STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSIONS CHARLES SWINDLE Employee, v.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Agency. ______________________________________/ EMPLOYEE CHARLES SWINDLE'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER Employee, Charles Swindle, by undersigned counsel, submits the following Proposed Findings of Fact, Conclusions of Law and Recommended Order, and states: I. STIPULATED STATEMENT OF FACTS 1. Trooper Charles M. Swindle was at all times material, a 6 year CASE NO.: CS-13-045

employee of DHSMV/Florida Highway Patrol employed on June 1, 2006, as a "law enforcement officer" within the meaning of Section 110.107(27) Florida Statutes. (T-24:9-10) 2. Trooper Swindle was dismissed from his employment effective March

15, 2013, pursuant to a hearsay dismissal letter dated March 15, 2013. (E-2)
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3.

The following Agency exhibits were stipulated into evidence: A-1

(Oath of Office signed by Charles Swindle on July 21, 2006; A-2 (FHP Policy Manual, Chapter 3.0 to 3.06 Code of Conduct, Code of Ethics; A-3 (FHP Policy Manual, Chapter 3.03 Code of Conduct: Regulations); A-4 (DHSMV Policy 3.06 Disciplinary Process) 4. "On November 19, 2012, Trooper Charles M. Swindle conducted

traffic stops on Interstate 10 in Madison County, Florida for speeding." (This is the only fact contained in the Dismissal Letter of March 15, 2013, (E-2), which the Employee would stipulate to. The remainder of the letter is deemed by the employee as hearsay and double hearsay.)(T-18:13-16; T-26:7-9) II. ADMINISTRATIVE NOTICE WAS TAKEN OF THE FOLLOWING 1. Section 316.646, Florida Statutes: "Security Required; Proof of

Security and Display Thereof; Dismissal of Cases (T-11:21-25) 2. 11:21-25) 3. Section 320.060(5), Florida Statutes: "Certificate of Registration; Section 318.18, Florida Statutes: "Amount of Civil Penalties." (T-

Possession Required; Exception (T-11:21-25) 4. 5. Section 839.13, Florida Statutes: "Falsifying Records" (T-11:21-25) "State Road 8 Is Interstate 10." (T-10:6-7)
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III. EMPLOYEES PROPOSED FINDINGS OF FACT THE TRAFFIC STOP OF REP MCBURNEY AND CITIZEN CARISTI 1. FHP Troop H Trooper Charles Swindle was working on Interstate 10

in Madison County as a Florida Highway Patrol Trooper on November 19, 2012, when he initially observed two vehicles traveling at 87 mph in a posted 70 mileper-hour zone. (T-75:2-18) 2. The first of these two speeding vehicles was being operated by Citizen

Steven Caristi of Lake Mary, Florida and the second was being operated by Florida Legislator Representative Charles McBurney of Jacksonville. (T-76:4-6) 3. When Trooper Swindle approached Caristi's vehicle, Swindle advised

him that "the reason why I'm stopping you is I just clocked you and the vehicle behind you doing 87 miles an hour in a 70." (T-32:12-16). Swindle told Caristi he would be back with him. 4. When Trooper Swindle approached McBurney's vehicle, Swindle

initially requested to see McBurney's drivers license and asked if there was any reason for the speed today? (T-33:1-6) 5. Rep. McBurney then lied to Trooper Swindle, saying "there is no way

I was going 87. I had it at 75." (T-33:7-9; T-76:23-25; T-77:1-2)

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6.

Trooper Swindle then requested McBurney to produce proof of his

vehicle registration. (T-33:15-19, T-77:18-19). 7. Trooper Swindle saw McBurney remove both his drivers license

from his wallet and proof of vehicle registration. Trooper Swindle did not see any proof of insurance card behind either the drivers license or the registration. (T78:10-13) 8. Trooper Swindle further asked McBurney, if he was a legislator

because Swindle recognized the legislators "vanity" license plate attached to the rear of McBurney's vehicle (T-78:21-25; T-82:22-24) 9. Rep. McBurney offered to show Swindle his "state ID" and pulled out

of his wallet a card identifying him as a member of the Florida Legislature. (T78:18-20). At that time, Swindle did not see any proof of insurance card behind the legislators ID card. (T-78:7-9) 10. Trooper Swindle next told Rep. McBurney that he would be right

back with him. (T-34:6-7) SUPERVISOR APPROVAL OF SWINDLE'S HANDLING OF THE MCBURNEY TRAFFIC STOP 11. FHP Troop H Sgt. Gary Dawson was also conducting a traffic stop on

Interstate 10 in the vicinity of the traffic stop being made by Trooper Swindle. (T84:4-10) Sgt. Gary Dawson was an immediate supervisor of Trooper Swindle for
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approximately the previous five years. (T-84:24-25; T-85:1) 12. Because he had stopped a Florida Legislator for speeding, Trooper

Swindle decided to call his Supervisor, Sgt. Gary Dawson on his cell phone and discuss with him how to handle the situation involving the traffic stop. (T-86:25; T-87:1-21) 13. Trooper Swindle called his Supervisor, Sgt. Gary Dawson to get his

supervisors approval of the way in which he intended to treat Florida Legislator, Rep. Charles McBurney during the traffic stop for speeding. (T-86, 133) 14. Trooper Swindle was afraid that if he did not call Supervisor Sgt.

