09-000702 Pinellas County Sheriff`s Office vs. Robert Haimes Status: Closed Recommended Order on Tuesday, October 6, 2009.

Summary: Petitioner demonstrated that Respondent was absent without leave, knowingly caused false time entries to be made, and failed to properly supervise his subordinates. The demotion to deputy and a ten-day suspension were reasonable disciplinary measures.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Petitioner, )

) Case No. 09-0702

vs. )

)

ROBERT HAIMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal

proceeding before Lawrence P. Stevenson, a duly-designated

Administrative Law Judge, in Largo, Florida, on June 10, 2009.

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Pinellas County Sheriff's Office

Post Office Drawer 2500

Largo, Florida 33779-2500

For Respondent: Jeffrey G. Brown, Esquire

Brown & Doherty, P.A.

450 Carillon Parkway, Suite 120

St. Petersburg, Florida 33716

STATEMENT OF THE ISSUES

At issue in this proceeding is whether the Petitioner,

Pinellas County Sheriff's Office (PCSO or Petitioner), properly

disciplined Respondent Robert Haimes for violations of Chapter

89-404, Laws of Florida, as amended by Chapters 90-395 and 2008-

285, Laws of Florida (the Pinellas County Sheriff's Civil

Service Act), and the General Orders and Rules and Regulations

of the PCSO.

PRELIMINARY STATEMENT

On January 19, 2009, Petitioner determined that Respondent,

then a Sergeant with the PCSO, had violated the Pinellas County

Sheriff's Civil Service Act by violating certain provisions of

the rules, regulations and operating procedures of the PCSO.

The charging document set forth the determinations reached by

Petitioner's Administrative Review Board (ARB) as follows:

You violated Pinellas County Sheriff's

Office General Order, 3-1.1, Rule and

Regulation 5.14c, relating to Conduct

Unbecoming Members of the Agency, Knowingly

making a false entry or cause a false entry

to be made in any official record of the

agency, General Order, 3-1.2, Rule and

Regulation 4.9b, relating to Improper

Conduct by Members of the Agency, Absence

without leave, and General Order, 3-1.3,

Rule and Regulation 3.31g, Improper Conduct

by Members of the Agency, Failure to

properly supervise subordinates.

Synopsis: Between the months of August 2008

through November 2008, you were found to

have left your assigned work duties prior to

the completion of your scheduled work shift.

You admitted that you did not notify your

supervisor that you were leaving work, and

you did not complete the required paperwork

showing you left work prior to completing

the required number of work hours. You

admitted that this absence without leave,

and without notifying your supervisor,

caused false entries to be made. This

occurred on seven (7) dates totaling 23.7

hours.

You admitted that while on duty on two (2)

occasions you went to a relative's house to

watch a televised sporting event for an

extended period of time, neglecting your

supervisory responsibilities. This occurred

on October 22, 2008 for approximately 1 hour

and 20 minutes, and again on October 26,

2008, for approximately 3.5 hours. Based on

these admissions, you failed to properly

supervisor [sic] your subordinates.

Your absence without leave, as well as your

being away from your assigned squad

conducting personal business for extended

periods of time, also constitutes a failure

to properly supervise subordinates.

Disciplinary Points and Recommended

Discipline Range :

Sergeant Haimes was found to be in violation

of one (1) Level five (5) violation, one (1)

Level four (4) violation, and one (1) Level

three (3) violation, resulting in a

cumulative point total of 95. By policy,

this cumulative point total reverts back to

75 points. The recommended discipline range

for 75 points is a ten (10) days suspension

to termination.

Respondent was demoted from the rank of Sergeant to that of

Deputy Sheriff, and was given an 80-hour suspension.

Respondent timely filed a notice of appeal with the PCSO's

Civil Service Board, which referred the matter to the Division

of Administrative Hearings (DOAH) under the contract entered

into pursuant to Section 11, paragraph (8) of the Pinellas

County Sheriff's Civil Service Act as amended. The hearing was

continued once before the final hearing was held on June 10,

2009.

At the hearing, the PCSO presented the testimony of

Lieutenant Dale Jones, Captain Teresa Dioquino, and Sergeant

Michael Holbrook. The PCSO presented the rebuttal testimony of

Sergeant Michael Peasley; Toni Fino, a payroll clerk for the

PCSO; and Lieutenant Timothy Pelella. The deposition testimony

of Sergeant Bruce Hauck was also submitted into evidence. The

PCSO's Exhibits 1 through 8, 18 through 33, and 35 were admitted

into evidence. Respondent testified on his own behalf and

presented the testimony of Grace Haimes, Respondent's wife;

Judith Haimes, Respondent's mother; Corporal Matthew Hilliard;

Sergeant Jeffrey Esterline; Sergeant Nathan Samoranski; retired

Sergeant John Pikramenos; Sergeant Clark Wagner; retired Deputy

John Paul Melton; Deputy Michael Smalley; Corporal Thomas

Hoddinott; Deputy Randy Ream; Deputy James Vickers; and Rosalita

Diana, Respondent's cousin. Respondent's Exhibit 1 was admitted

into evidence.

