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HomeMy WebLinkAbout2008 09 25 Complaint Review Board Regular MinutesCITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING SEPTEMBER 25, 2008 This Complaint Review Board Hearing of Thursday, September 25, 2008 was convened by Chairperson Dorothy F. Green at 1:44 p.m. in the Commission Chambers of the Municipal Building (City Hall, 1126 East State Road 434, Winter Springs, Florida 32708). In Attendance: Dorothy F. Green, Esquire, Chairperson Michael P. Clelland, Esquire Chief Daniel J. Kerr, Police Department Tobe M. Lev, Esquire Jeffrey E. Mandel, Esquire Jeff McCall, President, Winter Springs Professional Firefighters, IAFF Local 3296 Ronald W. McLemore, City of Winter Springs City Manager CONSENT AGENDA CONSENT 200. Complaint Review Board Approval of the August 8, 2008 Complaint Review Board Minutes. "MOVE TO APPROVE [THE AUGUST 8, 2008 MINUTES]." MOTION BY BOARD MEMBER KERB. SECONDED BY BOARD MEMBER CLELLAND. DISCUSSION. VOTE: CHAIRPERSON GREEN: AYE BOARD MEMBER CLELLAND: AYE BOARD MEMBER KERB: AYE MOTION CARRIED. CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 2 OF 9 REGULAR AGENDA REGULAR 600. Complaint Review Board The Board Will Consider And Decide An Appeal Filed By Winter Springs Fire Fighter Lee Devillers Appealing A Disciplinary Action (Termination Of Employment From The City) Made By City Manager. "MOTION TO DENY [THE GRIEVANCE]." MOTION BY BOARD MEMBER KERB. SECONDED BY CHAIRPERSON GREEN. DISCUSSION. REGARDING JOINT EXHIBIT 6, BOARD MEMBER MICHAEL P. CLELLAND SAID, "AND TO THAT LAST CLAUSE BEGINNING WITH - `AND TO THE SUCCESSFUL OPERATION OF CITY GOVERNMENT', CAN BE READ CONVERSELY, IN MY OPINION - IT MEANS THAT `IF THE SUCCESSFUL OPERATION OF GOVERNMENT IS COMPROMISED BY BAD BEHAVIOR, THEN DISCIPLINE IS WARRANTED'. AGAIN, THERE IS NOTHING IN THE EVIDENCE TO SUGGEST THAT MR. [LEE] DEVILLERS BEHAVIOR COMPROMISED THE OPERATION OF THE GOVERNMENT AT ALL." BOARD MEMBER CLELLAND CONTINUED, "MR. [RONALD W.] MCLEMORE IS ON THE RECORD TESTIFYING THAT THE CITY WOULD ASSUME ADDITIONAL LIABILITY IF MR. (LEE] DEVILLERS WAS REINSTATED; NOW, IT MIGHT BE A TECHNICAL POINT, BUT IT IS MY UNDERSTANDING THAT THE SEMINOLE COUNTY FIRE DEPARTMENT WILL TAKE OVER FIRE SERVICES NEXT WEEK AND AT LEAST PRESUMABLY, THIS MAKES MR. [RONALD W.] McLEMORE'S POINT MOOT." MR. JEFF E. MANDEL, ESQUIRE STATED, "I WOULD JUST LIKE TO NOTE FOR THE - RECORD AN OBJECTION FOR RELIANCE UPON ANY EVIDENCE OR INFORMATION THAT WAS NOT PRESENTED ON THE RECORD." CHAIRPERSON GREEN REPLIED, "NOTED." DISCUSSION. NEXT, BOARD MEMBER CLELLAND REMARKED, "IT WAS NOT THAT THE CITY VIOLATED ONE (1) OF THE SEVEN (7) TESTS AS OUTLINED IN THAT FORMULATION, BUT IT WAS FOUR (4). SO, I -THINK IT IS PRETTY TELLING. AND ONE (1) OF THEM WAS THAT - NO NOTICE OF OFF DUTY - CONDUCT CONSEQUENCES WAS PROVIDED -CONDUCT DID NOT - HAMPER THE OPERATION TO THE DEPARTMENT IN ANYWAY, EXCEPT THE REPUTATION OF THE CITY. CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 3 OF 9 