08-001520 Pinellas County Sheriff`s Office vs. Patrick Milewsky Status: Closed Recommended Order on Monday, December 22, 2008.

Summary: Respondent should be suspended without pay and reinstated to his position of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Petitioner, )

)

vs. ) Case No. 08-1520

)

PATRICK MILEWSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on September 30 and October 1, 2008, in Largo,

Florida.

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Shannon R. Kennedy, Esquire

Pinellas County Sheriff's Office

Office of the General Counsel

10750 Ulmerton Road

Largo, Florida 33778

For Respondent: Larry Sandefer, Esquire

Sandefer & Murtha, P.A.

711 South Belcher Road

Clearwater, Florida 33764

STATEMENT OF THE ISSUES

The issues are whether Petitioner should terminate

Respondent from his employment as a deputy sheriff for allegedly

engaging in prohibited conduct pursuant to Chapter 89-404, Laws

of Florida, as amended by Chapter 90-395, Section 6,

Subsection 4, Laws of Florida (the Civil Service Act), and

Petitioner's General Order Section 3-1.1, Rule and Regulation

5.2--relating to loyalty, Rule and Regulation 5.4--relating to

duties and responsibilities, and Rule and Regulation 5.6--

relating to truthfulness; General Order Section 3-1.3, Rule and

Regulation 3.20--relating to reporting procedures for the use of

force; and General Order 3-2--relating to ethical requirements.

PRELIMINARY STATEMENT

On March 14, 2008, Petitioner determined that Respondent

engaged in prohibited conduct and terminated Respondent’s

employment. Respondent timely requested an administrative

hearing, and Respondent referred the matter to DOAH to conduct

the hearing.

At the hearing, Petitioner presented the testimony of

12 witnesses and submitted 14 exhibits and one supplemental

exhibit for admission into evidence. Respondent testified,

presented the testimony of four other witnesses, and submitted

four exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the three-volume Transcript of

the hearing filed with DOAH on November 4, 2008. Petitioner and

Respondent timely filed their respective Proposed Recommended

Orders on November 17 and 14, 2008.

FINDINGS OF FACT

1. Petitioner is the Sheriff of Pinellas County and a

constitutional officer described in Article VIII, Section 1,

Florida Constitution. From sometime in 1989 until the

termination of Respondent’s employment on March 14, 2008,

Petitioner employed Respondent as a deputy sheriff in the

Pinellas County Sheriff’s Office (the PCSO). Respondent was

last assigned to the courthouse security division of the PCSO.

2. On Saturday, November 3, 2007, Respondent was off-duty

and volunteering as one of a number of parents who were

supervising several high school bands that were practicing at

Clearwater High School (CHS). Three juvenile males on bicycles

approached the band practice area. Respondent yelled at them to

stop, but did not identify himself as a deputy sheriff. One

juvenile stopped. The other two juveniles ignored the commands

and proceeded toward the Tarpon Springs Band. One of the riders

wore a back pack with a baseball bat attached to the pack.

3. Respondent reasonably believed that the juveniles, who

were approximately 16 and 17 years old, 1 presented an imminent

danger of running into and potentially injuring members of the

nearby Tarpon Springs Band. Respondent ran after the juvenile

with a bat attached to his pack, grabbed the bat, and separated

the juvenile from the moving bicycle. The second juvenile

stopped at the point of separation.

4. The juvenile with the baseball bat struck Respondent

with his fist, and Respondent delivered a knee-spike 2 to the mid-

section of the juvenile. The knee-spike disabled the juvenile.

The second juvenile was preparing to strike Respondent, when

another parent pulled that juvenile away.

5. Petitioner notified Respondent of the charges against

him in a memorandum dated March 14, 2008 (the charging

document). In relevant part, the charging document alleges in a

paragraph entitled “Synopsis” that, during the altercation,

Respondent failed to act within the scope of his

responsibilities as a deputy sheriff. If that allegation were

properly construed to allege that Respondent used excessive

force, the fact-finder finds that a preponderance of evidence

does not support a finding that Respondent is guilty of that

charge of misconduct.

6. Respondent acted reasonably during the altercation.

Respondent used reasonable force to protect band members from

harm, and Respondent used reasonable force to defend himself

from a juvenile. The exigencies of the moment did not afford

time for Respondent to disclose his employment with the PCSO

before taking action he reasonably believed to be necessary to

protect members of the Tarpon Springs Band.

7. Respondent cooperated with the police investigation at

CHS. CHS is located within the jurisdiction of both the PCSO

and the Clearwater Police Department. The Clearwater Police

Department responded to the scene and conducted an

investigation. The investigation was documented in Clearwater

Police Report No. CW07-33468 (the police report).