A two-volume Transcript of the final hearing was filed at

the DOAH on July 8, 2009. On July 9, 2009, the parties filed a

joint motion for extension of the time for filing proposed

recommended orders, which was granted by order issued on July

13, 2009. The order provided that the parties were to file

their proposed recommended orders no later than the close of

business on August 24, 2009. The PCSO filed its proposed

recommended order on August 21, 2009. Respondent's proposed

recommended order was filed at 8:00 a.m. on August 25, 2009,

slightly later than time set forth in the order granting

extension. The PCSO has not objected to the late filing. Both

parties' proposed recommended orders have been carefully

considered in the writing of this recommended order.

Unless otherwise stated, all statutory references are to the

2008 edition of the Florida Statutes. References to the PCSO's

General Orders are to the versions in effect at the time of the

underlying events.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Petitioner is the Sheriff of Pinellas County. The

Sheriff commands the operations of the PCSO and is responsible

for providing law enforcement and corrections services in

Pinellas County, Florida. The Sheriff is authorized to impose

discipline on PCSO employees, in accordance with the Pinellas

County Sheriff's Civil Service Act.

2. At all times relevant to this proceeding, Respondent

was employed by the PCSO as a Sergeant. Respondent worked in

one of three PCSO Statistical Tactical Analytical Response

(STAR) units, elite patrol units that perform special

assignments such as criminal surveillance and security for

presidential visits. The regular hours for Respondent's STAR

unit were from 5:00 p.m. until 3:00 a.m., though the unit's

varied assignments often required that its members work an

irregular schedule.

3. Lieutenant Dale Jones is the evening shift commander in

the patrol division of the PCSO's main office. Lt. Jones

oversees administrative and operational duties for his shift,

including the maintenance of the official attendance records.

When Lt. Jones is off duty, another lieutenant or a sergeant

steps into the role of acting shift commander.

4. On September 30, 2008, acting shift commander Sgt.

Bruce Hauck raised a question with Lt. Jones as to Respondent's

attendance. Sgt. Hauck did not feel comfortable marking

Respondent present for his entire ten hour shift, because

Respondent was not where he was supposed to be when his STAR

unit responded to an emergency situation. Sgt. Hauck checked

the Global Positioning System (GPS) and Computer Assisted

Dispatch (CAD), which record the location of a given patrol car

at all times during its driver's shift. The GPS indicated that

Respondent's car was at his residence for several hours of his

shift. 1 Respondent had given Sgt. Hauck no indication that he

was taking time off on September 30.

5. Lt. Jones looked into the matter when he came to work

the next day. He noted the discrepancy in Respondent's work

hours and consulted his captain, Wayne Morris. Lt. Jones and

Capt. Morris agreed that Lt. Jones should check Respondent's

time entries over a period of time to determine whether

September 30, 2008 represented an isolated instance of

inaccurate accounting or was part of a larger pattern of

discrepancies. Lt. Jones decided to review Respondent's time

records for the entire month of September 2008, with the

assistance of a computer expert regarding the GPS and CAD

records.

6. Lt. Jones found records from several nights in

September that caused him to question whether Respondent had

worked a full shift and/or whether Respondent was in his

assigned patrol area. Respondent had not requested time off on

any of the nights in question.

7. Lt. Jones reported his findings to Captain Morris and

Major Stephen Allen. Major Allen decided that the investigation

should be turned over to the PCSO's Administrative Investigative

Division (AID). Sergeant Michael Holbrook of the AID was

assigned to conduct the investigation.

8. Sgt. Holbrook broadened the temporal scope of the

investigation, with findings that ultimately included dates from

August 20, 2008 through November 2, 2008. In addition to

reviewing the GPS and CAD records, Sgt. Holbrook conducted

interviews with Respondent and other PCSO employees with

knowledge of the incidents in question. Sgt. Holbrook reviewed

the PCSO's in-house e-mail system, Respondent's cell phone

records, the PCSO's payroll and budgeting computer records,

paper attendance logs and calendar books, and data from the PCSO

key card system that records every employee's entrance and exit

from PCSO facilities.

9. Sgt. Holbrook wrote an investigative report, dated

November 6, 2008. The report concluded that there was a

discrepancy of 23.7 hours on seven days between the time

Respondent had been paid for working and the time that he was

demonstrably at work. Sgt. Holbrook testified that he was not

trying to "nitpick" and that Respondent was given the benefit of

every doubt regarding his hours worked. Respondent was given

credit from the time the computer in his patrol car was logged

on until the time it was shut down. 2 Sgt. Holbrook reviewed

Respondent's attendance records for the days adjoining those

showing discrepancies, to make sure that Respondent had not

"flexed" hours on those days.

10. Flex-time is a substitute for paid overtime. PCSO

Personnel Rule 11 describes flex-time as "a scheduling method,

based on operational needs of the Sheriff's Office and managed

by supervisors, which allows members to take time off during

normal duty hours preceding or following approved work outside

of normal duty hours. Such time off will be on an hour off for

hour worked basis." In other words, when a deputy has worked

approved hours outside of his regular shift, he may shorten his

regular shift for that day or may "flex" the time off on another

day during the same pay period. Lt. Jones testified that

deputies are not allowed to adjust their hours on their own.