Gary Dawson and "make it of record" of his intentions of what he was going to do, "if something did happen [his supervisor] it and wouldn't get blindsided by a Lieutenant or above or whatever." (T-86, 134) 15. Specifically, Trooper Swindle was afraid if he did not obtain the

consent and approval of the Supervisor Sgt. Gary Dawson, that he might suffer the risk of discipline by his superiors for his actions. (T-87) 16. During that cell phone call, Trooper Swindle specifically told his

Supervisor Sgt. Gary Dawson that Swindle intended to give Legislator, Rep. McBurney a warning instead of a speeding ticket and give him a ticket for no proof of insurance. (T-88, 134)
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17.

Swindle told Supervisor Sgt. Dawson "I'm going to stroke him.

[McBurney] because I didn't see his insurance card. I'll give him that ticket and warn him for speed. And I'm going to give him [Caristi]. I didn't see his registration and stroke him for the registration and give him a warning for speed, so I'm doing that for him [Caristi]. He's no better than him [McBurney]" (T-35:2425; T-36:1-5) 18. At that time, before Swindle took any action, Supervisor Sgt. Gary

Dawson told Swindle "he was fine with [Swindle's proposed action]." (T-88:4-7; T-135:8-9) Sgt. Dawson "Absolutely" was familiar with the tickets issued by Swindle to both McBurney and Caristi and agreed with them. (T-135:4-7) Sgt. Gary Dawson remarked: "were not getting any pay raises anyways." (T-35:19-20; T-88:12-13; T-134:15-17) 19. Sgt. Gary Dawson knew what tickets were issued and had no criticism

"whatsoever" of the way in which Trooper Swindle handled that traffic stop involving McBurney and Caristi. (T-136:19-23; T-137:14-20) 20. Trooper Swindle followed the unwritten FHP Policy of "Leniency

toward Legislators" when issuing the citations to Legislator Rep. McBurney and citizen Caristi. (T-79:19-25; T-80:1)

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21.

The citations issued by Trooper Swindle to Rep McBurney and citizen

Caristi did not allege false violations that the motorists did not commit. (T-89:2023; T-90:3-4) 22. Trooper Swindle followed the unwritten FHP Policy of "Leniency

toward Legislators" when issuing the citation to Legislator Rep Clelland. (T-89:1519) 23. Trooper Swindle did not issue a false citation to Legislator Rep

Clelland for an offense that he did not commit. (T-90:5-11) 24. The Agency introduced no testimony or evidence regarding a traffic

stop on Alicia Whitworth on or about November 15, 2012, for going 92 mph in a 70 mph zone while traveling on Interstate 10. 25. The Agency introduced no testimony or evidence or videotape of a

traffic stop showing that Trooper Swindle improperly issued a traffic citation to Alicia Whitworth which charged her with an offense that she did not commit. FHP INFORMAL UNWRITTEN POLICY TO CUT BREAKS TO LEGISLATORS ON SPEEDING TICKETS 26. Ordinarily FHP troopers exercise their discretion during traffic stops

for speeding motorists by issuing warnings and/or tickets for speeding. (T-76:9-12) 27. However, FHP Troopers who were members of Troop H had a policy

or practice concerning the handling of speeding tickets for Legislators prior to the
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traffic stops which are at issue in this case. (T-79:9-12) 28. The FHP policy provided that troopers could exercise their discretion

to be lenient on Legislators during traffic stops prior to the traffic stops which are at issue in this case. (T-79:9-12; T-156:5-8) 29. Troopers were told to be lenient on Legislators during traffic stops

because they hold pay raises in their hands prior to the traffic stops which are at issue in this case. (T-132:16-25; T-133:1-6; T-156:5-13) 30. The informal unwritten policy of cutting breaks to Legislators during

traffic stops for speeding was taught in the FHP Academy prior to the traffic stops which are at issue in this case. (T-132:9-14; T-156:5-13 ) 31. Troopers were taught in the FHP Academy that if you stop the

Legislator or U.S. Representative it would behoove you not to write them a speeding ticket primarily because they're the ones who hold your pay raises in their hands prior to the traffic stops which are at issue in this case. (T-132:16-23; T-135; T-156:5-13) 32. The informal unwritten policy of cutting breaks to Legislators during

traffic stops for speeding was also brought out in Troop meetings in Troop H of the FHP prior to the traffic stops which are at issue in this case. (T-132:16-23; T-135; T-132:16-23; T-135; T-156:5-13)
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33.

