12-002472 Pinellas County Sheriff&Apos;S Office vs. Kyle Alston Status: Closed Recommended Order on Wednesday, March 20, 2013.

Summary: Sheriff deputy's felony trespass warrants termination from employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF ' S )

OFFICE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2472

)

KYLE ALSTON , )

)

Respondent . )

)

RECOMMENDED ORDER

On January 22, 20 1 3 , an administrative hearing in this case

was held by video tele conference in St. Petersburg and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Grant Ro zelle, Esquire

Pinellas County Sheriff ' s Office

10750 Ulmerton Road

Largo, Florida 33778

For Respondent: Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638

Tampa, Florida 33675

STATEMENT OF THE ISSUE S

The issue s in this case are whether the Respondent, by

committing the felony of armed trespass while employed as a

d eputy s heriff, failed to fulfill his duties an d responsibilities

as an employee of the Petitioner, and , if so, whether the

termination of the Respondent ' s employment was consistent with

applicable disciplinary policy.

PRELIMINARY STATEMENT

Based on the results of an internal investigation, the

Pinella s County Sheriff ' s Office (Petitioner) terminated the

employment of Kyle Alston (Respondent) as a deputy sheriff. The

Respondent disputed the termination and requested an

administrative hearing. Pursuant to a contractual agreement

between the Petitioner and the Division of Administrative

Hearings (DOAH), the Petitioner forwarded the request to DOAH ,

which scheduled and conducted the hearing .

At the hearing, each party presented the testimony of one

witness . Joint E xhibit s 1 through 11 were admitted into

evidence.

A T ranscript of the hearing was filed on February 19, 2013.

On March 1, 2013, the Petitioner filed a Proposed Recommended

Order. On March 4, 2013, the Respondent filed a Proposed

Recommended Order. On that same date, the Respondent also filed

a Motion to File Proposed Recommended Order Out of Time,

referencing a March 1, 2013, motion seeking additional time to

file the proposed order. That motion was apparently filed after

5:00 p.m. on March 1, 2013, and was docketed by DOAH at 8:00 a.m.

on Ma rch 4, 2013. See Fla. Admin. Code R. 28 - 106.104(3).

On March 4, 2013, the Petitioner filed a m emorandum in

o pposition to the Respondent ' s m otion for e xtension of t ime.

The Respondent ' s m otions are granted. Both p roposed

r ecommended o rders were considered in the preparat ion of this

Recommended Order.

Prior to the hearing, the parties submitted a Joint Pre -

hearing Stipulation including a statement of admitted facts that

have been adopted and are incorporated herein.

FINDING S OF FACT

1. At all times materia l to this case, the Respondent was

employed by the Petitioner as a deputy sheriff.

2. The Respondent had been employed for 12 to 13 years as a

law enforcement officer prior to his employment with the

Petitioner. He was employed by the Petitioner for more than six

years prior to the termination at issue in this proceeding.

3. In September 2009, two undercover law enforcement

officers, one of whom was the Respondent, went from a public

alleyway through a privacy fence and into the private backyard

property of a Pinellas County citizen.

4. The entry occurred at night. The alley and backyard

area were unlit. The Respondent was dressed in shorts and a

t - shirt and was armed with a gun.

5. The officers had no search warrant authorizing their

entry onto the p rivate property.

6. The Respondent ' s entry into the private backyard was an

act of trespass. The commission of a trespass while armed

constitutes a third degree felony.

7. The Respondent did not report the trespass to any

superior officer within the Pet itioner ' s chain of command.

8. The Respondent has asserted that he was merely following

the other officer ' s lead on the night when the trespass occurred

and did not think that he had acted improperly.

9. During a deposition for an un related criminal case , the

Respondent was questioned about whether he had observed another

officer engage in a similar trespass. The Respondent resisted

answering the question, sought legal advice from an assistant

state attorney, and then declined to answer the question.

10. Even after being questioned about the issue during the

deposition, the Respondent still failed to report the incident to

any superior officer within the chain of command.

11. After a complaint of misconduct was filed against the

Respondent, the Petition er commenced an administrative

investigation. During the investigation, the Respondent

acknowledged the trespass, but attempted to minimize his

participation in the incident and to assign responsibility for

the trespass to the other law enforcement office r.