Flex-time must be approved by the commanding officer, who must

ensure that there is adequate coverage for the shift in

question.

11. The investigative report found that Respondent

appeared to have been paid for 3.7 hours that he did not work on

August 20, 2008; 2.0 hours on September 16, 2008; 3.0 hours on

September 22, 2008; 3.5 hours on September 29, 2008; 8.5 hours

on September 30, 2008; 1.0 hours on October 26, 2008; and 2.0

hours on November 2, 2008.

12. For August 20, 2008, CAD records indicated that

Respondent began his shift at 1017 hours and logged out at 1633

hours. 3 GPS records indicated that Respondent logged on and

logged off of the system at or near his personal residence. Key

card records indicated that Respondent entered the SAB at 1045

hours and at 1523 hours. Cell phone records indicated that

Respondent used the phone at times from 1142 hours and 1615

hours.

13. Sgt. Holbrook testified that he knew that the hours

worked by Respondent did not coincide with his usual shift, but

that he did not know whether the STAR unit had been assigned to

some special detail requiring it to work odd hours.

Sgt. Holbrook relied on the GPS records, which showed that

Respondent worked 3.7 hours less than the ten hours for which he

was paid.

14. Respondent had no firm recollection of the events of

Wednesday August 20, 2008. He recalled that he had just

returned from a cruise on the previous Sunday morning when he

received a phone call from Lt. Jones telling him that his STAR

unit had to come in early to cover patrol sectors. Respondent

was also sure that his hours had been adjusted to reflect the

change in his shift, but could not speak to the specific date in

question. Respondent firmly denied having knowingly made a

false entry or caused a false entry to be made into an official

PCSO record.

15. On September 16, 2008, Respondent began his shift at

1616 hours. 4 The CAD records showed no log-off time. GPS

records indicated that Respondent started at 1616 hours and

ended at 2209 hours. Respondent also attended a two-hour

training class on this date, making the cumulative total of his

training and working time eight hours. Respondent was paid for

a full ten hour shift, leaving a two hour shortfall. Key card

records indicated that Respondent entered the SAB six times

between 1531 and 2004 hours. Cell phone records indicated that

Respondent used the phone at times between 0916 to 2244 hours.

16. Respondent again had no clear recollection of why his

hours reflected a two hour shortfall. At about this time, he

was experiencing problems with his patrol car's computer, which

he believed might explain some of the discrepancy. Respondent

also stated that during this period he often came into the

office early to talk with members of the Criminal Investigations

Division (CID) in an effort to maintain open communications

between CID and his STAR unit. As with all of the other dates

in question, Respondent was adamant that he did not

intentionally falsify his time entries or attempt to be paid for

time not worked. Respondent believed that he must have flexed

the two hours on some other date, because such was the only

explanation for the shortfall.

17. For September 22, 2008, GPS records indicated that

Respondent started his shift at 1326 hours and ended his shift

at 2024 hours. He started and ended the shift at or near his

residence. Cell phone records indicated that Respondent used

the phone at times between 1332 hours and 2147 hours.

Respondent was paid for ten hours worked on this date, leaving a

shortfall of three hours.

18. Respondent's shift for September 22 was changed

because his STAR unit was assigned to the Belleview Biltmore

hotel. Respondent's unit was assigned to work security for a

campaign visit by then-candidate Barack Obama on September 23,

2008, and was engaged in a briefing detail at the site of the

visit on the date in question. Respondent testified that his

shift had to have been adjusted by his lieutenant, because as

the sergeant he was not authorized to adjust that much time on

his own. Respondent had no clear recollection to explain the

shortfall in his hours, though again he insisted that he must

have flexed the time because he would never intentionally cut

his hours.

19. For September 29, 2008, Respondent's CAD records

indicated two log-on and log-off times. Respondent first logged

on at 1031 hours and logged of at 1047 hours. He logged on

again at 1730 hours and logged off at 2350 hours. Respondent

was paid for ten hours, and is recorded as working for just over

6.5 hours, leaving a shortfall of roughly 3.5 hours for the

shift.

20. Respondent explained that the shortfall on

September 29 was due to his having taken his patrol vehicle to

Dimmitt Chevrolet in Clearwater for repairs under a recall that

affected all of the Chevrolet Impalas in the PCSO fleet.

Lt. Jones testified that deputies were allowed to take their

cars to the dealer during their working hours, or could take the

cars on their own time and then obtain flex credit for the

hours, provided they did the proper paperwork or notified their

superior of the schedule adjustment.

21. Respondent took his car to the dealership at 1030

hours, which accounted for the morning log in on his CAD

records. Respondent testified that it took him about an hour to

take the car to the dealership, receive service, hand over the

keys, and return to his home. The dealership told him to expect

the car to be ready by 3:00 or 3:30 p.m.

22. Respondent phoned Sergeant Jeffrey Esterline to ask

for a ride back to the dealership at 3:00 p.m. Sgt. Esterline

confirmed that he picked Respondent up at his home and dropped

him off at Dimmitt Chevrolet at 3:00 p.m. on September 29.