The informal unwritten policy of cutting breaks to the Legislators

during traffic stops for speeding was also discussed among the supervisors at Troop H of the FHP prior to the traffic stops which are at issue in this case (T-79; T-81:2-25; T-82; T-83:16-22;T-133:5-23, T-135:19-25) 34. The informal unwritten policy of cutting breaks to Legislators during

traffic stops for speeding was discussed among troopers at Troop H of the FHP (T82). The informal policy has been in existence for six years since Trooper Swindle has been a trooper prior to the traffic stops which are at issue in this case. (T-82:79) 35. Trooper Swindle has discussed the informal unwritten policy of

cutting breaks to Legislators during traffic stops for speeding with his superiors at Troop H prior to the traffic stops at issue in this case. (T-83:16-23) 36. Trooper Swindle has discussed the informal unwritten policy of

cutting breaks to Legislators during traffic stops for speeding with his Supervisor Sgt. Gary Dawson for five years prior to the traffic stops at issue in this case. (T85:2-11) 37. It is generally known among other troopers and supervisors of Troop

H that there is an informal unwritten policy of cutting breaks to Legislators during traffic stops for speeding while Trooper Swindle was a Trooper in Troop H. (TPage 9 of 35

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85:20-24) 38. In a prior Troop H meeting, FHP Col. Knight wrote the initials for the phrase "thou shalt not write your legislator" on the blackboard in an effort to stress the informal unwritten policy of cutting breaks to Legislators during traffic stops for speeding. (T-135:19-25; T-136:1-5) 39. The informal unwritten policy of cutting breaks to Legislators during

traffic stops for speeding was in effect from 1991 to and including 2013 when Sgt. Gary Dawson was an FHP Trooper and Sgt. NO "PROPER PROOF" OF VEHICLE INSURANCE and/or VEHICLE REGISTRATION for SPEEDERS 40. FHP introduced no competent substantial evidence that any of the

motorist speeders(Charles McBurney, Steven Caristi, Michael Clelland, and Alicia Whitworth), were in possession of "proper proof" of vehicle insurance and/or vehicle registration on the day of the traffic stops. Section 627.733, Florida Statutes (proper required vehicle insurance security); Section 320.0605 Florida Statutes (proper proof of vehicle registration); Section 316.646, Florida Statutes (proper proof of security, insurance and registration) 41. No statute imposes an absolute mandate upon a FHP trooper to always

ask the motorist for "proper proof" of vehicle insurance and/or vehicle registration.

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42.

FHP failed to prove a prima facie case of improper issuance of

citations to any of the motorist speeders (Charles McBurney, Steven Caristi, Michael Clelland, and Alicia Whitworth) by Trooper Swindle for offenses they did not commit. 43. The only evidence introduced by FHP to prove the motorist speeders

were in possession of "proper proof" of vehicle insurance and/or vehicle registration on the day of the traffic stops was inadmissible hearsay contained in the dashcam videotapes of the traffic stops of Charles McBurney, Steven Caristi, and Michael Clelland. 44. No dashcam videotape of the traffic stop of Alicia Whitworth was

introduced by FHP into evidence. FHP failed to prove even hearsay evidence that Alicia Whitworth was in possession of "proper proof" of vehicle insurance and or vehicle registration on the date of her traffic stop. THE OTHER TICKETS ISSUED TO LEGISLATORS 45. Trooper Swindle corroborated his testimony about the existence of an

unwritten informal FHP policy allowing troopers to "cut a break" to a speeding legislator to the introduction into evidence of tickets issued to legislators, other than those issued to Rep. McBurney and Rep. Clelland.(Employees Exhibits 34 and 35)
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46.

These tickets corroborated not only Trooper Swindle's Testimony as

to the existence of the policy, but also the credible testimony of Sgt. Gary Dawson, Sgt. William Griesbaum, and former Trooper Mark Urschler. 47. The contrary testimony by Trooper Matthew Rabun and Trooper

Michael Stallworth that no such policy existed was not credible and not corroborated by the other credible substantial competent evidence in the record. IV. PROPOSED CONCLUSIONS OF LAW A. The Agency (DHSMV-FHP) failed to bear its burden of proof of just

cause by a preponderance of the evidence for the dismissal of Trooper Charles Swindle because the Agency's proof consisted solely of hearsay, which does not fall under any hearsay exception. Harris v. Game and Freshwater Fish Commission, 495 So.2d 806,809 (Fla. 1st DCA 1986) (findings of the commission based solely on hearsay evidence will not qualify as competent and substantial evidence and even a parties failure to object to admissibility does not foreclose him from subsequently asserting that such hearsay evidence is incompetent to prove just cause) 1. The Agency had the burden of proving the basis for termination

and which burden never shifted as a matter of law to the employee. Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412
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(Fla. 4th DCA 1974) 2. The Agency alleged that Trooper Swindle "improperly issued a

traffic citation" to four motorists (Rep. Charles McBurney, Steven Caristi, Alicia Whitworth, Rep. Michael Clelland) who Swindle " falsely accused of offenses they did not commit." (Dismissal letter dated March 15, 2013)(E-2). These offenses included failure of the motorists to be in possession of "proper proof" of vehicle insurance and vehicle registration required by Florida law. 3. The Agency's entire testimonial case was comprised of the sole

credible testimony of a single live witness: Trooper Charles Swindle. Swindle credibly testified he did not request nor inspect any "proper proof" of vehicle insurance and vehicle registration from the motorists during the traffic stops. Therefore, Trooper Swindle's credible testimony is not sufficient to establish that any of the motorists were in possession of "proper proof" of vehicle insurance and vehicle registration documents required by Florida law during the traffic stops. 4. The Agency also failed to establish by alternative competent

substantial evidence that any of the four motorists were otherwise in possession of "proper proof" of vehicle insurance and vehicle registration documents required by Florida law.