MR. [LEE] DEVILLERS WAS NEVER CONVICTED OF ANY OFFENSES CHARGED AND DISCIPLINE WAS UNREASONABLE, FINALLY, BECAUSE OF HIS ON DUTY BEHAVIOR THAT WAS OTHERWISE UNREMARKABLE AND HIS OFF DUTY BEHAVIOR HAD NO IMPACT ON THE OPERATIONS OF THE CITY." FURTHER DISCUSSION. BOARD MEMBER CLELLAND STATED, "A LINK IS REQUIRED BETWEEN THE OFF DUTY BEHAVIOR AND EITHER AN IMPACT TO THE REPUTATION OF THE EMPLOYER OR TO THE PERFORMANCE OF THE EMPLOYEE'S JOB. AND THE RECORD IS VOID OF EITHER. AND FINALLY, THE EMPLOYER'S RULES PROVIDE NO NOTICE TO THE EMPLOYEES ABOUT OFF DUTY BEHAVIOR AND THE CONSEQUENCES OF IT." DISCUSSION CONTINUED. LASTLY, BOARD MEMBER CLELLAND NOTED, "IN ANY CASE, THE FIRING OF MR. [LEE] DEVILLERS WAS UNWARRANTED AND THE EVENTS OF THE NIGHT DO NOT IN ANYWAY AMOUNT TO JUST CAUSE FOR HIS FIRING." BOARD MEMBER KERB STATED, "I THINK THE FACT THAT THE STATEMENT WAS THAT THE CHARGES WERE DROPPED AGAINST MR. [LEE] DEVILLERS IS AN INACCURATE STATEMENT. IT WAS NOT DROPPED. HE WAS PUT INTO A DIVERSION PROGRAM WHICH IS - DIFFERENT." BOARD MEMBER KERB CONTINUED, "I THINK THAT IN ITSELF DOES NOT DIVERT THE FACT THAT HE WAS ARRESTED FOR ASSAULT. AS YOU STATED, IT IS NOT UNUSUAL THAT SOMEONE WOULD BE EMOTIONAL UNDER A SITUATION LIKE THAT, BUT TO TAKE THAT TO AN EXTREME OF WHERE PEOPLE ARE TRYING TO RATIONALLY DEAL WITH HIM. AND HE IS A PROFESSIONAL THAT HAS BEEN PROBABLY IN THE SAME SITUATION HIMSELF IN DEALING WITH EMOTIONAL PEOPLE; THAT IN A CASE LIKE THAT, WE HAVE TO TAKE THAT INTO CONSIDERATION TOO. THAT HE SHOULD HAVE BEEN ABLE TO DEAL WITH THAT SITUATION AND NOT ENGAGE IN ACTIVITY THAT WAS GOING TO RESULT IN HIS ARREST. I THINK IT IS CLEAR THAT HE BROUGHT DISCREDIT ON THE WINTER SPRINGS FIRE DEPARTMENT AND THE CITY OF WINTER SPRINGS BY HIS ACTIONS." FURTHER DISCUSSION. CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 4 OF 9 CHAIRPERSON GREEN REMARKED, "HE APPEARED ON THE SCENE. WHETHER OR NOT HE ANNOUNCED HE WAS AN EMT (EMERGENCY MEDICAL TECHNICIAN) OR PARAMEDIC, MY VIEW, DOES NOT MAKE ANY DIFFERENCE - HE HAD A CITY OF WINTER SPRINGS TEE SHIRT ON THAT IDENTIFIED HIM WITH THE CITY, WHETHER OR NOT HE WAS ON DUTY, IN MY OPINION. AND ONE OF THE THINGS THAT IS DIFFICULT HERE IS -TRYING DISASSOCIATE THE -REGULAR HUMAN REACTION AND THE REACTION OF SOMEBODY IN THE LIGHT OF THEIR TRAINING AND THE KINDS OF THINGS THAT THEIR JOB PERFORMS. BUT, JUST THE SIMPLE MATTER DID HE DO IT? YES, HE DID. HE -WAS AGGRESSIVE; WHETHER THAT WAS UNDERSTANDABLE OR NOT. HE DID -REACT IN THAT WAY. SHOULD HE HAD REACTED THAT WAY? MY -OPINION THAT BASED ON HIS TRAINING AS A FIREFIGHTER, THAT - EVEN IN AN EXTREMELY STRESSFUL SITUATION - MY UNDERSTANDING IS THAT THEY ARE TRAINED TO - BE ABLE TO MANAGE THAT KIND OF STRESS." DISCUSSION CONTINUED. REGARDING JOINT EXHIBIT 6, CHAIRPERSON GREEN COMMENTED, "I BELIEVE THAT THIS GIVES THE CITY LEEWAY TO DECIDE WHAT DISCIPLINE IS APPROPRIATE." CHAIRPERSON GREEN CONTINUED, "AND IT APPEARS BASED ON THE TESTIMONIES AND THE DOCUMENTATION, THAT THE DECISION WAS MADE BASED UPON HIS DUTIES AS