Sgt. Esterline had no idea how long Respondent waited at the

dealership after he dropped him off.

23. Respondent testified that the car was not ready when

he arrived at the dealership, and that he had to wait until at

least 5:00 p.m. and possibly as late as 5:30 p.m. While he

waited, Respondent phoned Corporal Matthew Hilliard and asked

him to convey to the commanding officer that Respondent would

not make it for roll call at 5 p.m.

24. Respondent has actually accounted for the time

discrepancy on September 29, 2008, if it is accepted that he

spent one hour dropping off the car and waited roughly two and

one half hours to pick up the car in the afternoon. The only

question as to September 29 is whether Respondent properly

flexed the hours that he spent dealing with the repairs to his

vehicle. The issue of flexing procedure is discussed at

Findings of Fact 43-59, infra .

25. On September 30, 2008, CAD records showed that

Respondent logged on at 1440 hours and logged off at 0732 hours

on October 1, 2008. The vehicle's GPS indicated that Respondent

logged on at 1440 hours and logged off at 1606 hours.

Respondent logged off at or near his home. Based on the GPS

log, Respondent appeared to have worked for only 1.5 hours on

September 30, though he was paid for a full ten hour shift.

26. Respondent conceded that he left work early on

September 30, 2008, due to a situation at home with his wife.

Respondent's wife, Grace Haimes, testified that she had

inadvertently overheard a phone conversation between her husband

and another woman. The conversation made Mrs. Haimes extremely

upset. She phoned Respondent at work to tell him she was

packing a bag, taking their children and leaving him.

27. Respondent told Cpl. Hilliard that he had to go home.

Cpl. Hilliard was left in charge of the STAR unit and Respondent

drove his patrol car to his residence, where he remained for the

rest of his shift. Respondent testified that he had assumed

that Cpl. Hilliard would take care of the "Form 30" paperwork to

document his time off on that date. Respondent conceded that he

did not expressly ask Cpl. Hilliard to complete the Form 30. In

fact, Cpl. Hilliard did not fill out the paperwork for

Respondent's time off on September 30, 2008.

28. For October 22, 2008, GPS data showed that

Respondent's patrol vehicle remained stationary at his parents'

residence between 2119 hours and 2246 hours. The date and time

coincided with Game One of the 2008 World Series, which featured

the Tampa Bay Rays. Respondent and his mother, Judith Haimes,

each testified that Respondent stopped at his parents' home

during the game on October 22, 2008. Sgt. Holbrook did not

include October 22, 2008 in his investigative report and did not

count any work time missed on that date as part of the 23.7

cumulative hours that Respondent is alleged to have been paid

without working.

29. For October 26, 2008, CAD records indicated that

Respondent logged in at 1628 hours. The GPS records from his

patrol vehicle indicated that Respondent's activity ended at or

near his residence at 2351 hours. Respondent submitted a Form

30 for two hours' sick leave on October 26. The two hours' sick

leave plus the roughly seven hours at work equaled nine hours.

Respondent was paid for ten hours' work on October 26, 2008.

30. On October 26, Respondent's subordinates in the STAR

unit had been assigned to special duty under another sergeant.

Respondent was therefore designated as patrol unit "S30B,"

meaning that for that evening he was the road supervisor for

patrol Squad Three. The squad's regular supervisor, Sergeant

Michael Peasley, had been injured and was restricted to light

duty in the office. Prior to the commencement of the shift,

Sgt. Peasley met with Respondent.

31. Respondent testified that Sgt. Peasley told him that

his corporal would be out on the road supervising the squad and

that Sgt. Peasley would be available in the office to take calls

from the deputies on the road. Also, a third sergeant, Joseph

Gerretz, would be working with Squad Three. According to

Respondent, Sgt. Peasley told him, "We've got it covered," and

that Respondent needed only to listen for pursuits or other

emergency situations.

32. Sgt. Peasley testified that he never intended to give

Respondent the impression that he was not needed to supervise

Squad Three. Sgt. Peasley concurred that he said he would

handle administrative matters in the office and that he would be

monitoring his squad, but denied telling Respondent anything

that should have made him think he was relieved of his

operational duties to supervise the squad in the field.

33. In any event, on the evening of October 26, 2008, Game

Four of the World Series was played. From 2004 hours until 2331

hours, Respondent's patrol vehicle was stationary at his

parents' residence. Respondent admitted that he was watching

the World Series game at his parents' house.

34. Respondent testified that he stopped by to see his

parents and somehow got caught up in watching the game. At all

times, Respondent was monitoring his radio and would have heard

if a deputy called S30B. Every ten or fifteen minutes,

Respondent would walk out to his patrol car to check the

computer. Respondent also had his cell phone. Respondent

freely admitted that he should have been out on patrol rather

than watching the game at his parents' house, but denied that he

was absent without leave from his job.

35. Respondent's mother credibly corroborated his

testimony that he constantly monitored his radio and would go

out to the car between innings. In fact, she found Respondent's

radio irritating because it interfered with the sound from the

television. Respondent was wearing his full patrol uniform and

did not sit down while he watched the game.

