20-001350 Pinellas County Sheriff&Apos;S Office vs. Roy Harper Status: Closed Recommended Order on Wednesday, August 19, 2020.

Summary: Petitioner proved that Respondent acted outside of the scope of his duties by threatening, without justification, bodily harm towards an inmate. Termination of employment is reasonable and warranted.

Duties and Responsibilities. On or about March 9, 2020, Respondent filed his

N otice of A ppeal and request for Civil Service Board review. In accordance

with the Pinellas County Sheriff's Civil Service Board Rules of Procedure, the Civil Service Board, on or about March 11, 2020, forwarded this matter t o the

Division of Administrative Hearings for review and entry of a Recommended

Order.

The final hearing was noticed for video teleconference scheduled to

commence on May 28, 2020. Following the granting of “Respondent’s

Unopposed Motion to Continue Statu s Conference,” the instant matter was

noticed for Zoom video teleconference , and the hearing commence d on July 2,

2020.

At the final hearing, Sheriff Bob Gualtieri testified on behalf of Petitioner.

Respondent testified on his own behalf. Joint Exhibits 1 through 21 are the

only e xhibits admitted into evidence.

A single - volume Transcript of the final hearing was filed on July 20, 2020.

Respondent filed a Proposed Recommended Order on July 30, 2020, and

Petitioner did th e same on August 4, 2020. The P rop o sed Recommended

O rders submitted by the parties have been considered by the undersigned.

F INDINGS OF F ACT

A. Stipulated Facts

1. Bob Gualtieri is the duly - appointed sheriff of Pinellas County, Florida.

2. Sheriff Gualtieri is in command of the operations of the PCSO and is

responsible for providing law enforcement and corrections services within

Pinellas County, Florida.

3. Sheriff Gualtieri is authorized to impose discipline in accordance with

the Civil Service Act, upon PCSO members/employees who are fou nd to have

violated rules or regulations of the PCSO.

4. During all times pertinent to this case, Respondent was employed by

the PCSO as a Deputy Sheriff, and had been so for the preceding nine years.

As a Deputy Sheriff, Respondent is charged with the res ponsibility of

complying with all applicable state laws and PCSO rules, regulations,

general orders, and standard operating procedures.

5. Respondent is familiar with the rules, regulations, general orders, and

standard operating procedures of the PCSO.

6. Respondent has been employed by the PCSO for approximately nine

years, and has worked exclusively in the bureau of arrestee/prisoner (inmate)

corrections and detention , where his primary responsibility is to ensure the

care, custody , and control of inmate s.

7. Sergeant Bronson Taylor is assigned to the PCSO Administrative

Investigation s Division.

8. Sergeant Kimon Koungras is assigned to the PCSO Administrative

Investigations Division.

9. Sergeants Taylor and Koungras investigated a complaint of misconduc t

that was filed against Respondent on or about December 16, 2019.

10. The complaint of misconduct alleged that on December 10, 2019,

Respondent violated General Order 3 - 0 1.1, Rule and Regulation 5.4, Duties

and Responsibilities.

11. In his sworn statement given during the investigation and in

appearing before the Administrative Review Board, Respondent admitted

that he and an inmate accidentally bumped into each other during the

distribution of commissary.

12. In his sworn statement given during the invest igation and in

appearing before the Administrative Review Board, Respondent admitted

that he pulled out the 911 tool – which is a knife – from his tool belt, walked

up to the inmate, and spoke to him.

13. In his sworn statement given during the investigat ion and in

appearing before the Administrative Review Board, Respondent admitted

that doing so was “a bad decision.”

14. Respondent told the Administrative Review Board that he made a

“poor decision bringing out the 911 tool as we had that interaction.”

15 . In his sworn statement given during the investigation, Respondent

admitted that his conduct on December 10, 2 0 19, violated r ule 5.4.

16. Pursuant to PCSO General Orders, the Administrative Review Board

met, reviewed the disciplinary file, questioned Resp ondent, gave Respondent

an opportunity to make a statement, and determined that based on the

preponderance of the evidence, Respondent had violated the Sheriff’s rules.

17. The Administrative Review Board sustained the violation of r ule 5.4.

18. Pursuant t o Petitioner’s progressive discipline policy, the Sheriff is

solely responsible for all disciplinary decisions. The determination of

disciplinary action is reserved exclusively to the Sheriff.

19. In reviewing evidence from the Administrative Investigation and the

findings of the Administrative Review Board, the Sheriff sustained the

r ule 5.4 charge.

20. PCSO General Order 10 - 2 covers discipline and ranks certain offenses.

21. PCSO General Order 10 - 2 ranks offenses from Level 1 to Level 5.

22. Level 1 offen ses are the least severe; Level 5 offenses are the most

severe.

23. A violation of r ule 5.4 is a Level 5 violation.

24. The General Orders set forth a procedure for assigning points for each

sustained violation.

25. According to the number of points, there is a corresponding table that

indicates the range of punishment.

26. The point total for the sustained violation found in Respondent’s case

is 50.

27. Under PCSO General Order 10 - 2, the range of discipline for a 50 point

violation is a minimum five - day s uspension through termination of

employment.

28. As a result of the findings of the Administrative Review Board, the

Sheriff imposed discipline on Respondent.

29. Specifically, the Sheriff terminated Respondent from his employment

with PCSO.

B. Additional Findings of Fact

30. Paragraph 12 of the stipulated facts set forth herein, is further

illuminated by the video evidence showing Respondent’s interaction with the

inmate in question. The video shows that Respondent, while positioned with

his back to the in mate, was having a moment of levity with a co - worker when

the inmate, while walking past Respondent, appears to inadvertently make contact with Respondent’s left hand.

