deputy Bradshaw was

reasonable and consistent with the disciplinary action taken

against other members of the Sheriff’s Office.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law set

forth above, it is

RECOMMENDED that the Civil Service Board issue an Order

that makes findings of fact that are consistent with those set

forth in this Recommended Order, and contains a conclusion that

(1) Deputy Bradshaw engaged in the prohibited conduct for which

he was charged, and (2) the disciplinary action taken against

him was consistent with action taken against other members of

the Sheriff’s Office.

DONE AND ENTERED this 18th day of April, 2008, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of April, 2008.

ENDNOTES

1 / Using simple arithmetic, it can be deduced that, if the Umali

vehicle were traveling 42 mph (as found by the more persuasive

evidence), it would have traveled about 15 feet in a quarter of

a second.

2 / Respondent’s Exhibits 1 and Petitioner’s Exhibit 5 also

contain hearsay statements which cannot be used to support a

finding of fact. Although hearsay can be used to supplement

otherwise admissible evidence, “supplement” in this context does

not mean that hearsay can be used to establish material facts

for which there is no other evidence.

3 / Deputy Bradshaw asserts that the Sheriff’s Office told the

circuit court that the 180-day requirement could be raised as an

issue in the administrative proceeding, but the Sheriff’s Office

merely stated that the administrative proceeding was the “proper

the same thing as asserting that the administrative proceeding

is the proper place to raise the 180-day issue. Furthermore,

the Sheriff’s Office cannot, through its statements, create

subject matter jurisdiction.

4 / The version of General Order 3-1 admitted into evidence

indicates an effective date of October 13, 2007, after the

incident involved in this case, but Petitioner did not object to

its admission on that basis.

COPIES FURNISHED :

Susan H. Churuti, County Attorney

Office of County Attorney

315 Court Street

Clearwater, Florida 33756

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

Benjamin R. Welling, Esquire

Ford & Harrison LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

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.