36. For November 2, 2008, CAD records indicated that

Respondent logged in at 1626 hours and logged out at 0056 hours

on November 3, showing a two hour shortfall from the ten hours

for which Respondent was paid. Because Respondent was taking

several days of vacation after November 2, 2008, he was required

to leave his patrol car at the SAB at the close of his shift.

Respondent asked his second-in-command, Cpl. Hilliard, to give

him a ride home.

37. Both Respondent and Cpl. Hilliard testified that they

considered themselves on duty and supervising their unit while

Cpl. Hilliard drove Respondent home at about 1 a.m. 5 Both men

were monitoring their radios, and their subordinates were aware

that Cpl. Hilliard was taking Respondent home.

38. Cpl. Hilliard testified that he and Respondent left no

specific instructions as to who was supervising the squad while

he gave Respondent a ride home. Cpl. Hilliard stated that he

would have turned his car around and gone to help a deputy had

there been an emergency.

39. Respondent contended that he was entitled to flex the

two hour shortfall on November 2, 2008, because he had taken

some new uniform shirts to the cleaners to be altered.

Sgt. Holbrook confirmed that PCSO employees may flex time for

taking their uniforms for alteration, but only if they go to one

of three designated cleaners. These cleaners perform the

alterations at no charge to the individual employee. The PCSO

pays the cleaners for the alterations. Sgt. Holbrook testified

that one of the designated cleaners, Americana Cleaners, is

about a mile and a half from the SAB, and another is in the

northern part of the county, closer to Respondent's home.

40. However, Respondent did not take his shirts to one of

the designated cleaners. He went to Royal Cleaners, at the

intersection of Alderman Road and U.S. 19, about 20 minutes from

his house. Royal Cleaners is operated by Respondent's aunt,

Rosalina Diana, who also does tailoring.

41. Respondent testified that he had just been issued nine

new long-sleeved shirts. A cold snap had come through Pinellas

County, and Respondent wanted to wear these warm shirts as soon

as possible. He had always used Americana Cleaners, though it

was far from his house and closed at 5:00 p.m. On this

occasion, he took the shirts to Royal Cleaners because it was

more convenient and because he knew his aunt could quickly

perform the alterations to the shirts. Respondent paid for the

alterations out of his own pocket in the interest of saving

time.

42. If a deputy is willing to absorb the cost of

alterations, its seems unfair to disallow him flex-time to take

his uniforms to the cleaners of his choice, provided the

location is a reasonable distance from the SAB or is on the

deputy's route from home to the SAB. 6 However, even if

Respondent was entitled to flex the time he spent taking his

shirts to Royal Cleaners, there remains the question whether he

could flex the time without submitting paperwork.

43. In each instance of a discrepancy between time paid

and recorded time worked, Respondent claimed that the only

possible explanation was that he flexed the differential. Even

on those shifts that he could not clearly recall, Respondent was

adamant that he never intentionally shorted his time and that he

must have flexed the hours. The PCSO responded that Respondent

could not have flexed the hours in question without creating a

record and obtaining approval pursuant to PCSO Personnel Rule

11. See Finding of Fact 10, supra .

44. Personnel Rule 11 requires that employees performing

approved work for subsequent flex-time off "will submit a

Request for Overtime Compensation to a supervisor immediately

after the time worked. Overtime that has been flexed must be so

noted on the overtime memo. The form will be forwarded to

Fiscal."

45. Respondent did not notify his supervisors of his

intention to flex hours in the situations presented by this

case, and he did not submit the paperwork to document the

changes to his schedule. On the following dates, Respondent

simply submitted paperwork indicating that he worked a regular

ten-hour shift despite the fact that records indicated he worked

fewer than ten hours, and Respondent had no explanation for the

discrepancy: August 20, 2008, September 16, 2008, September 22,

2008, and October 26, 2008.

46. For September 29, 2008, Respondent accounted for the

time differential through his testimony regarding the warranty

repairs to his patrol car, but he did not file the required

paperwork to indicate that he did anything other than work a

regular ten-hour shift. For September 30, 2008, Respondent

explained his 8.5 hour absence from work through his testimony

regarding the emergency situation with his wife, but again

allowed paperwork to be filed indicating that he worked a

regular ten-hour shift. For November 2, 2008, Respondent

explained the two hour differential as flex-time for having

taken his shirts to be altered, but again allowed paperwork to

be submitted indicating that he worked a regular ten-hour shift.

47. Sgt. Holbrook testified that he investigated all of

the days in the relevant pay periods in an effort to find

documentation that Respondent had worked extra hours to balance

the shortfalls, but he could find no such extra time.

48. Respondent contended that, during the time period in

question, there was no strict requirement that paperwork be

filed for flex time in the STAR unit. Flexing, rather than paid

overtime or comp time, has been used more extensively by the

PCSO in light of the budget crises of the past few years, and

Respondent testified that it was commonplace for deputies to

flex time without submitting paperwork. Respondent testified

that the paperwork requirement has only been enforced since the

investigation into his time entries, and that throughout the

PCSO, the requirement is known as the "Bobby Haimes Rule."

