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03/31/1989 - Special Proceedings of the Special Civil Service Board Meeting of March 31, 1989. Joseph R. DeSantis Heuring ~ Present ': T~. Page 1 Johnnie Williams, Acting Chairman David Keyser, Member Syd Snair, Member (Orland) BiB Carroza, Member David Healey, Special Appointed Member H. Michael Laursen, Personnel Director Deborah Lally, Personnel Department Jeff Harper, Assistant Personnel Director John O. Hubbard, Esq., Independent Counsel for the Board William Sizemore, Esq., Attorney for the City Louis KwaU, Esq., Attorney for Joseph DeSantis Joseph' DeSantis Sid Klein, Police Chief / The meeting was called to order at 1 :08 P. M. 8111 Carroza moved to approve the minutes of the meeting of February 17, 1989. The motion was duly seconded by Dave Keyser and carried unanimously. Louis Kwan, attorney for Joseph DeSantis, asked to speak to the Board and his request was granted. Based on the fact the Civil Service Rules state three members constitute a quorum, Mr. Kwall objected to continuing the meeting scheduled for March 9, 1989, because only four members could attend that meeting . Mr. Kwall questioned Bill Carroza concerning the recent federal case on which he served as a juror. He asked whether Mr. Carroza would be partial in the DeSantis case since this case had involved two Hillsborough County deputies and a detective. Mr. Carroza assured Mr. Kwall this would not affect his decision. :', ~ .~ ":~~ Mr. Kwall questioned Dave Healey concerning his recent appointment as Executive Director of the Pinellas County Planning Council. Mr. Kwall asked if anyone connected with or employed by the City of Clearwater is his boss. Mr. Healey stated Commissioner Don Winner serves on the Council as one of thirteen members. Mr. Kwall asked Mr. Healey to disqualify himself based on the fact the rules state no one involved with or employed by the City of Clearwater can serve on the Civil Service Board. Mr. Healey stated his appointment was not effective until April 1, 1989. John Hubbard, attorney for the Board, read into the record Section 25.04 of the City Code. Mr. Hubbard' stated Mr. Healey's employment is not in any way connected with the administration of the City of Clearwater. No part of Mr. Healey's salary is paid by City of Clearwater funds. ", " " , ".-+. Mr. Hubbard stated the Board should make a motion if any members felt Mr. Healey should disqualify himself. No motions were made. Mr; KwaH renewed his request for a 30~day delay in order to issue subpoenas for witnesses and documents. William Sizemore, attorney for the City, objected on the basis the Board had ruled on this earlier. Mr. Hubbard advised the Board it had already ruled on this and had confirmed the Board's decision by memo dated Murch 6, 1989. " ~L .' ,;,Q Dave Healey moved to deny Mr. Kwall's motion for a 30-day delay based on the :>, I "determination of Mr. Hubbard. The motion was duly seconded I?y Syd Snair and carried unanimously. ,I". " " , ;1: II".' ""~' ", ',.. ,I:,,,, ','" ,'..:: >"'L, <." ") tl " . ", [:,'c ~.', ' \< '1' I'~i~<' :, I "I " :'J -\', " ,. ...' :. "'~.,-, , ' '"'' .. .":; ':'.'."':'-"'" J ',' ':<~"" ',";,' ....""3- ~~iiT:":/L, i .', '. ..: 'JI '"",,,< ,'" ", ""..', ", .. ','" ... """ "'" ... ,,'. :.'., , "" ' "'~, , ':')::::;;;;:~,,;.:/{,:,:;~ 'I"::':;':"':';~ ",<..,:-,::"":":::' ': ;::'::i:<,," ' :.)., ::" ",,:/:,'L.:,'k :::'(;:,',f:;i:..: ':,; . ">'", " ':", i .' ,);;,{"'~;"'" . .)./"<:;r . "":" :,.,..: ',', ',,:.,:V., ',::'" '",'" ~,:':"",',' ',";,',', :",',' :', ',. .,....';;":,'r?:'.(,':h,, 'c ...., ;',/:". ",',;'::.:\'::.,..:~~,:,',~.:,;:'..~i:..:.