1 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 3 ALBERT L. PREVATT, SR., 4 Petitioner, 5 vs. Case No. 08-4911 6 COUNTY OF VOLUSIA, 7 Respondent. 8 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 9 TRANSCRIPT OF PROCEEDINGS HEARING BEFORE THE HONORABLE P. MICHAEL RUFF 10 ADMINISTRATIVE LAW JUDGE 11 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 12 VOLUME I (Pages 1 through 136) 13 DATE TAKEN: APRIL 22, 2009 14 TIME: COMMENCED AT 11:10 A.M. 15 CONCLUDED AT 4:38 P.M. 16 PLACE: VOLUSIA COUNTY COURTHOUSE 101 NORTH ALABAMA AVENUE 17 DELAND, FLORIDA 32724 STENOGRAPHICALLY 18 REPORTED BY: SHAWNA STIMSON SMITH, RPR, FPR COURT REPORTER and NOTARY PUBLIC 19 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 20 21 VOLUSIA REPORTING COMPANY 22 432 SOUTH BEACH STREET DAYTONA BEACH, FLORIDA 32114 23 T. 386-255-2150 F. 386-258-1171 WWW.VOLUSIAREPORTING.COM 24 25 VOLUSIA REPORTING COMPANY 2 1 APPEARING On Behalf of Petitioner: 2 CLIFFORD J. GEISMAR, ESQUIRE 2431 Aloma Avenue, Suite 150 3 Winter Park, Florida 32792 (407) 673-1087 4 (407) 673-0375 - facsimile 5 APPEARING On Behalf of Respondent: 6 NANCYE R. JONES, ESQUIRE Assistant County Attorney 7 123 West Indiana Avenue DeLand, Florida 32720 8 (386) 736-5950 (386) 736-5990 - facsimile 9 Others as may appear in the transcript 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VOLUSIA REPORTING COMPANY 3 1 C O N T E N T S 2 VOLUME I (Pages 1 through 136) 3 OPENING STATEMENTS 4 By Mr. Geismar 18 By Ms. Jones 20 5 6 PETITIONER'S CASE IN CHIEF 7 TESTIMONY OF OFFICER GREGORY B. COOK Direct Examination by Mr. Geismar 23 8 Cross-Examination by Ms. Jones 32 Redirect Examination by Mr. Geismar 36 9 TESTIMONY OF CAPTAIN KENNETH MODZELEWSKI 10 Direct Examination by Mr. Geismar 37 Cross-Examination by Ms. Jones 67 11 Redirect Examination by Mr. Geismar 79 12 TESTIMONY OF CAPTAIN NICKY DOFFLEMEYER Direct Examination by Mr. Geismar 84 13 Cross-Examination by Ms. Jones 115 Redirect Examination by Mr. Geismar 125 14 VOLUME II 15 (Pages 137 through 216) 16 PETITIONER'S CASE IN CHIEF (Cont'd) 17 TESTIMONY OF SERGEANT RODNEY L. BROWN Direct Examination by Mr. Geismar 139 18 Cross-Examination by Ms. Jones 141 Examination by the Court 143 19 Recross-Examination by Ms. Jones 144 20 TESTIMONY OF ALBERT PREVATT, SR. Direct Examination by Mr. Geismar 145 21 Cross-Examination by Ms. Jones 167 Redirect Examination by Mr. Geismar 189 22 PETITIONER RESTS 196 23 24 RESPONDENT'S CASE IN CHIEF 25 RESPONDENT'S MOTION FOR DISMISSAL 196 VOLUSIA REPORTING COMPANY 4 1 TESTIMONY OF DIRECTOR MARILYN FORD Direct Examination by Ms. Jones 197 2 RESPONDENT RESTS 205 3 CLOSING STATEMENTS 4 By Mr. Geismar 205 By Ms. Jones 209 5 CERTIFICATE OF REPORTER 216 6 7 - - - - - 8 PETITIONER'S EXHIBITS IN EVIDENCE 9 1 - VCDC 402 Report 25 10 2 - Memo of Captain Modzelewski, 8/23/07 -- 11 3 - Final Report 60 12 4 - Evaluation 110 13 5 - Memo 110 14 RESPONDENT'S EXHIBITS IN EVIDENCE 15 1 - Notice of Intent to Dismiss 213 16 2 - Notice of Dismissal 213 17 3 - Personnel Board Summary of Findings 213 18 4 - Order Denying Amended Petition for Writ of 19 Certiorari 213 20 (Reporter Note: All exhibits retained by 21 the Court.) 22 - - - - - 23 24 25 VOLUSIA REPORTING COMPANY 5 1 P R O C E E D I N G S 2 THE COURT: Good morning. Hearing will please 3 come to order pursuant to notice as to time and 4 place set for hearing in Case 08-4911, Petition of 5 Albert Prevatt against the County of Volusia. 6 Who appears for Petitioner? 7 MR. GEISMAR: Cliff Geismar, attorney for the 8 Petitioner, Your Honor. 9 THE COURT: Okay. And the Respondent? 10 MS. JONES: Nancye Jones for the County of 11 Volusia Department of Corrections. 12 THE COURT: Okay. I trust everybody got the 13 word about the change in starting time, I hope? 14 MS. JONES: Yes. 15 THE COURT: Okay. Are there any preliminary 16 matters or motions or stipulations? 