31. Upon being touched by the inmate, Respondent’s demeanor instantly

changes from lau ghing and mirthful, to aut horitarian and confrontational.

32. The video of Respondent’s interaction with the inmate does not contain

audio. However, the video shows that words were exchanged between

Respondent and the inmate. The video also shows that with in seconds of

speaking to the inmate, Respondent removed his 911 tool from his belt

holster with his left hand, and then placed the tool in his right hand where he

flicked his wrist so as to cause the 911 tool to snap to the fully open position.

Respondent then walked towards the inmate and gesture d with the 911 tool

towards the inmate’s upper torso. Respondent then retract ed the bladed

portion of the 911 tool, smile d briefly in the direction of the inmate, and then

step ped away from the inmate while re - hol stering the 911 tool.

33. The 911 tool used by Respondent is a single - edged knife, and is

capable of causing bodily injury.

34. Neither the inmate that Respondent threatened with the 911 tool, nor

other witnesses to the incident, testified during the final hearing. Petitioner

did, however, offer into evidence the sworn statements of the inmate and

witnesses to the incident that were prepared as part of the internal

investigation conducted by the PCSO. In the context of this proceeding, these

hearsay stateme nts have little, if any, evidentiary value for reasons including

factual inconsistencies contained in the statements, and the inability of the

fact - finder to meaningfully evaluate the credibility of the witnesses.

C ONCLUSIONS OF L AW

35. The Division of A dministrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. § 120.65(6), Fla. Stat. (2019).

36. "The burden of proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tri bunal." Balino v. Dep't of

HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Petitioner is asserting that

Respondent violated PCSO General Order 3 - 01 .1, r ule 5.4 , and therefore

Petitioner, as the party asserting the affirmative, carries the burden of

proving b y a preponderance of the evidence that Respondent committed the

alleged violations.

37. A preponderance of the evidence is defined as "the greater weight of

the evidence" or evidence that "more likely than not" tends to prove a certain proposition. Gross v . Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

38. Chapter 89 - 404, Laws of Florida, as amended by c hapter 08 - 285,

section 6, Laws of Florida, authorizes the PCSO to take certain disciplinary

action against classified employees. Chapter 89 - 404 also authorize s the PCSO

to adopt rules and regulations as are necessary to carry out the sheriff's

functions. Pursuant to this authority, the PCSO has adopted policies, procedures, general orders, rules, and regulations which establish a standard

of conduct which must be followed by employees of the sheriff's office.

39. General Order 3 - 01, of which agency r ule 5.4 is a part, provides that

“[t]he primary responsibility of all Sheriff’s Office personnel is to be aware of

their assigned duties and responsibilities, [and t hat] [a]ll personnel are

always subject to duty and are responsible for taking prompt and effective

action within the scope of their duties and abilities whenever required.”

40. The preponderance of the evidence establishes that Respondent

violated General Order 3 - 01.1, r ule 5.4, as charged.

41. Respondent’s defense against the instant action is threefold.

Respondent’s first and second defenses are interrelated and are premised on

Respondent’s belief that the 911 tool is incapable of causing bodily harm.

Ac cording to Respondent, since the 911 tool is incapable of inflicting bodily

harm, then it was objectively unreasonable for the inmate to become fearful

when confronted by Respondent. Second, Respondent asserts that he was only “joking” with the inmate when he approached him with the 911 tool, and

that his claim of “joking” with the inmate is bolstered by the fact, once again, that the 911 tool is incapable of causing bodily injury.

42. The premise upon which Respondent builds his first and second

defenses i s faulty because the greater weight of the evidence establishes that

the 911 tool is capable of causing bodily injury. Furthermore, while Respondent may have, in his mind, been “joking” when he approached the inmate with the 911 tool, it was objectively re asonable, based on the credible

evidence before the undersigned , including consideration of the capability of

the 911 tool to cause bodily injury, for the inmate to have felt intimidated and

fearful when confronted by Respondent. The charge of being entrus ted with

the care, custody, and control of inmates is a n obligation that is not to be

undermined by irresponsible and dangerous acts of silliness and horseplay.

43. Respondent’s third defense is grounded i n his belief that the Sheriff’s

decision to termin ate his employment is excessive when compared to other

employment - related disciplinary action taken by the Sheriff against deputies

under factually similar circumstances. Respondent offered no credible

evidence establishing that the Sheriff’s disciplinary action in the instant case

is inconsistent with past practices.

44. Petitioner has met its burden of proving that Respondent, in violation

of General Order 3 - 01.1, r ule 5.4, acted outside of the scope of his duties by

threatening, without justification, bo dily harm towards the inmate in

question.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner, Pinellas County Sheriff’s Office, enter a

final order finding that Respondent, Roy Harper, violate d General Order

3 - 01.1, r ule 5.4, and terminating his employment.

D ONE A ND E NTERED this 19th day of August , 2020 , in Tallahassee, Leon

County, Florida.

L INZIE F. B OGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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

Division of Administrative Hearings

this 19th day of August , 2020 .

C OPIES F URNISHED :

Paul Grant Rozelle, Es quire

Pinellas County Sheriff's Office

10750 Ulmerton Road

Largo, Florida 33778

(eServed)

Kyle J. Lee, Esquire

1971 West Lumsden Road , Suite 303

Brandon, Florida 33511

(eServed)

Jewel White, Esquire

Pinellas County Attorney's Office

315 Court Street, S ixth Floor

Clearwater, Florida 33756

(eServed)

Shannon K. Lockheart, General Counsel

Pinellas County Attorney's Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.