8. Another allegation in the synopsis of the charging

document is that Respondent was untruthful by deliberately or

intentionally omitting or misrepresenting material facts

outlining his involvement in the altercation, including a

memorandum Petitioner authored on November 5, 2007. The fact-

finder finds that a preponderance of evidence does not support a

finding that Respondent is guilty of this charge of misconduct.

9. It is undisputed that Respondent telephoned

Corporal Victor Griffin, Respondent’s immediate supervisor on

the evening of November 3, 2007, and reported the altercation in

detail, including the attack by the juvenile and Respondent’s

use of a knee-spike. Corporal Griffin instructed Respondent to

inform Sergeant Edward Marshall, the next in command.

Respondent telephoned Sergeant Marshall that night and informed

him of the use of force and the details of the incident.

10. At the hearing, Sergeant Marshall had little or no

recall of the details of the conversation with Respondent on

November 3, 2007. The only credible and persuasive testimony

concerning that conversation is the testimony of Respondent.

11. On the evening of November 3, 2007, Sergeant Marshall

instructed Respondent to write a memorandum describing the

incident and Respondent’s use of force when Respondent returned

to work on Monday, November 5, 2007. Sergeant Marshall

instructed Respondent to either reference the police report in

the memorandum or attach a copy of the police report to the

memorandum.

12. Respondent drafted a memorandum on November 5, 2007.

The memorandum referred to the police report, and Respondent

submitted the memorandum to his supervisor.

13. The police report included a handwritten, detailed

description by Respondent of the use of force in the

altercation. Petitioner had reasonable access to the police

report. The Clearwater Police Department and the PCSO, by

agreement, utilize a computerized joint records management

system identified in the record as ACISS.

14. Another allegation in the synopsis of the charging

document is that Respondent failed to document the use of force,

as required by agency policy. The fact-finder finds that a

preponderance of the evidence does not support a finding that

Respondent is guilty of this charge of misconduct.

15. A complete description of the altercation and use of

force was attached to the police report. That information fully

documented the use of force and was available to Petitioner

through ACISS. 3

16. Another allegation in the synopsis of the charging

document is that Respondent compromised the criminal

investigation of the altercation by “accessing unauthorized

This allegation is based in substantial part on two undisputed

facts that occurred on or about November 5, 2007. First,

Respondent obtained a copy of the police report and discovered

that the police report listed Respondent as a “victim/suspect.”

Suspects are not entitled to a copy of a police report, but law

enforcement officers may access the report. Second, Respondent

persuaded the property department to change the status of brass

knuckles found in a back pack at the scene of the altercation

from being held for destruction to being held as evidence, so

that the brass knuckles would not be destroyed.

17. The fact-finder finds that a preponderance of the

evidence does not support a finding that the undisputed actions

of Respondent compromised the criminal investigation by

accessing unauthorized information and intervening into an

investigation in which Respondent was listed in the police

report as a suspect. The undisputed actions of Respondent were

consistent with the actions of the Clearwater Police Department,

and neither action by Respondent compromised the investigation.

18. The investigating officer for the Clearwater Police

Department was off-duty on Monday and Tuesday, and she did not

return to work until Wednesday, November 7, 2007. When the

investigating officer returned to work, her sergeant instructed

her to change the police report to list Respondent as a law

enforcement officer, to delete his address from the report, and

to change the designation of Respondent from a “victim/suspect” 4

to a “victim” before finalizing the report. The investigating

officer made those changes to the police report by computer

entries on November 7, 2007, and those changes were available to

the PCSO through ACISS.

19. The sergeant also instructed the investigating officer

to change the status of the brass knuckles from being held for

destruction to being held as evidence, so that they would not be

destroyed. The investigating officer contacted the property

department of the PCSO to change the status of the brass

knuckles to that of evidence and discovered the property

department had already made that change at Respondent’s request.

20. Respondent was entitled to a copy of the report

because he was a law enforcement officer and was incorrectly

listed on the report as a suspect. The actions of Respondent in

changing the status of the brass knuckles so that they were

listed as evidence was consistent with the actions of the

Clearwater Police Department.

21. Respondent did nothing on November 5, 2007, that the

Clearwater Police Department did not do on November 7, 2007. If

the investigating officer were to have returned to work on

Monday, November 5, 2007, it is reasonable to conclude that the

Clearwater Police Department would have provided a copy of the

police report to Respondent, because Respondent would not have

been listed as a suspect, and the Department would have changed

the status of the brass knuckles so that they were being held as

evidence. The investigating officer and her sergeant concluded

the altercation was a matter of mutual combat and did not refer

the case for prosecution by the state attorney.