49. Several current and former PCSO employees testified in

support of Respondent's contention. Cpl. Hilliard testified

that when he flexed hours, he told his sergeant that he was

doing so but filled out no paperwork. He did not know whether

the sergeant or lieutenant in charge later filled out the

paperwork.

50. Sgt. Esterline was asked whether paperwork was filled

out for flexing when he worked in the Narcotics division, and

answered as follows:

There was a time when there was no paperwork

filled out, and over the years there has

been numerous incidents that have changed

the way we do payroll. Usually, it's an

incident that happens that causes some

tightening up of the policies, but it

depends on who you work for and where you

work for them and what the policy was. It's

been done in different places for years.

51. Sgt. Esterline testified that Respondent's troubles

had ended the practice of flexing without paperwork, and caused

a new procedure to be instituted whereby deputies are required

to fill out paperwork even when they take flex-time off on the

same day they worked extra off-shift hours.

52. Sergeant Nathan Samoranski, a 22-year veteran of the

PCSO, testified that he had always done flexing with paperwork

until he was transferred to the STAR unit in 2008. When he

moved to the STAR unit, Sgt. Samoranski was told that he did not

need to fill out paperwork for same-day flexing. He told the

timekeeper that he would prefer to do paperwork for all flexing,

and was told that he could require paperwork for the deputies

under his command.

53. John Pikramenos, who retired in 2008 after 30 years

with the PCSO, was a STAR sergeant with the north county unit,

though he never worked with Respondent. Mr. Pikramenos

testified that throughout his career, the people who worked for

him flexed without paperwork, provided they gave him notice and

flexed the hours on the same day. He would do paperwork if more

than an hour or two was being flexed, or if the deputy was

taking flex-time off on a different day than the one on which

the time flexed was worked.

54. Sergeant Clark Wagner has been in the K9 unit for four

years but worked in the same STAR unit as Respondent for the two

immediately preceding years. Sgt. Wagner testified that flexing

without paperwork was ubiquitous until six to eight months ago,

when the directive was issued that paperwork must be done for

same-day flexing. Prior to the directive, deputies would

commonly flex two hours without paperwork, provided their

supervisors were aware that they were flexing.

55. Deputy Michael Smalley has spent nine years with the

PCSO, two of which were in the STAR unit. Dep. Smalley

testified that the STAR unit flexed without paperwork "all the

time" provided the sergeant knew about it. He did not know how

the time was entered in the unit's attendance book.

Dep. Smalley only knew that there was no problem so long as the

deputy worked a total of 40 hours for the week.

56. Deputy Randy Ream, who has worked in the DUI and vice

squads, testified that same-day flexing without paperwork

stopped in the DUI squad as soon as Respondent was disciplined.

57. Deputy James Vickers has worked in the K9 unit since

January 2001 and earlier worked in the DUI squad. Dep. Vickers

testified that same-day flexing without paperwork was

commonplace throughout the special operations divisions of the

PCSO, until the change occurred in the past year. Dep. Vickers

confirmed that the change is referred to as the "Bobby Haimes

Rule."

58. All of these witnesses supported Respondent's

assertion that same-day flexing without paperwork was common

throughout the PCSO, despite the formal requirements of

Personnel Rule 11. However, none of these witnesses testified

that it was ever the practice in the PCSO for employees to flex

hours without first notifying their superiors. The evidence

established that, except for September 30, 2008, when he

informed Cpl. Hilliard that he was going home to deal with his

wife, Respondent never gave notice to a superior or acting

supervisor that he was flexing the hours that he now claims to

have taken.

59. Further, Respondent's supporting witnesses also

confirmed under cross-examination that no amendment was made to

the PCSO's General Orders or Rules and Regulations in order to

give effect to the "Bobby Haimes Rule." They understood that no

amendment was necessary because the practice of same-day flexing

without paperwork was never in keeping with Personnel Rule 11,

and that the practice was undertaken with a wink and a nod by

some sergeants, corporals and deputies in certain units of the

PCSO. In his testimony before the Administrative Review Board,

Respondent claimed that he was unaware that the General Orders

required documentation of flex-time. The evidence clearly

demonstrated that superior officers such as Lt. Jones were

unaware that flexing without paperwork was happening in their

commands. The "Bobby Haimes Rule" was simply the incident that

caused "some tightening up" of the enforcement of the personnel

rules that had always been in place.

60. Even if Respondent's claim is credited, and it is

accepted that he took flex-time for the missing hours but

followed the then-common practice and failed to submit

paperwork, the problem remains that there is no documentation

that Respondent actually worked the extra hours that would have

entitled him to take flex-time off. Lt. Jones and Sgt. Holbrook

made diligent efforts to document the extra hours, but could not

find them in the records. Aside from his testimony regarding

the September 29, 2008, car repairs and the November 2, 2008,

trip to the cleaners, Respondent could provide only speculation

and vague guesses as to how he might have earned flex-time on

the dates in question.