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5.

The Agency neglected to introduce any essential evidence from

the four motorists themselves to prove the critical evidentiary link that the citations were improperly issued and/or falsely accused the motorists of offenses they did not commit. The Agency never introduced even a syllable of testimony from any of the four motorists of the critical link to establish "falsity" of the charges. 6. Specifically, the Agency introduced no testimony that the

motorists possessed during the traffic stops "proper proof" evidence of insurance coverage on their vehicles required by Section 316.646, Florida Statutes, or the "registration certificate or an official copy thereof" required by section 320.0605, Florida Statutes. 7. Nor did the Agency introduce into evidence certified copies of

"proper proof" of insurance coverage from the appropriate department for each of the four motorists. (Section 316.646, F.S. requires "such proof shall be either a uniform proof-of-insurance card in a form prescribed by the department, a valid insurance policy, an insurance policy binder, a certificate of insurance, or such other proof as may be prescribed by the department.") 8. Nor did the Agency introduce into evidence certified copies of

"proper proof" of vehicle registration possessed by each of the four motorists in question during the traffic stops. (Section 320.0605, F.S. requires that a
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"registration certificate or an official copy thereof") issued by the appropriate department shall be in the possession of the operator and shall be exhibited upon demand of any authorized law enforcement officer) 9. In fact, the record is completely devoid of any competent

substantial evidence that any of the four motorists were in possession of the "proper proof" required by the statutes of vehicle insurance and vehicle registration at any time before, during or after the traffic stops. 10. Without such competent substantial evidence of possession of

"proper proof" of vehicle insurance and vehicle registration by the four motorists during the traffic stops, the Agency failed to establish the "falsity" of the charges against the motorists. 11. The only other record evidence introduced by the Agency was

two compact disc (CD) videotapes taken from Trooper Swindle's DASHCAM camera in his squad car during the traffic stops of motorists Rep. Charles McBurney, Steven Caristi and subsequently Rep. Clelland. These videotapes are hearsay and contained double hearsay statements during the traffic stop of Trooper Swindle, Sgt. Dawson and the motorists. 12. The hearsay videotapes cannot be relied upon to support a

finding of fact that the four motorists were in possession of the "proper proof" of
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vehicle insurance and vehicle registration at the time of the traffic stops. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108,109 (Fla. 1st DCA 1977) (Agency action must be set aside if based exclusively upon inadmissible hearsay evidence); Alpha Eta Chapter of Pi Kappa Alpha Fraternity, 982 So.2d 55, 56 (Fla. 1st DCA 2008) (a fundamental ingredient of due process in any judicial or quasi-judicial proceeding requires the complaining witnesses to make their statements directly to the hearing officer and be cross examined rather than make an appearance through admissible hearsay) 13. Moreover, even if admissible, the hearsay videotapes of the

traffic stops are not competent substantial evidence to prove Trooper Swindle falsely charged the motorists with offenses they did not commit since the hearsay videotapes did not establish: a. Rep. McBurney's offered "proof of insurance" was

"proper proof", current, valid, and complied with the statute at the time of the traffic stop. For all we know, since McBurney lied to Trooper Swindle that he was not going 87 mph, it is not reasonable to infer that McBurney was truthful that his proof of insurance was current, valid and complied with the elevated "proper proof" requirements of the statute.

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b.

The other three motorists had "proper proof of insurance

and/or registration" that was current, valid and complied with the statute at the time of the traffic stop. In fact, this issue was not even discussed on the videotape with the other three motorists and they made no statements or offers that they were in possession of any such "proof" as did McBurney. c. Trooper Swindle ever saw and confirmed that McBurney

or the other three motorists were in possession of "proper proof" of vehicle insurance and vehicle registration that conformed to the statutes. (T-130:23-25; T131:1) MITIGATION DEFENSE B. Trooper Swindle asserts the defense of mitigation of his dismissal

based on the following: a. trooper b. c. Lack of the seriousness of the charges Disparate treatment as compared with similarly situated No prior record of severe discipline and exemplary service as a

troopers who also "cut breaks to legislators" during speeding traffic stops. d. Extraordinary circumstances of this case: supervisor's prior and

subsequent approval of Trooper Swindle's conduct

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e.