22. The nascence of the charges against Respondent emerged

from two events. First, the mother of the two juveniles filed a

complaint of excessive force against the PCSO. Second, when the

investigating officer discovered that Respondent had already

persuaded the property department to change the status of the

brass knuckles, so that they would not be destroyed, the

Clearwater Police Department complained to the PCSO about a

deputy sheriff allegedly interfering with evidence. As a

result, Petitioner initiated an administrative investigation

that led to this proceeding.

23. The penultimate allegation in the synopsis of the

charging document is that Respondent provided confidential

information regarding an open criminal case to another suspect.

It is undisputed that when Respondent discovered on November 5,

2007, that he was listed as a suspect in the police report,

Respondent told the parent that had prevented the second

juvenile from attacking Respondent that the parent was also

listed in the report as a suspect.

24. The disclosure by Respondent was immaterial and had no

impact on a pending criminal investigation. The Clearwater

Police Department classified the altercation as mutual combat

and did not refer the case for prosecution.

25. The final allegation in the synopsis of the charging

document is that Respondent failed to advise his supervisors of

material facts regarding his “involvement in the ongoing . . .

took. The distinction, if any, between “involvement in the

ongoing investigation” and “subsequent actions” is unclear to

the fact-finder because the charges deal with Respondent’s

actions during a pending investigation. The charges of

misconduct do not address Respondent’s “subsequent actions”

after the investigation was completed and case was closed.

26. The investigating officer did not inform Respondent

when she responded to the scene on November 3, 2007, that she

was listing Respondent as a suspect. She did not decide to list

Respondent as a suspect until she prepared her report that

evening, long after Respondent had completed his written report

that was included with the police report and had left the scene.

27. Respondent did not learn that he was a suspect until

Respondent obtained a copy of the police report on November 5,

2007. After obtaining a copy of the police report, Respondent

talked to Lieutenant Rachel Hughes of the Courthouse Security

Division at the PCSO and another of Respondent’s supervisors.

28. Significant variation exists in the separate accounts

of the conversation between Respondent and Lieutenant Hughes.

The testimony of Lieutenant Hughes is inconsistent, self-

contradictory, and less than credible and persuasive. The only

credible and persuasive testimony concerning the conversation is

the testimony of Respondent.

29. During the conversation between Respondent and

Lieutenant Hughes, Respondent expressed his displeasure at being

listed in the police report as a suspect, stated that he would

like to complain to someone at the Clearwater Police Department,

and asked if Lieutenant Hughes knew anyone there. Lieutenant

Hughes suggested that Lieutenant James Steffens at the

Clearwater Police Department is a “good guy.”

30. Before contacting Lieutenant Steffens, Respondent

called the property department and identified himself as

“Milewsky from over at the courthouse.” Respondent did not

disclose that he was a suspect in the case involving the brass

knuckles. Respondent knew or should have known that the

property department employee reasonably believed that the call

and request was related to official business.

31. Lieutenant Larry Smith was in charge of the property

department at the time and testified at the hearing. The

property department would not have enhanced the status of the

brass knuckles at the request of someone who was listed as a

suspect in the police report.

32. The failure to disclose to the property department

that Respondent was a suspect in the case is not alleged in the

charging document, and the ALJ cannot find Respondent guilty of

a charge not alleged in the charging document. The relevant

language in the charging document is confined to an allegation

that Respondent failed to advise his “supervisors” of his

“involvement in the ongoing . . . investigation” and his

“subsequent actions.” Those assigned to the property department

are not “supervisors” of Respondent.

33. Respondent next telephoned Lieutenant Steffens of the

Clearwater Police Department to discuss the fact that Respondent

was listed as a suspect in the police report. Respondent and

Lieutenant Steffens disagree over material details of the

conversation, including the issue of whether Respondent

requested Lieutenant Steffens to change the police report to

delete Respondent’s name as a suspect.

34. The fact-finder resolves the disparity in testimony

between Respondent and Lieutenant Steffens against Respondent.

The testimony of Lieutenant Steffens is the only credible and

persuasive testimony concerning the conversation between the two

men.

35. Respondent did not want to remain listed as a suspect,

but denied that the purpose of his call to Lieutenant Steffens

was to have the report changed to delete his status as a

suspect. Respondent insisted that his telephone call to

Lieutenant Steffens was “unrelated” to changing his designation

as a suspect.

36. The testimony of Lieutenant Steffens was plausible,

credible, and persuasive. Lieutenant Steffens recalled that

Respondent advised Lieutenant Steffens that a Clearwater Police

Department investigation contained erroneous information, and

Respondent sought to get the error corrected “as soon as

possible.” After emphasizing Respondent’s seniority and the

lack of experience of the investigating officer, who was a

rookie, Respondent stated that he did not want to make a

complaint against the investigating officer, but just wanted the

report changed so that Respondent was listed solely as a victim

in the report. Respondent asked Lieutenant Steffens if they

could get that done as quickly as possible.