~;:~'~./,,'::' '. . '" .O;i."". " " , ' . p, " U' " , f :::,': ' '\','" ....: ii"" 'r",,,,:'," " ,,' " " 1: H~, . I' ,< :. / I' ,> , ."''"1" , , ,,' " f , .. I, " " " " '... ,'I. ',,',.'" t' .": ~ Proceedings of the Special CIvil Service Board Meeting of March 31, 1989. Joseph R. DeSantis Hearing Page 2 Mr. Kwall asked to proffer evidence on this issue to preserve it for the record since he may have a tota1ly different reason for asking for the delay at this time. Mr. Sizemore objected since his motion was denied by the Board. Johnnie Williams. Acting Chairman, solicited comments from the Board on this issue. Mr. Healey statcd that contrary to his motion he would grant Mr. Kwall five minutes to address this issue. Mr. Kwall was granted permission to proceed. Mr. Kwall stated he felt this hearing should proceed under the old rules that were in effect at the time of the last hearing. Denying them the right to proceed under the old rules is a denial of due process. If there is no due process. the proceedings must be dismissed nnd Mr. DeSantis reinstated. Mr. Kwall renewed his objection to the employee making his presentation first. proof is on the City. Making the employec present his case first is a dcnial There were no comments from the Board. Mr. Kwall statcd he would take the comment as a denial of his motion. The burden of of due process. Board's lack of ./ I, Mr. Kwall asked to poll the Board members as to whether or not they read the transcripts and exhibits. This request was denied by Mr. Williams. Mr. KwaIl moved to disqualify the whole Board on the basis it was tainted by the recommendation of the Hearing Officer that Mr. DeSantis be dismissed. The Board previously votcd to disregard this opinil>n. Mr. Hubbard asked the Board members if anyone felt he could o not make n fair roling, and all mcmbers agreed they would have no problem doing so. The City and the employee waived the reading of the charges. "O"'l , . '1.~. Michael Laursen, Secretary to the Board, presented the transcript and exhibits as part of the record. They were reviewed by Mr. Kwall. Mr. Laursen presented the Hearing Officer's Report and the exceptions to this order that were filed. Mr. KwaIl stated the transcripts and exhibits appeared to be complete. He objccted to the form of the Hearing Officer's Order since it included findings beyond her jurisdiction. Mr. Kwall was asked to make his presentation. Mr. Kwall prescnted his proffer on comparative treatment which was accepted by Mr. Hubbard. Mr. Hubbard requested the Board accept and make it part of the record. The were no objections to the proffer thereby making it a part of the record. Mr. Kwall made a lengthy presentation. He reviewed the Heywood incident which involved shop lifting and an injury to a security guard at Maas Brothers, and thc Vondereau incident which involved a domestic disturbance in which Mr. Vondereau vandalizcd his mother's home. In reviewing, both incidents, Mr. Kwall contended Mr. DeSantis did not use excessive force because his actions were justified in order to protect himself and the other individuals invol ved. Mr. Kwall reviewed Mr. DeSantis. personnel file and his excellent record prior to December, 1984. Contained in the file were several, letters of recognition and commendations for bravery from the City Manager and the Knights of Columbus. "~ ' ~II' , " ': /:3) :"0 " , ~ ~ . Proceedings of the Special Civil Service Board Meeting of March 31. 1989. Joseph R. DeSantis Hearing Page 3 Mr. Kwall raised the issue of deadly force versus excessive force. Mr. Kwall stated the general 'order under which Mr. DeSantis was charged addressed deadly force which is the actual discharge of a fireann. In none of the incidents was Mr. DeSantis' weapon ever fired. He stated Mr. DeSantis made errors in judgment but the acts were not malicious. Mr. KwaJl cited F.S. 776.06 which states that "a police officer is justified 10 use of any force which he reasonably believes is necessary to defend himself or another from bodily harm when making an arrest." Mr. Kwall addressed the fact Mr. DeSantis was never given a warning and he was not progressively