Absence of aggravating circumstances: no proof of falsely

accusing motorists of offenses they did not commit C. Trooper Swindle's prior record does not contain any episodes of

severe discipline. Trooper Swindle's Personnel File (Employee Exhibit E-39) was redacted to remove an episode of prior discipline in 2008, which was subject to a "Settlement Agreement" stating "this agreement shall not be considered precedent in any action before the public employees relations commission or any grievance proceeding relating to disciplinary action imposed by the Department." The agreement also provided "this action may be considered for purposes of either cumulative or progressive discipline should the employee be determined in the future, to have violated the agency standards of disciplinary offenses." In the case at bar, the agency has not sought to impose "cumulative or progressive discipline" upon Trooper Swindle, but rather has brought the instant charge as an isolated independent episode. D. Trooper Swindle's supervisor FHP Sgt. Gary Dawson credibly

testified: "ever since Trooper Swindle has been assigned to me, which was the beginning of his career with the patrol, Trooper Swindle has excelled in everything he's been asked to do. He's been a leader for DUIs in the state. *****But anything I've asked Trooper Swindle to do. He has done-he has met and gone beyond
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normal expectations of what I would expect him to do is a trooper. If any Sgt. on patrol had 10 men like Trooper Swindle, there would never be any problems as far as activity or anything like that." (T-140-141) Sgt. Dawson also wrote a favorable letter of recommendation (Employee Exhibit 37) on behalf of Trooper Swindle at the time he was employed with FHP. E. Trooper Swindle's supervisor FHP Sgt. Gary Dawson also credibly

testified that he was familiar with the informal unwritten FHP policy of leniency toward speeding legislators during traffic stops. (T-132-133) Sgt. Dawson was present during the traffic stop of Rep. McBurney on November 19, 2012. Prior to issuing the traffic citations at issue, Trooper Swindle disclosed to his supervisor FHP Sgt. Gary Dawson the way in which Swindle proposed to "cut a break" to the legislator and to citizen Caristi (T-135). FHP Sgt. Gary Dawson told Trooper Swindle that he was doing the right thing by the manner in which Swindle was issuing the traffic citations. (T-135-136) Dawson testified that there was no way Trooper Swindle could be criticized for falsifying a ticket to McBurney for no proof of insurance. (T-137) F. After dismissal charges were brought against Trooper Swindle,

supervisor FHP Sgt. Gary Dawson sent an e-mail (Employee Exhibit 36) to FHP Col. David Brierton (Employee Exhibit 34) stating that he felt the situation
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could've been handled at a much lower level, that it was a training error and there was no crime in no criminal intent involved in this case." (T-139) Sgt. Dawson further credibly stated: "I have worked with Trooper Swindle for the past six years and I know for a fact that Trooper Swindle is a very hard-working and dedicated trooper who has only the best interest of the patrol at heart. The Florida Highway Patrol is Trooper Swindle's whole life and everything he does revolves around the patrol. ***Please allow this letter to serve as a character reference for Trooper Swindle and my personal request to allow a good man retain his job and career with the patrol." G. This is the first case ever in which the FHP has sought to dismiss a

trooper for "improperly issuing a traffic citation." (Employee Exhibit 55) There is no competent substantial evidence that Trooper Swindle issued false charges against motorists for offenses they did not commit. In fact, Trooper Swindle could have imposed a $251 speeding ticket associated with four points on the drivers license of the speeding legislators, but chose to "cut them a break" by imposing a nonmoving violation associated with no points on the drivers license and only a $10 fine. This conduct is not serious enough to justify dismissal for the first time in the history of the FHP.

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H.

Further, the substantial competent record evidence shows that other

troopers have followed the unwritten informal FHP policy of "cutting breaks to legislators" and issuing the same traffic citations in the same fashion as did Trooper Swindle and none of the similarly situated troopers were disciplined or dismissed. (T-132, 135, 136, 137, 156-158). FHP Sgt. William Griesbaum credibly testified that "all through my career. I was told that it would be in your best interest not to write [legislators]"..."Because they control the purse strings." (T-156) Sgt. Griesbaum also credibly testified that he refused to comply with the request of an FHP Maj. to verbally discipline a trooper who wrote a ticket to a legislator in violation of the FHP policy of extending leniency in writing speeding tickets to legislators (T-157-158) Trooper Swindle has received unfair disparate treatment as compared with similarly situated troopers in similarly situated circumstances to this case. V. THE FHP IS GUILTY OF CONDUCTING A BAD FAITH PROSECUTION AGAINST TROOPER SWINDLE 1. FHP has no procedure in place to determine whether FHP troopers are

issuing false uniform traffic citations (tickets) for offenses which motorists have not committed. (T-211:20-25; T-212:1-5) 2. FHP only has a procedure in place for supervisors to "spot check" to

see that FHP troopers are filling out the paperwork. There is no procedure for a
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supervisor to double check that the tickets are properly issued for the offense committed. (T-204:13-24; T-205:1-9; T-209-213) 3. FHP initiated the investigation into Trooper Swindle's issuance of the

traffic tickets in the case at bar, based upon a complaint letter sent by Rep. Charles McBurney to FHP Col. David Brierton. (T-211:12-14) 4. But for the complaint letter sent to the FHP by Rep. McBurney,

Trooper Swindle would not likely have been investigated and dismissed from the FHP. (T-211:15-19) 5. After receiving the complaint letter, agency DSHMV Office of