12. Bob Gualtieri, the s heriff of Pinellas County, Florida,

is responsible for operation of the Petitioner and is authorized

to impose discipline on the Petitioner ' s employees who violate

rules or regulations adopted by the Petitioner in accordance wit h

a Civil Service Act.

13. The Petitioner has adopted General Order 3 - 1 to

establish a standard of conduct for the Petitioner ' s employees

and has categorized misconduct into disciplinary levels based on

the severity of a transgression.

14. "Level 5" viol ations reflect serious misconduct. The

Respondent ' s participation in the felony trespass and his failure

to report the incident to his superiors constitute separate

level 5 violations.

15. The Respondent violated Rule 5.4, which requires that

employees b e aware of their assigned duties and responsibilities

and take prompt and effective action in carrying them out.

16. The Respondent violated Rule 5.5, which requires that

employees observe and obey all laws and ordinances and report

violations by written memorandum upon their first duty shift

following a violation.

17. The Petitioner has adopted General Order 10 - 2 to

establish a point system to be followed by the Petitioner ' s

Administrative Review Board for the imposition of discipline

based on adopted gu idelines.

18. The Respondent has accumulated 75 disciplinary points,

60 of which are based on the trespass incident underlying this

proceeding. Termination from employment is within the range of

discipline established by the Petitioner ' s rules and proced ures

applicable to the facts of this case .

19. The Respondent has asserted that the s heriff ' s exercise

of discretion in terminating his employment was severe and

unreasonable. There is no credible evidence to support the

assertion.

20. The basis for the Respondent ' s termination was the

Respondent ' s commission of the felony of armed trespass and his

failure to inform any superior officer within the chain of

command of the incident. The s heriff ' s decision to terminate the

Respondent from employment was cl early warranted.

21. There is no evidence that the s heriff inappropriately

applied the Petitioner ' s rules and procedures or that any

similarly - situated employee has been subjected to lesser

discipline by Sheriff Gua lti eri for comparable conduct.

CONCLUSIO NS OF LAW

22. For purposes of conducting a hearing and issuing this

Recommended Order, jurisdiction over the parties to and subject

matter of this proceeding has been conferred on DOAH pursuant to

a contractual agreement between DOAH and the Petitioner .

2 3. The Petitioner has the burden of establishing, by a

preponderance of evidence , that termination of the Respondent ' s

employment is a reasonable penalty for the violation of the

Petitioner ' s disciplinary standards. Grice v. City of Kissimmee ,

697 So. 2d 186 (Fla. 5th DCA 1997); MacNeill v. Pinellas C n ty .

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

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

Petitioner has met the burden of proof.

24. In this case, the Respondent has admitted committing

an armed trespass, a third degree felony pursuant to

s ection 810.09(2)(c), Florida Statutes (2009). The Respondent

failed to report the trespass to anyone in his chain of command.

There is no challenge to the calculation of disciplin ary points.

The sole issue in the case is whether the Respondent ' s

termination from employment is consistent with Sheriff

Gualtieri ' s disciplinary policies.

25. The Respondent has asserted that he did not believe the

officers acted inappropriately when t hey entered the private

backyard and , accordingly , did not report the entry to the chain

of command. The assertion is contradicted by the fact that , when

he was directly questioned about the incident during a

deposition, he actively resisted answering the question and

sought legal assistance to support his position. Had the

Respondent believed that nothing improper occurred when he

committed the armed trespass, there would have been no reason for

him to decline to answer the question.

26. The evidence es tablishes that the Petitioner ' s

termination of the Respondent ' s employment was proper and

warranted by the facts of the case. The Respondent presented no

credible evidence to the contrary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of

Law, it is RECOMMENDED that the Pinellas County Sheriff's Office

enter a f inal o rder terminating the Respondent from employment.

DONE AND ENTERED this 20th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 20th day of March , 2013 .

COPIES FURNISHED:

Paul Grant Rozelle, Esquire

Pinellas County Sheriff ' s Office

10750 Ulmerton Road

Largo, Florida 33778

Carole Sanzeri , Esquire

Pinellas County Attorney's Office

315 Court Street , Sixth Floor

Clearwater, Florida 33756

Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638

Tampa, Florida 33675

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the da te 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.