08-004824 Pinellas County Sheriff`s Civil Service Board vs. Christopher Hamilton Status: Closed Recommended Order on Monday, February 23, 2009.

Summary: The employment of a deputy, who is a three-time chronic offender, should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF’S )

OFFICE, )

)

Petitioner, )

)

vs. ) Case Nos. 08-4823

) 08-4824

CHRISTOPHER HAMILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of these cases on January 12, 2009, in Largo,

Florida, for the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Pinellas County Sheriff’s Office

Post Office Drawer 2500

Largo, Florida 33779-2500

For Respondent: Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue presented is whether Pinellas County Sheriff’s

Office (PCSO or Petitioner) properly terminated Christopher

Hamilton (Respondent) from his employment as a deputy sheriff

for engaging in conduct prohibited in Chapter 89-404, Laws of

Florida (the Civil Service Act), and Petitioner's General Order

Section 3-1.3, Rule and Regulations 3.4(d) and 5.21, and General

Order Section 3-1.4, Rule and Regulation 2.17.

PRELIMINARY STATEMENT

On September 12, 2008, Petitioner determined that

Respondent engaged in prohibited conduct and terminated

Respondent’s employment as a deputy sheriff. Respondent timely

requested an administrative hearing, and Petitioner referred the

matter to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted nine exhibits for admission into

evidence. Respondent testified and submitted five exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one-volume Transcript of the

hearing filed with DOAH on January 26, 2009. Petitioner and

Respondent timely filed their respective Proposed Recommended

Orders on February 4, 2009.

FINDINGS OF FACT

1. Petitioner is responsible for providing law enforcement

and corrections in Pinellas County, Florida. At all times

pertinent to these cases, Petitioner employed Respondent as a

deputy sheriff.

2. Respondent does not dispute that his conduct violated

Petitioner’s rules and regulations. Respondent alleges that the

penalty of termination is excessive, inconsistent with the

progressive discipline policy, and, therefore, disparate.

3. General Order 3-1.3, Rule and Regulation 3.4(d),

relates to “Performance of Duty.” The cited provisions require

that “All members will be efficient and effective in their

assigned duties, performing them in a competent, proficient and

capable manner.” For convenience, the cited provisions are

referred to as Rule 3.4(d).

4. The evidence shows that from March 2004 through

August 8, 2008, Respondent demonstrated a pattern and practice

of violating Rule 3.4(d). The individual violations are

undisputed, and it is undisputed that the violations arose from

Respondent’s inability to complete required reports, to do so in

a timely manner, and to be punctual in attendance. It is also

undisputed that the violations arose from events in Respondent’s

personal life, which included a divorce and custody battle that

precipitated a financial crisis for Respondent and the death of

Respondent’s father. Finally, Respondent acknowledged during

cross-examination that Petitioner attempted to “work with”

Respondent during his personal crises.

5. Petitioner first disciplined Respondent for violating

Rule 3.4(d) in March 2004. In January 2005, Petitioner issued a

formal reprimand for a second violation. Petitioner issued a

second formal reprimand for the third violation in

February 2005. In May 2007, Petitioner issued a third formal

reprimand for a fourth violation of Rule 3.4(d).

6. On December 6, 2007, Petitioner issued a written

reprimand to Respondent for a fifth violation of Rule 3.4(d).

On April 10, 2008, Petitioner found Respondent to be a Chronic

Offender, as defined hereinafter, and suspended Respondent for

seven days for violation of Rule 3.4(d). In June of 2008,

Respondent again violated Rule 3.4(d) by failing to complete and

submit reports within the required timeframe.

7. Respondent violated Rule 3.4(d) on May 27, 2008, and

again on June 24, 2008. Petitioner notified Respondent that he

was required to attend a Vehicle Crash Review Board (VCRB) on

May 27, 2008. However, Respondent failed to attend the VCRB.

Petitioner re-scheduled the VCRB for June 24, 2008, and notified

Respondent that he was required to attend that VCRB. Respondent

failed to attend the VCRB on June 24, 2008.

8. General Order 3-1.4, Rule and Regulation 2.17, relates

not be late to work without valid reason or authorization,” The

cited provisions are referred to for convenience as Rule 2.17.

9. Respondent violated Rule 2.17 by being late to work on

February 28 and March 8, 2008. Petitioner disciplined

Respondent for both offenses in a single written reprimand.

Respondent violated Rule 2.17 by being late to work again

sometime between June 18 and July 2, 2008.

10. On or about August 8, 2008, Respondent reported to

work approximately 30 minutes late in violation of Rule 2.17,

and this proceeding began. On September 11, 2008, Petitioner

conducted an Administrative Review Board (ARB) meeting at which

Respondent testified. The ARB concluded that Respondent had

violated Rules 3.4(d) and 2.17 and found Respondent to be a

Chronic Offender of both rules.