disciplined as provided in the Guidelines for Disciplinary Action. In conclusion Mr. Kwall asked that when making a decision the Board consider I) how the guidelines concerning the use of force appear to the average officer; 2) the fact there was no progressive discipline applied in Mr. DeSantis' case; and 3) his outstanding record prior to these incidents. Mr. Sizemore addressed the Board on behalf of the City. He explained that citizens have the right to be treated fairly and be respected by Police Officers who are entrusted to carry a gun. a baton. and a badge. He presented these items to the Board. Mr. Kwal1 objected to the use of these props on the basis they were not a pan of the original record and the City had the opportunity to put these items into evidence at the time of the hearing before the Hearing Officer and chose not to do so. Mr. Kwall's objection was overruled. The Board members had no problem with the items remaining on the table and assured everyone their presence would not affect their decision. Mr. Sizemore stated the Board was here to decide whether or not the City was justified in dismissing Mr. DeSantis, not to decide who was lying and who was telling the truth. He addressed the different instances and explained why the City felt Mr. DeSantis' actions were wrong and the amount of force he used was excessive. Mr. Sizemore asked the Board to consider what type of Police Department they would want for the City of Clearwater and whether they wanted officers Uke Mr. DeSantis on the force. Mr. Kwall objected to Mr. Sizemore's argument on the b~sis that the only issue is what is the correct discipline. Mr. Sizemore cited a case involving North Bay Village in which the city was found negUgent in nOl dismissing a police officer who had a propensity for violence. Mr. Kwall again objected since this ,was not a pan of the original record. Mr. Sizemore addressed the issue of how the Guidelines for Disciplinary Action relate to this matter. He stated the use of excessive force is not outlined in the guidelines. He stated that in the guidelines there are offenses that warrant dismissal in addition to others that would require progressive discipline. At this point, Mr. Sizemore allowed Police Chief Sid Klein to address the Board. Mr. Kwall objected since Chief Klein bad not addressed the Hearing Officer and. therefore, this was nol a part of the record and he was told witnesses could not be called. Mr. Hubbard advised Mr. Kwall that the rules for procedure adopted by the Board state that allotted time could be divided by various representatives. Chief Klein gave his reasons why Mr. DeSantis was dismissed from' the Police Department. He stated Mr. DeSartjs was performing satisfactorily prior to these incidents. but his failure to ~ "0 ' , .:i ....,~ ;,>, (~"\\ . lJ. " ~ Proceedings of the Special Civil Service Board Meeting of March 31. 1989. Joseph R. DeSantis H~aring Page 4 dismiss him would have been an abdication of his responsibility as the Police Chief. Mr. Kwall objected to Chief Klein's comments. Chief Klein felt Mr. DeSantis should nOI be allowed to carry a gun in the Clearwater Police Depanmcnt. In concluding. Mr. Sizemore advised the Board members not to allow Mr. Kwall to intimidate them and to make a decision based on the facts of the case. Mr. Kwall asked that Mr. DeSantis be given five minutes in which to address the Board. Permission was granted. The meeting recessed at 3: II P.M. The meeting reconvened at 3:23 P.M. Mr. DeSantis spoke on his behalf indicating he acted appropriately in each incident. He advised the Board he had reported these incidents to his supervisors himself and agreed he may have made errors in judgment. He infonned the Board that at the same time he was dismissed Chief Klein had sought to have his State certification revoked. A panel of police officials ruled that he should keep his