A FIREFIGHTER AND BASED ON HIS RESPONSIBILITY, I THINK THE PENALTY WAS ANALYZED IN THAT WAY." FURTHER DISCUSSION. CHAIRPERSON GREEN CONTINUED, "I THINK ONE OF THE THINGS THAT THE UNION POINTED OUT WAS THAT MOST OF THESE WERE ON DUTY. THERE ARE FEW THAT ARE NOT. I AM NOT SURE -THAT'S DETERMINATIVE OR NOT BECAUSE -THE TESTIMONY THAT MR. [LEE] DEVILLERS GAVE HIMSELF WAS THAT HE UNDERSTOOD THAT HE WAS HELD TO A HIGHER STANDARD AND THAT HE WAS EXPECTED OF ALL THESE RULES EVEN WHEN HE WAS OFF DUTY. I'M NOT PARAPHRASING IN THE RIGHT WAY, BUT MY NOTES REFLECTED THAT. IS THAT HE UNDERSTOOD THAT HE HAD AN OBLIGATION TO BEHAVE IN A CERTAIN WAY, ON OR OFF DUTY AND WITH SOME ACKNOWLEDGEMENT THAT HE HAD NOT." DISCUSSION CONTINUED. CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 5 OF 9 REGARDING THE UNION BRIEF, CHAIRPERSON GREEN MENTIONED, "THE UNION HAD POINTED OUT THAT THE FIRST, SECOND, FIFTH AND SEVENTH TESTS OF JUST CAUSE HAD NOT BEEN MET. I DID BELIEVE THAT HE HAD NOTICE - I DO NOT BELIEVE NOTICE - IS ANY PROBLEM HERE." FURTHER DISCUSSION. CHAIRPERSON GREEN STATED, "PROOF WAS ANOTHER THING THE UNION HAD POINTED OUT. WAS THERE SUBSTANTIAL EVIDENCE OF PROOF THAT THE EMPLOYEE'S GUILTY AS CHARGED? I -DID NOT SEE THAT AS AN ISSUE SIMPLY BECAUSE MR. [LEE] DEVILLERS HIMSELF HAD TALKED ABOUT, BASICALLY ADMITTED HE DID THAT. WHAT HE SEEMED TO DISPUTE WAS WHAT KIND OF DISCIPLINE; AT LEAST THAT IS WHAT MY NOTES REFLECTED FROM HIS TESTIMONY, IS WHAT KIND OF DISCIPLINE HE SHOULD RECEIVE; THAT SEEMED TO BE THE ISSUE THAT HE HAD." MUCH DISCUSSION. CONTINUING, CHAIRPERSON GREEN REMARKED, "AND I BELIEVE THAT THE CITY PROPERLY -COULD PROPERLY, MAKE THE DECISION TO DISCHARGE HIM BASED ON HIS CONDUCT THAT EVENING; BASED ON HIS JUDGMENT; AND THE WAY HE ACTED UNDER STRESS IN LIGHT OF THAT FOR FUTURE PERFORMANCE." DISCUSSION CONTINUED. LASTLY, CHAIRPERSON GREEN COMMENTED, "BUT I BELIEVE IN THE CIRCUMSTANCES THAT - THERE'S NOT ANY MITIGATING CIRCUMSTANCES AND MY -VIEW IS THAT WE SHOULD UPHOLD THE DISCHARGE AND DENY THE GRIEVANCE." FURTHER DISCUSSION. VOTE: BOARD MEMBER CLELLAND: NAY BOARD MEMBER KERB: AYE CHAIRPERSON GREEN: AYE MOTION CARRIED. CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 6 OF 9 ADJOURNMENT The Complaint Review Board Hearing adjourned at 2:11 p.m. RESPECTFULLY SUBMITTED: DA ELLE HARKER DEPUTY CITY CLERK CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 7 OF 9 APPI~)VEI~ I3Y: ~. .,, , D©ROTH~, ~,. fJ~tF.EP~, ESQUIRE CH,~>IRPERSON . LATHAM, SHUKER, EDEN & BEAUDINE, LLP 390 NORTH ORANGE AVENUE, SUITE 600 ORLANDO, FLORIDA 32801 DATE: //~ `1' EGG CITY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 8 OF 9 APPROVED BY: 1 __1~ MICHAEL P. CLELLAND, ESQUIRE 807 WEST MORSE BOULEVARD, SUITE 201 WINTER PARK, FLORIDA 32789 i DATE: / `' ~ ~ d~ C[TY OF WINTER SPRINGS, FLORIDA MINUTES COMPLAINT REVIEW BOARD HEARING -SEPTEMBER 25, 2008 PAGE 9 OF 9 APPROVED BY: r DANIEL J. KERB, HIEF WINTER SPRIN S POLICE DEPARTMENT 300 NORTH MOSS ROAD WINTER SPRINGS, FLORIDA 32708 DATE: %l~ - ~ / ' U~~