11. General Order 3-1.1, Rule and Regulation 5.21

who violates the same rule or regulation three or more times

within an 18-month period. Respondent is a Chronic Offender of

Rules 3.4(d) and 2.17. Respondent violated each rule three or

more times within an 18-month period. The progressive

discipline policy treats Chronic Offender violations as a more

severe “Level Five” violation.

12. Petitioner has issued written guidelines that are

followed during the disciplinary process and are contained

within General Order 10-2. The goal of General Order 10-2 is to

standardize the disciplinary process and make the process fair

and consistent in application. Consistency is important to

ensure fairness for the member being disciplined and for

maintaining accountability throughout the agency.

13. General Order 10-2 sets forth a procedure for

assigning points for sustained violations based on their

severity level. The points range from Level Five to Level One.

Level Five violations result in the most serious discipline.

14. The total of points to be assigned in these cases is

determined by considering Respondent’s prior disciplinary

record. Additional points are assigned for disciplinary

violations within the recent past. Total disciplinary points

are comprised of points for the current offense, plus carryover

points for recent discipline against Respondent.

15. The range of discipline that is appropriate in these

cases is based upon the total number of disciplinary points

accumulated. The highest or most severe discipline applies

because Respondent accumulated more than 100 discipline points.

16. Respondent’s point total in Case No. 08-4823

is 108.3 points. Authorized discipline ranges from a 15-day

suspension to termination of employment. Respondent’s point

total in Case No. 08-4824 is 116 points. Authorized discipline

ranges from a 15-day suspension to termination of employment.

17. Termination of employment is reasonable in this

proceeding. Termination of employment does not impose disparate

discipline on Respondent.

18. From 2005 through the date of the final hearing, nine

members of the PCSO have been disciplined within the same

discipline range as Respondent. Petitioner terminated the

employment of seven of those nine members of the PCSO.

19. Four of Respondent’s exhibits are excerpts of the case

files of other PCSO members charged with violating Rule 5.21 as

was Respondent. In each case, the alleged violation of the

Level Five Chronic Offender rule was based upon repeated

violations of Level Three rules.

20. Respondent’s Exhibits 2 and 3 each show a member who

violated the Level 3 rule, pertaining to abuse of sick leave a

sufficient number of times to be considered a Chronic Offender

in violation of Rule 5.21. In both cases, it was the member’s

first Chronic Offender violation. Authorized discipline ranged

from a suspension to termination of employment. In each case,

the member received the minimum length of suspension, which is

the minimum discipline in General Order 10-2. This is

comparable to and consistent with the seven-day suspension

Petitioner imposed against Respondent for his first violation of

the Chronic Offender rule.

21. The remaining proposed comparator introduced as

Respondent’s Exhibit 1 relates to an agency member disciplined

for being a Chronic Offender based on repeated violations of

Rule 3.4(d). This was the member’s first violation as a Chronic

Offender in Rule 5.21. Like Respondent’s seven-day suspension

for his first offense as a Chronic Offender, the member in

Respondent’s Exhibit 1 received a suspension corresponding to

the bottom of the disciplinary range under the disciplinary

policy.

22. Prior to Respondent, no other agency member had been

found to have violated the Chronic Offender rule a second time.

However, Petitioner’s Exhibit 5 shows that subsequent to

Respondent’s discipline, the member referenced by Respondent’s

Exhibit 2 was disciplined for violating Rule 5.21 a second time.

In similar fashion to Respondent, this member was disciplined as

a Chronic Offender for the second time with respect to

accumulated violations of the same Level Three rule as the first

time he was found to be a Chronic Offender. Like Respondent,

this member received the minimum suspension for the first

violation of Rule 5.21 and was terminated for the second.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction of the subject matter and the

parties to this proceeding. The parties received adequate

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

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

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

Petitioner must show by a preponderance of the evidence that

termination of employment is a reasonable penalty for the

undisputed violations. Grice v. City of Kissimmee , 697 So. 2d

186 (Fla. 5th DCA 1997); MacNeill v. Pinellas County School

Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Netz v. Jacksonville

Sheriff’s Office , 668 So. 2d 235 (Fla. 1st DCA 1996).

Petitioner satisfied its burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner issue a final order terminating

the employment of Respondent.

DONE AND ENTERED this 23rd day of February, 2009, 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 23rd day of February, 2009.

COPIES FURNISHED :

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

Sherwood S. Coleman, Esquire

Pinellas County Sheriff’s Office

Post Office Drawer 2500

Largo, Florida 33779-2500

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.