Inspector General (OIG) conducted an "outcome determinative" investigation that was designed from the outset to find Trooper Swindle guilty of the dismissal charges. OIG conducted a "botched" investigation, which failed to even obtain sworn statements from Trooper Swindles supervisor FHP Sgt. Gary Dawson, who approved Swindles proposed method of issuing the citations at issue in this case. 6. The OIG Agency investigation also completely failed to make any

inquiry whatsoever into the existence of the informal unwritten "policy of leniency toward legislators" in speeding traffic stops. 7. The Agency DSHMV/FHP/OIG did not conduct anything resembling

a comprehensive investigation into the charges against Trooper Swindle and his
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defenses. Instead, the Agency stonewalled Trooper Swindle's protestations that he was only following the long-standing unwritten "policy of leniency toward legislators" which existed in FHP Troop H when issuing the traffic citations at issue in this case. FHP issued a blanket denial that such an informal policy existed at the time the charges were made, during the OIG investigation, and later at the PERC hearing. 8. FHP falsely accused Trooper Swindle of improperly issuing traffic

citations, which falsely accused motorists of offenses that they did not commit. In fact, Trooper Swindle, issued traffic citations, which were consistent with longstanding unwritten informal policy and approved by Trooper Swindle's supervisor FHP Sgt. Gary Dawson. 9. At the PERC hearing, FHP had the burden of proving the dismissal

charges alleging that Swindle issued citations containing false offenses which the speeding motorist did not commit. The FHP prima facie case required proof that at the time of the traffic stops, the speeding motorists were in possession of "proper proof" of vehicle insurance and/or vehicle registration. 10. FHP made no effort whatsoever to prove its prima facie case at the

PERC hearing with competent substantial evidence.

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11.

Instead, FHP never subpoenaed a single speeding motorist

(McBurney, Caristi, Clelland, and Whitworth) to testify they were in possession of "proper proof" of vehicle insurance and/or vehicle registration during the traffic stops. 12. Further, FHP never called a single speeding motorist (McBurney,

Caristi, Clelland, and Whitworth) to testify at the PERC hearing. 13. Moreover, FHP never introduced into evidence a single certified

public record of DSHMV showing the speeding motorists had in their possession "proper proof" of vehicle insurance and/or vehicle registration at the time of the traffic stops. 14. Therefore, at the PERC hearing, FHP never proved Trooper Swindle

issued false citations alleging offenses that the speeding motorist did not commit. 15. The sole live witness FHP called to testify at the PERC hearing was

Trooper Swindle, who testified in pertinent part as follows: a. Swindle did not issue false citations to the motorists for

offenses they did not commit. b. Swindle followed a long-standing unwritten policy of leniency

toward Legislators in traffic stops for speeding and which policy was known to the FHP longer than the length of his employment as a trooper (six years)
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c.

Swindle obtained the advance advice and approval of his

Supervisor FHP Sgt. Gary Dawson in the issuance of the citations to the speeding motorists d. Swindle never saw or confirmed any of the speeding motorists

had "proper proof" of vehicle insurance and or registration in their possession at the time of the traffic stops 16. FHP never introduced testimony from even a single FHP officer or

agent in its case in chief or rebuttal to refute the testimony introduced above by Trooper Swindle. 17. FHP relied in the PERC hearing solely upon inadmissible double

hearsay (the "dashcam" video of the traffic stops) to attempt to prove the truth of the critical element of its prima facie case, i.e., that the speeding motorists had in their possession at the time of the traffic stop "proper proof" of vehicle insurance and or vehicle registration. 18. FHP knew or reasonably should have known it did not have any

testimony to establish a prima facie case at the outset of the PERC hearing. 19. FHP knew or reasonably should have known it did not have any

documentary evidence to establish a prima facie case at the outset of the PERC hearing.
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20.

FHP knew or reasonably should have known that the employee

intended to introduce credible testimony from least two FHP Troop H Sergeants (Sgt. Gary Dawson and Sgt. William Griesbaum) to corroborate the expected credible testimony of Trooper Swindle and to refute the FHP's prima facie case. 21. FHP knew or reasonably should have known prior to the PERC

hearing it could not refute Trooper Swindle's expected credible testimony at the PERC hearing that: a. Trooper Swindle was following established unwritten FHP

policy of leniency toward speeding legislators when issuing the traffic citations in the case at bar. b. The traffic citations did not falsely accuse the motorists of

offenses they did not commit since there was no competent evidence that the speeding motorists had "proper proof" of vehicle insurance and/or vehicle registration at the time of the traffic stops. c. Trooper Swindle never saw "proper proof" of vehicle insurance

and or vehicle registration at the time of the traffic stops for any of the speeding motorists. d. Trooper Swindle obtained prior approval of his Supervisor FHP

Sgt. Gary Dawson regarding the manner in which Swindle issued the citations.
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22.