61. General Order 3-1 establishes the standard of conduct

expected of members of the PCSO. The disciplinary system is

divided into five categories, from Level One to Level Five, in

increasing order of seriousness. General Order 3-1.1 sets forth

Level Five violations, and includes Rule and Regulation 5.14,

"Conduct Unbecoming Members of the Agency," which further

subsumes Rule and Regulation 5.14c, "Knowingly making a false

entry or cause a false entry to be made in any official record

of the agency."

62. A preponderance of the evidence established that

Respondent caused false entries to be made in official records

of the agency, in that he allowed inaccurate time entries to be

made and accepted the payments generated by those inaccurate

entries. Respondent conceded that false entries were made, at

least insofar as he failed to document the extra hours for which

he claimed to have earned flex-time. The only point in question

is whether Respondent "knowingly" caused false entries to be

made in the PCSO's official records.

63. The PCSO's rules do not include a special definition

of the term "knowingly," which indicates intent to rely on

common legal usage of this term, which entails concepts of

willful or intentional action. In the context of Rule and

Regulation 5.14c, it may be said that an employee "knowingly"

acts when he makes a false entry with actual knowledge of the

requirements of the personnel rules, or makes a false entry with

deliberate ignorance or reckless disregard of the requirements

of the personnel rules. In this case, Respondent claimed not to

have actual knowledge that Personnel Rule 11 required

documentation of flex-time. If this claim were credited, the

question would then arise whether a sergeant with 19 years of

experience in the PCSO could be unaware of his agency's

personnel rules in the absence of deliberate ignorance or

reckless disregard. Respondent's claim of ignorance is not

plausible.

64. Respondent presented evidence sufficient to establish

that the practice of same-day flexing without paperwork was

commonplace within certain units of the PCSO. However, the

evidence also established that most employees indulging in the

practice understood that they were not complying with the PCSO's

rules, and that their superior officers were unaware that the

rules were not being followed. Respondent was not "singled out"

for punishment. He merely had the bad luck of being the first

person caught casually violating Personnel Rule 11 in this

fashion, which in turn triggered an agency-wide tightening of

enforcement of the paperwork requirement. The totality of the

evidence established that Respondent believed it was acceptable

to flex without paperwork because other people did so and no

punishment ever seemed to ensue, not because he believed that

PCSO rules permitted the practice. The preponderance of the

evidence established that Respondent knowingly caused false

entries to be made in the official records of the PCSO, in

violation of Rule and Regulation 5.14c.

65. General Order 3-1.2 sets forth Level Four violations,

and includes Rule and Regulation 4.9, "Improper Conduct by

Members of the Agency," which further subsumes Rule and

Regulation 4.9b, "Absence without leave from duty." Respondent

is alleged to have violated Rule and Regulation 4.9b when he

spent a portion of his October 26, 2008 shift at his parents'

house watching the World Series.

66. Respondent conceded that he watched the World Series

at his parents' house while on duty, but contends that he should

not be charged with the Level Four offense of being absent

without leave. Respondent asserts that it would be more

appropriate to charge him with a violation of Rule and

Regulation 3.13, which forbids, among other things, "loafing"

and "idling" while on duty. Rule and Regulation 3.13 is a Level

Three violation.

67. In his defense, Respondent noted that he was in

uniform, constantly monitored his radio, and periodically went

to his patrol car to check his computer while he stood and

watched the baseball games. Respondent's mother credibly

supported his description. As to the evening of October 26,

Respondent testified that he had no one under his command and

that he was needed only for pursuits or other emergencies.

Sgt. Peasley, the regular supervisor of Squad Three, denied

telling Respondent that he was not needed to patrol as the S30B

on the night of October 26, 2008.

68. Rule and Regulation 4.9b does not define the term

"absent without leave from duty." 7 However, under any common

sense reading of the term, it is clear that Respondent was not

present at his place of duty for approximately three and one-

half hours on the night of October 26, 2008, while he watched a

World Series game at his parents' house. He may also have been

"loafing" or "idling" while at his parents' house, but such does

not disprove that he was absent from his place on patrol as the

road supervisor for Squad Three. As Chief Deputy Gualtieri

admonished Respondent at the Administrative Review Board, "As

long as there is a deputy on the street, you've got somebody to

supervise." The preponderance of the evidence established that

Respondent was absent without leave from duty, in violation of

Rule and Regulation 4.9b.

69. General Order 3-1.3 sets forth Level Three violations,

and includes Rule and Regulation 3.31, "Inappropriate Conduct by

Members of the Agency," which further subsumes Rule and

Regulation 3.31g, the relevant portion of which includes,

"Failure to properly supervise subordinates...." Respondent is

alleged to have violated Rule and Regulation 3.31g when he left

his squad unattended while Cpl. Hilliard drove him home on

November 2, 2008, and when he spent a portion of his October 26,

2008 shift at his parents' house watching the World Series.

Based on the findings of fact above, the preponderance of the

evidence established that Respondent failed to properly

supervise subordinates, in violation of Rule and Regulation

3.31g, on both occasions.

70. General Order 10-2 sets forth the PCSO's disciplinary

procedures, including the scale to be used in determining the

amount of discipline rendered for sustained violations, based on

their severity. The Progressive Discipline Worksheet prepared

by the PCSO in accordance with the point scale found in General

Order 10-2 assigned 50 points to the single Level Five violation

sustained against Respondent, 30 points for the single sustained

Level Four violation, and 15 points for the single sustained

Level Three violation, for a total of 95 points.