17 MS. JONES: Just, Judge, I had filed a 18 judgment for summary final order that I wanted to 19 bring up before you before we get started, as well 20 as I have a motion in limine on some evidence and 21 some witnesses, as well. 22 THE COURT: All right. This is not a final 23 order case. It's a 120.57 Florida Statutes case. 24 Therefore, I don't enter a final order. So motion 25 for final order does not lie. It can be treated as VOLUSIA REPORTING COMPANY 6 1 a motion to dismiss. 2 MS. JONES: Okay. I did actually call it 3 that, Judge, so if it's appropriate to raise it 4 now, I'd like to do that. 5 THE COURT: You can do that. 6 MS. JONES: Okay. Judge, we filed this motion 7 to dismiss on the basis of several of the rules 8 that govern this proceeding, particularly the 9 120.545(b) requires that a petition under this 10 section be -- contain some specificity including 11 allegations, factual allegations, ultimate facts, 12 request for relief. 13 As set forth in my motion -- I don't know if 14 you had a chance to read it, so I don't want to 15 repeat myself if you've already read it, Judge, but 16 it's our position that the petition itself and the 17 amended petition which is before you, fails to meet 18 the requirements of the rules in terms of setting 19 forth a cause for relief. 20 In fact, it was difficult for me to prepare to 21 defend this case, Judge, because I really couldn't 22 tell what the issues were based on the way the 23 petition was worded. So we would request that 24 the -- or we assert that the petition should be 25 dismissed based on that fact. VOLUSIA REPORTING COMPANY 7 1 In addition, some of the allegations or the 2 way that the amended petition is worded, there are 3 some allegations that Mr. Prevatt believes he was 4 some type of a whistleblower, I think, because he's 5 alleging that there were charges cooked up against 6 him that would damage his credibility and that this 7 was because he was reporting wrongdoing that was 8 going on at the jail, which to me appears to be a 9 whistleblower allegation. 10 He has not -- to my knowledge, hasn't filed a 11 whistleblower complaint. I don't know if he has or 12 not, but this is not the appropriate proceeding to 13 pursue a whistleblower complaint. So to the extent 14 that his Petition alleges whistleblower-type 15 activity, we believe you don't have jurisdiction to 16 decide that. 17 He also alleges race retaliation, generally, 18 and again talks about cooked-up charges against him 19 to try to discredit his testimony, which, again, to 20 me is sounding like a whistleblower complaint, 21 Judge. And I don't think there are sufficient 22 facts to allege in the amended petition that he was 23 discriminated against or that there was an unlawful 24 discrimination practice taken against him because 25 of his race or any of the other enumerated factors VOLUSIA REPORTING COMPANY 8 1 in 760.10. 2 So it's our position, Judge, that he has 3 failed to fully meet the procedural requirements of 4 the rules but also to state a cause for relief or 5 substantially comply with the statutes to state a 6 cause for relief for you to hear today. So we 7 would ask that the petition and the amended 8 petition be dismissed at this time. 9 THE COURT: When was that motion for summary 10 final order filed? 11 MS. JONES: It was filed on the 16th of April. 12 And I actually called your office I think it was 13 Monday to make sure that you had it and she said 14 that it was on your desk. I have a copy of it if 15 you need it, Judge. 16 THE COURT: I don't think a copy of it's made 17 it to my file for some reason. 18 MS. JONES: Would you like a copy? 19 THE COURT: If you have an extra copy, that 20 would be great. 21 MS. JONES: (Tendering.) 22 THE COURT: Thank you. Yes, I do have it. 23 It's loose in the file. I'm sorry. 24 MS. JONES: Okay. 25 THE COURT: Thank you. VOLUSIA REPORTING COMPANY 9 1 Do you want to respond to the motion? 2 MR. GEISMAR: Very briefly, Your Honor. The 3 complaint in this case Mr. Prevatt filed with the 4 commission on February 19, 2008. There is a form, 5 an employment complaint of discrimination, on the 6 official form that's dated March 26, 2008. And 7 then Mr. Prevatt was given additional time to file 8 an amended petition, which he did by correspondence 9 dated May 29, 2008. 