37. Lieutenant Steffens sent a message by email in this

regard to Sergeant Wilton Lee, the supervisor for the

investigating officer, asking Sergeant Lee to telephone

Respondent. Sergeant Lee did not return to work until

Wednesday, November 7, 2007.

38. Before Lieutenant Steffens heard from Sergeant Lee,

Lieutenant Steffens received a voice mail from Respondent

inquiring as to why nothing had been done yet on the case.

Lieutenant Steffens also received a telephone call from another

suspect. Lieutenant Steffens telephoned Sergeant Lee directly

about the inquiries.

39. When Sergeant Lee reported to work on November 7,

2007, the police report was waiting for his approval.

Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be

a deputy sheriff, and agreed that Respondent should not be

listed in the police report as a suspect.

40. Respondent failed to advise his supervisors of two

forms of involvement in the investigation. First, Respondent

failed to advise his supervisors of his involvement in the

enhancement of the brass knuckles from that of waiting for

destruction to that of evidence. Second, Respondent failed to

advise his supervisors of his efforts to change the police

report to delete his name as a suspect.

41. A preponderance of the evidence supports a finding

that the failures described in the preceding paragraph violate

requirements for loyalty and truthfulness. Those requirements

are described in General Order 3-1.1 and Rules and

Regulations 5.2 and 5.6.

42. The Progressive Discipline Worksheet assigns

75 Progressive Discipline Points for violations of all of the

charges in the charging document. However, a preponderance of

the evidence supports a finding that Respondent is guilty of

violating only two of the six charges of misconduct described in

the synopsis in the charging document. The Worksheet does not

delineate the points assigned to each charge, and Petitioner has

not promulgated intelligible standards that enable the fact-

finder to determine the points that should be allocated to the

two violations committed by Respondent.

43. No aggravating factors are evidenced in this

proceeding. Respondent has no prior discipline during his

19 years of experience with the PCSO. The culpable actions of

Respondent did not result in physical or financial harm to a

member of the public or members of either the PCSO or the

Clearwater Police Department. The culpable actions of

Respondent did not compromise an ongoing criminal investigation.

44. A preponderance of the evidence does not show that

termination of employment is a reasonable penalty.

Untruthfulness and disloyalty are serious offenses but, absent

any aggravating circumstances, a reasonable penalty is

suspension without pay beginning on March 14, 2008, and

reinstatement to the former position of employment immediately

upon the entry of a final order.

CONCLUSIONS OF LAW

45. DOAH has jurisdiction over the subject matter of and

the parties to this action. The parties received adequate

notice of the administrative hearing. §§ 120.57(1) and

120.68(8), Fla. Stat. (2008).

46. 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

penalty. However, the party asserting the affirmative of any

issue bears the burden of proving the assertion. 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. 1st DCA 1977).

47. For reasons stated in the Findings of Fact, a

preponderance of the evidence supports a finding that Respondent

is guilty of violating two of the six charges of misconduct

described in the synopsis of the charging document. A

preponderance of the evidence does not support a finding that

termination of employment is a reasonable penalty under the

circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is,

RECOMMENDED that Petitioner enter a final order adopting

the findings of this Recommended Order; suspending Respondent’s

employment without pay from March 14, 2008, to the date of the

final order; and returning Respondent to his former position of

employment as of the date of the final order.

DONE AND ENTERED this 22nd day of December, 2008, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 2008.

ENDNOTES

1/ The incident occurred on November 3, 2007. One juvenile

would celebrate his 17th birthday on December 4, 2007, and the

second juvenile would celebrate his 16th birthday on January 16,

2008.

2/ One delivers a knee spike to an attacker by bending the

attacker at the waist and raising a knee to the solar plexus

with sufficient force to momentarily deprive the attacker of

sufficient oxygen to breathe.

3/ There is obvious confusion concerning the verbal disclosure

of the use of force on November 3, 2007. The confusion is, in

part, a result of the language of Petitioner’s written orders

and rules and regulations requiring disclosure of the use of

force. The written orders, rules, and regulations assume that

the officer who used force is also the officer preparing a

police report. In this case, Respondent was a victim and did

not prepare the police report.

4/ The parties agree that being listed as a suspect in a police

report creates grave consequences for a law enforcement officer,

but the fact-finder never really understood the extent of those

consequences and cannot articulate them in this Recommended

Order.

COPIES FURNISHED :

Sherwood S. Coleman, Esquire

Shannon R. Kennedy, Esquire

Pinellas County Sheriff's Office

Office of the General Counsel

10750 Ulmerton Road

Largo, Florida 33778

Larry Sandefer, Esquire

Sandefer & Murtha, P.A.

711 South Belcher Road

Clearwater, Florida 33764

James L. Bennett, County Attorney

Office of County Attorney

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.