71. Rule and Regulation 10-2.6D provides that if the point

value falls between disciplinary ranges, the lower point value

is to be used in determining discipline. Respondent's total

fell between 75 and 100 points on the disciplinary range, and

therefore he is subject to the range of discipline provided for

a total of 75 points.

72. The minimum discipline for 75 points is a ten day

suspension. The maximum discipline is termination. General

Order 10-2 also reserves to the Sheriff the right to demote a

supervisor as part of the disciplinary process.

73. The Sheriff concluded that Respondent should be

demoted from the rank of sergeant to that of deputy, and that he

should receive the minimum ten day suspension. The

preponderance of the evidence shows that this is a reasonable

penalty.

CONCLUSIONS OF LAW

74. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

75. The Pinellas County Sheriff's Civil Service Act

governs these proceedings and authorizes the Sheriff to take

disciplinary actions against classified employees such as

Respondent.

76. Section 8 of the Pinellas County Sheriff's Civil

Service Act sets forth the duties and authority of the Civil

Service Board, which hears appeals arising from personnel

actions that could result in dismissal, suspension for more than

one working day, demotion, or reduction in base pay for

disciplinary or job performance reasons. Subsection (3) of

Section 8 sets forth the scope of the Civil Service Board's

review:

... In hearing appeals, the Civil Service

Board shall:

(a) Determine whether the aggrieved

member engaged in conduct prohibited by

section 6 [setting forth causes for

suspension, dismissal or demotion] or by a

departmental rule promulgated by the

Sheriff;

(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). 8

77. The burden of proof in an administrative proceeding

is on the party asserting the affirmative of the issue unless

the burden is otherwise established by statute. 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). 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.

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

preponderance of the evidence supports a finding that Respondent

is guilty of committing the three violations alleged by

Petitioner in the charging document, and that demotion and a ten

day (80 hour) suspension is a reasonable penalty.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered finding that

Respondent engaged in the prohibited conduct alleged by the

charging document, and upholding the discipline imposed by the

Sheriff as recommended by the Administrative Review Board.

DONE AND ENTERED this 6th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 6th day of October, 2009.

ENDNOTES

1 / Respondent's residence was in the extreme northern part of

Pinellas County, whereas his STAR unit was working "South

County," i.e., everything south of Gulf-to-Bay Boulevard (State

Road 60).

2 / Evidence at the hearing established that deputies drive their

patrol cars home after work, and are required to turn on the

car's computer (which includes the GPS) at the time they leave

home for their next shift. However, deputies are not paid for

their travel time from home to their office. Respondent lives

more than twenty miles from the Sheriff's Administration

Building (hereinafter referred to as the SAB) to which he

reported for duty during the period in question, meaning that

Sgt. Holbrook credited Respondent for a significant amount of

time during which Respondent was not technically on the clock.

3 / PCSO records employ military time. For ease of referral, this

Recommended Order will retain the military time format.

4 / In this instance, Respondent was not credited with driving

time from his residence. The GPS in his patrol car indicated

that Respondent logged on at his house at 15:42 hours.

5 / In this instance, Respondent was not credited with the driving

time for the approximately 20 mile ride home with Cpl. Hilliard,

presumably because he was not in his own vehicle and GPS records

were therefore not available.

6 / In addition to Sgt. Holbrook's testimony, a colloquy between

Respondent and Chief Deputy Robert Gualtieri at the

Administrative Review Board indicated that employees were not

allowed to choose their own tailors. In fact, Chief Deputy

Gualtieri called the notion "a bunch of nonsense." However,

Petitioner offered no rule or regulation of the PCSO that

requires deputies to use only certain cleaners. At the hearing,

the undersigned was left with the impression that the

restriction is a contractual arrangement between PCSO and

certain cleaners, not a matter of agency policy.

7 / Article 86 of the Uniform Code of Military Justice, 10 U.S.C.

§ 886, provides the following under the title, "Absence without

leave:"

Any member of the armed forces who, without

authority—

(1) fails to go to his appointed place of

duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from

his unit, organization, or place of duty at

which he is required to be at the time

prescribed;

shall be punished as a court-martial may

direct.

There is no authority to strictly apply the UCMJ definition

to an employee of the PCSO. However, this definition is useful

in arriving at a workable distinction between "absence without

leave" and "loafing" or "idling."

8 / Subsection (6) of Section 8 provides as follows:

Within 10 days of the conclusion of the

appeals hearing, or receipt of the proposed

recommended order from the Division of

Administrative Hearings, whichever is

longer, unless the parties agree to a longer

period, 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.

COPIES FURNISHED :

Sherwood S. Coleman, Esquire

Pinellas County Sheriff`s Office

Post Office Drawer 2500

Largo, Florida 33779-2500

Jeffrey G. Brown, Esquire

Brown & Doherty, P.A.

450 Carillon Parkway, Suite 120

St. Petersburg, Florida 33716

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.