FHP knew or reasonably should have known prior to the PERC

hearing that the reason FHP could not prove a prima facie case of falsity/improper issuance of traffic citations at the PERC hearing was the fact that: a. FHP failed to list any of the speeding motorists (McBurney,

Caristi, Clelland, and Whitworth) on FHP's mandatory Prehearing Expected Witness List required to be filed in this case and/or to subpoena these witnesses to testify at the PERC hearing that they were in possession of "proper proof" of vehicle insurance and or vehicle registration at the time of the traffic stops. b. FHP failed to list any certified copies of public records

independently proving the speeding motorists had "proper proof" of vehicle insurance and/or vehicle registration at the time of the traffic stops on FHP's mandatory Prehearing Expected Exhibit List required to be filed in this case. 23. FHP knew or reasonably should have known that the findings

sustained in the OIG investigation did NOT include "falsely issuing traffic citations for offenses the motorist did not commit". Instead, the sole finding by the OIG investigation sustained the sole allegation: "That Trooper Charles Swindle improperly issued a traffic citation." (E'e Exhibit 55: "IA Cases with a Conduct Unbecoming Violation")

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24.

Based on the foregoing, it must be concluded that FHP participated in

this proceeding for an improper purpose, including intent to harass, embarrass and humiliate Trooper Swindle and to cause unnecessary delay in the prosecution of his appeal from his termination as an employee with the FHP. 25. When a party asserts a claim that is not supported by the material facts

necessary to establish the claim and/or would not be supported by the application of then existing law to those material facts, a reasonable attorneys fee may be ordered to be paid to the prevailing party in administrative proceedings pursuant to Sections 57.105(5), Florida Statutes. Eastern Industries, Inc. v. Florida Unemployment Appeals Commission, 960 So.2d 900 (Fla. 1st DCA 2007) (Section 57.105, can be the basis for award of attorneys fees by the trial court and the appellate court); Waddington v. Baptist Medical Center of the Beaches, Inc. 78 So.3d 114 (Fla. 1st DCA 2012) (A finding under Section 57.105(1)(a) or (1)(b) is tantamount to a conclusion that the claim was frivolous. When filed or later became frivolousA frivolous appeal is one which raised arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.) Gopman v. Dept. of Education, 974 So.2d 1208 (Fla. 1st DCA 2008) (Significantly, Section 57.105, Florida Statutes,
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does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported. See Wendys of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003); Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 418 (Fla. 1st DCA 2002); Florida Houndsman Association, Inc. v. Florida Fish and Wildlife Conservation Commmission, 96 So.3d 886 (Fla. 1st DCA 2012); University of Miami v. Esposito, 87 So.3d 803 (Fla. 3rd DCA 2012). PROPOSED CONCLUSIONS OF LAW NO EVIDENCE OF DISHONEST INTENT 27. Trooper Swindle's actions were taken with the prior advice and

consent of his supervisor FHP Sgt. Gary Dawson. There was no intent to defraud, intent to deceive, or intent to otherwise confer false charges upon the speeding motorists for offenses they did not commit. Swindle deserves an award of reinstatement, back pay, and attorneys fees. See Johnson v. Department of Children and Families, 739 So.2d 656 (Fla. 3rd DCA 1999)(Johnson told his supervisor of the arrangement he had made with Oliver Perez to stand in for him; there was no attempt to deceive or defraud the department)

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THE RECORD SHOWS SUFFICIENT EVIDENCE OF AGENCY CONDONATION OF TROOPER SWINDLE'S CONDUCT 28. The substantial competent record evidence shows that FHP was aware

of the unwritten policy that troopers "cut breaks" to speeding Legislators in the issuance of tickets. This is confirmed by the credible testimony of Trooper Swindle, Sgt. Gary Dawson, Sgt. William Griesbaum, and former Trooper Mark Urschler. FHP did not discipline other troopers who engaged in the same conduct. Trooper Swindle is entitled to an award of reinstatement, back pay, attorneys fees. See Department of Business and Professional Regulation v. Doyle, 750 So.2d 746, 747 (Fla. 1st DCA 2000)(the agency did not establish that it had disciplined or otherwise warned its employees that other violations would result in discipline, which would have constituted just cause to discipline appellee.); Doyle v. Department of Business and Professional Regulation, 713 So.2d 1040 (Fla. 1st DCA 1998) THE HEARSAY STATEMENTS IN THE DASHCAM VIDEOS ARE NOT COMPETENT EVIDENCE 29. The sole evidence relied upon by Agency FHP to establish the alleged

false charge of "no insurance" and/or "no registration" are the hearsay statements in the dashcam videos by the speeding motorists. For example, Rep McBurney is heard on the video tape: "you want my proof of insurance? I have it right here."
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(T-37) 30. There is no other competent substantial record evidence that the

speeding motorists were in possession of "proper proof" of vehicle insurance and or vehicle registration at the time of the traffic stops. Robinson v. Department of Health and Rehabilitation Services, 586 So.2d 1265 (Fla. App. 1st DCA 1991); Doran v. Department of Health and Rehabilitation Services, 558 So.2d 87 (Fla. App. 1st Dist. 1990). 31. The Agency FHP seeks to introduce the double hearsay statements