certification and his actions were not wrong. Both sides were allowed time to make a rebuttal and summation. Mr. Hubbard advised the Board of the aClion it must take. The members must first decide whether or not to accept the findings of fact of the Hearing Officer. The Board then must accept or modify the conclusions of law. Mr. Healey raised a question about comments made by the Hearing Officer in her report (contained on page 13) to the effect that the City was justified in dismissing Mr. DeSantis based on the use of excessive force. Mr. Hubbard agreed that this basically is a penalty and the penalty imposed is the sole decision of the Civil Service Board. Dave Healey moved tbat this sentence be struck and the Board Ignore It. The ,motion was duly seconded by B1II Carroza and carried unanimously. Mr. Healey stated he did not agree with the conclusion of law with respect to the Heywood incident. He did not think the facts supported the conclusion in this case. Mr. Heywood's testimony was tbat he intended to flee and Mr. DeSantis' drawing his gun was not excessive force to keep Mr. Heywood from doing so. Dave Healey moved to reject the conclusion of law offered by the Hearing Orflcer with respect, to the Heywood incident in that the findings or fact do no support a conclusion of excessive force. The motion was duly seconded by Syd Snair. After some discussion. a vote was taken on the motion. Dave Healey, Dave Keyser, and Syd Snair voted "aye;" Bill Carroza and Johnnie Williams voted tlnay!' The motion carried by a vote of 3 to 2. Syd Snair moved that the Board accept the findings of fact and Joseph ,DeSantis be suspended for 30 days. The motion was duly seconded by Dave Healey. Discussion ensued. Mr. Snair felt the dismissal was based on four incidents. IL was determined by the Hcaring Officer that dismissal was not justified as to two of the incidents. .{..1.~" ~.. -- , ,., '-'0 ~, . '> ;:.0, ~ ',' .. ~ ',. ,:() ~, ! !,'.' ..:~' ~~~;.:;, ,;:,',;' . ,\ ' .., ' .. , '\ ......1 !f ~ ,i "/,'" j :,' ,. '~~Ij r:,~'. ,:.,. ;!.I . ,>;",., \ ~ .' a' d", ':"{ , '-,' ,..::(/,:.', ". . .~" ' j. ~ ,. . " ,I, .. " ~~. . -I'~ , .t VI' Proceedings of the Special Civil Service Board Meeting of March 31, 1989. Joseph R. DeSantis Hearing Page 5 Mr. Hubbard reminded the Board ie it modifies the penalty, they need to be sure of what they want to occur. Depending on the Bcticn thc Board takcs, Mr. DeSantis might be entitled to back pay and benefits to 1985. Mr. Snair stated it was his intent for Mr. DeSantis to receive back pay. Mr. Williams asked Mr. Snair if he thought aU parties could easily co-exist after all this time. Mr. Snair did not feel this was a concern the Board should consider. Mr. Healcy stated although he seconded the motion he would not vote for it in its present fonn. He has a hard time imposing penalty on something that took place four years ago. He felt the Board had much more information available to it than the Police Chief had in 1985. Mr. Carroza asked Mr. Hubbard if the Board, could impose any penalty at all. Mr. Hubbard advised the members they could establish any penalty they felt appropriate. At the request of Mr. Kwant Mr. Hubbard reminded the Board members that they arc only dealing with one incident and the guidelines suggest a 3- to 5-day suspension for a first offense. A lengthy discussion ensued as to what would options were available to the Board by way of penahy, i.e. could it uphold the tennination and have Mr. DeSantis rehired. suspend him for four years, etc. ' Syd Snair amended his motion to a six-month suspension. Dave Healey as the one who seconded the motion accepted this amendment. A vote was taken on the motion. Syd Snair and Dave Keyser voted "aye;" Dave Healey, Bill Carroza, and Johnnie Williams voted "nay." The motion falled by a vote of 2 to 3. Bin Carroza moved that the Board accept the findings or fact and