heard on the videotape for the truth of the statements made. While there may be an exception to the hearsay rule for the introduction of the videotape itself, there is no exception to the hearsay rule for introduction and evidence of the statements made by the speeding motorists on the videotape. The statements are incompetent to establish that the speeding motorists were in possession of "proper proof" of vehicle insurance and/or vehicle registration at the time of the traffic stops. Thus, agency FHP has failed to prove the essential ingredient of its prima facie case. Accordingly, there is no competent substantial proof of just cause to support the dismissal charges against Trooper Swindle. See Keen v. State, 775 So.2d 263,274 (Fla. 2000)(when the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is
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classic hearsay, even though the proponent of such evidence seeks to clothe the such hearsay under a non-hearsay label.); Banks v. State, 790 So.2d 1094, 1098 (Fla. 2001)(importantly, the state simply cannot point to any purpose for the admission of the statements, other than for the truth of the matter asserted therein..... Similarly, we conclude that the particular statements in question here did constitute inadmissible hearsay and do not fit within the "verbal act" doctrine.) VI. THE HEARING OFFICER ERRED BY EXCLUDING RELEVANT WITNESS TESTIMONY 1. The Agency FHP dismissed Trooper Swindle for "improperly issuing

a traffic citation." (Employee Exhibit 55) The allegation focused upon an unwritten informal FHP policy to "cut a break" to speeding legislators. (T-174) 2. The Agency FHP vehemently denied the existence of such an

informal FHP policy. 3. Trooper Swindle issued subpoenas to speeding legislators who were

"cut a break" in issuance of their speeding tickets by FHP troopers. The testimony of the speeding legislators was both relevant and probative of the issues in this case. 4. The Hearing Officer granted a Motion to Quash the Subpoenas of the

speeding legislators with leave to renew the motion for reconsideration at the PERC hearing. Trooper Swindle renewed his Motion to Subpoena the speeding
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legislators and which motion was erroneously denied by the Hearing Officer because the testimony of the speeding legislators was both relevant and probative of the issues in this case. (T-14:6-14) 5. The Hearing Officer also erroneously excluded relevant and probative

testimony from the following tendered/proffered witnesses: a. Madison County Sheriff Joe Peavey: Formerly employed 17

years as a FHP Trooper and would've confirmed the unwritten informal FHP policy to "cut a break" to speeding legislators in the same manner as the speeding tickets issued by Trooper Swindle in the case at bar b. Leon County Sheriff Larry Campbell: Who would've testified

that he has been stopped over the past 25 years by FHP troopers for speeding and never given a speeding ticket in accordance with the unwritten informal FHP policy to "cut a break" as a "professional courtesy" to fellow law enforcement officers in the same manner as Trooper Swindle "cut a break" to fellow firefighter Rep. Michael Clelland c. Expert Dr. George Kirkham: Prof. Emeritus at FSU of

Criminology/Law Enforcement who would have testified to the parameters of officer discretion during traffic stops and would've testified that Trooper Swindle's exercise of discretion was reasonable under the circumstances. (T-220-223)
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d.

FHP Trooper Kari Hilliard: who would've testified that she has

issued speeding tickets "cutting breaks" to legislators in the same fashion as Trooper Swindle in the case at bar, and was never disciplined/dismissed. (T-186188). VII. PROPOSED RECOMMENDED ORDER 1. Agency FHP failed to prove just cause for the dismissal of Trooper

Swindle's employment by competent substantial evidence. 2. Trooper Swindle introduced competent substantial evidence to

establish mitigation of the dismissal penalty selected by the Agency FHP. Trooper Swindle proved by competent substantial evidence the lack of seriousness of the conduct, disparity in treatment of other employees, a previous employment record of notable quality, the absence of any prior disciplinary record, and extraordinary circumstances which contributed to or diminished his ability to avoid the conduct alleged. 3. Trooper Swindle proved by substantial competent evidence that the

Agency FHP conducted a bad faith prosecution of his dismissal for the purpose of harassment, humiliation and unnecessary delay. The FHP's claim was not supported by the material facts necessary to establish the claim and was tantamount to a frivolous prosecution constituting a gross abuse of the Agency's
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discretion. 4. Trooper Swindle is entitled to reinstatement of his employment as an

FHP trooper, back pay to the date of dismissal, and an award of attorneys fees. Respectfully Submitted, /s/ Sidney L. Matthew SIDNEY L. MATTHEW, ESQ. Fla. Bar No.: 193496 SIDNEY L. MATTHEW, P.A. 135 S. Monroe Street, Suite 100 Tallahassee, Fl. 32301 Telephone: (850) 224-7887 Facsimile: (850) 681-3122 sidmatthew@earthlink.net Attorney for Employee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail and Electronic Mail on this 6th day of June, 2013, to Sandra R. Coulter, Neil Kirkman Building, Room A-432, Tallahassee, Florida 32399, sandeecoulter@flhsmv.gov.

/s/ Sidney L. Matthew Sidney L. Matthew

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