conclusions of law as amended and suspend Mr. DeSantis for two years from the effective date of the termination which was June 14, 1985. The motion was duly seconded by Dave Healey. Discussion ensued. Mr. Healey asked Mr. Laursen if there were provIsions in rules to provide for another probationary period if Mr. DeSantis is reinstated. advised him that an employee's performance is evaluated routinely but there is would provide for another probationary period. ' At the request of Mr. Sizemore. Mr. Hubbard advised the Board it could reinstate Mr. DeSantis without back pay and benefits. Mr. Carroza stated that since Mr. DeSantis had not worked in about four years, it was not his intention to bring him back with pay for aU that time. the personnel Mr. Laursen no rule that The meeting recessed at 5:04 P.M. It reconvened at 5:10 P.M. Discussion continued on the motion on the floor. Mr. Williams stated he would support an amendment to the motion that Mr. DeSantis be returned to non-patrol status in a administrative position. Mr. Healey felt the Board should not direct the Police Chief on how to staff his depanment. Mr. Snair expressed his concern that all the members felt the original penalty was too harsh but were unable to agree on what would be appropriate. Dave Healey amended the motion to read that Mr. DeSantis' penalty be a suspension from the original effective date of June 14, 1985, to April 10, 1989, with all pay and 'benefits suspended for that period and' as a condition of being placed back with the Police Department as a Sergeant, he be subject to returning as determined by the Police Chief with a performance review every 60 days for the initial 6-month period. The April 10th date is to afford the City Manager an opportunity to review the recommendation. Mr. Hubbard advised the Board this ,j' ":-'~ .1,'",:"";",'j,'~~':":"",:::,',':~"l,i",,,<,~,:','(\;,', . 11 .,." (. ' J" ...! 1'" l:{ ,.,<.':~,~'i';"','.,',~ " .~\~ ; ~!',,~~ \~~~: jl ~',' '. . "', ' . ~'~}:?\".' ." : .....;.:;?<;./~,)\::,:..:... ' .. ,.... '." "..., .":. :..,.. 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I " , , lo; ;:, " .. 1':/' " , ~ .,., ,,' 'I, \ ,: .' ;':,': ~ ..' 1';)', '"'" j: .,," . ~:' ' -\' , !/.... ' ;.' f:~r;~/' J:' _ '. ~. . , ., ' '1...., ' "':", <" It ~ " " ~: > ., ,~; ",.' :..,\' , ~~ . ,< . 't-. I . '. ~ ~ <', . , " /' : ' ,J;' .'., " ,":' , , ':' . : ' , .~.. ':~, . : >,1.: . f.:;,:'", ~,!i. ' ~'i-~\: '. " 11::. ': ':::;,,:~:> " ~. 1, ~ '.~. . ;~?~".~~ :~..::~. ",.. ... \ , ~;~k 1"~. : .,.~. :;" ~K,' ~~'iO" " "1: ' \". t.~.~ ) . V' :t{', , :.;' ~~;,'::-> "'., . h'~ "" -Jif:-'i.":' .'.: '~'l ~ ; '.... ' tl$t ~ >' . . ~t\;~t~~.j:L~ii><::. ' "'''' '> " Proceedings of the Special Clvll Service Board Meeting of March 31. 1989. Joseph R. DeSAntis Hearing I, Page 6 was not necessary and the suspension dates should run order of the Board. Mr. Healey so amended his motion. seconded by Bill Carroza. with was the duly concurrent The motion The Police Chief was aske~ how this reinstatement would affect his department. Mr. Hubbard advised the Board this sbould nol be a concern. \ Dave Healey restated his motion as follows: the findings of fact as prepared by the Hearing Officer and amended conclusions of law be accepted. the penalty imposed be a suspension effective from the original date of termination to the effective date of the Order of the Board. he be reinstated that date subject to any retraining and orientation detennined appropriate by the 'Police Chief, be be subject to performance review at intervals of 60 days for the first six . months of employment, and pay and benefits be suspended for the same period. A.. vote was taken on the motion. Dave Keyser. Dave Healey, Bill Carroza. ond Johnnie Williams voted uaye;" Syd Snair voted "nay.u The motion carried by a vote' of 4 to 1. The meeting adjourned at 5:25 P.M. Respectfully submitted, 'I, .)