10 The allegations set forth by Mr. Prevatt in 11 the amended petition are very detailed as far as 12 alleged violations of the County. As far as the 13 whistleblower allegations, the whistleblower 14 allegations are not being proffered for purposes of 15 making a whistleblower complaint. 16 The whistleblower -- any whistleblower 17 allegations, and they won't be referred to as such, 18 are being proffered to show that there was a 19 hostile work environment that existed and there 20 were unfair labor practices and retaliation that 21 were going on. 22 As far as the demand for relief, Mr. Prevatt 23 has always -- has always requested reinstatement 24 with back pay and benefits. He believed this would 25 be what would be investigated during the VOLUSIA REPORTING COMPANY 10 1 investigation and that that would be the outcome of 2 this situation. So, in opposition, we think there 3 are certainly facts that are in dispute and that 4 the case should proceed. 5 THE COURT: Specifically, what are the grounds 6 for alleging discrimination? 7 MR. GEISMAR: The grounds -- 8 THE COURT: In addition to retaliation. 9 MR. GEISMAR: The grounds for discrimination 10 are that Mr. Prevatt's -- the incident involving 11 Mr. Prevatt was not investigated in compliance with 12 the Officer's Bill of Rights. It was not 13 investigated in a manner that it should have been 14 investigated in. And, as such, it was a different 15 investigation than the Department of Corrections 16 has taken with regard to other matters that have 17 come under Internal Affairs' investigation. 18 So he was discriminated in that he was given 19 no -- he was given no due process. He was found 20 guilty without an investigation, is what our claim 21 boils down to, just on -- just on bare conclusions. 22 He was not -- his witnesses were not interviewed, 23 he was not interviewed until after the fact, and he 24 was found guilty of insubordination without there 25 even being an investigation into the charge. VOLUSIA REPORTING COMPANY 11 1 And that's what the facts -- those are the 2 basic facts that we will be arguing. 3 THE COURT: As stated in the complaint filed 4 with the commission; is that right? 5 MR. GEISMAR: Yes, Your Honor. 6 THE COURT: So, in essence, he's alleging 7 disparate treatment based upon his race. 8 MR. GEISMAR: Yes, Your Honor. 9 THE COURT: For the factual bases that you 10 mentioned in your argument just then concerning the 11 nature of the investigation and so forth? 12 MR. GEISMAR: That's correct. 13 THE COURT: So you're contesting termination 14 on those grounds, as well as retaliation for 15 engaging in protected conduct, quote/unquote, 16 whistleblower actions? 17 MR. GEISMAR: That's exactly right. 18 THE COURT: But on the retaliation basis 19 because counsel is right, we're not here on a claim 20 under the whistleblower statute. 21 MR. GEISMAR: That's correct, and we're not 22 arguing it as such. We're arguing that the facts 23 and the activities contributed to the hostile work 24 environment and created a situation where 25 Mr. Prevatt was not given his due process in this VOLUSIA REPORTING COMPANY 12 1 situation. 2 THE COURT: All right. The motion to dismiss 3 will be denied without prejudice. 4 The petition for relief in the complaint filed 5 with the commission originally I think barely 6 satisfies the requirements of notice pleading, so 7 that through discovery, the basis for the action 8 can be adequately determined and defended against. 9 So on that basis, I'll deny the motion to 10 dismiss, and I will observe this case has been 11 filed and before me since about October 1st of 12 2008, and the motion was filed April 16th. So the 13 motion will be denied. 14 What about the motion in limine? 15 MS. JONES: Before we do that, Your Honor, can 16 I ask you a quick question? 17 THE COURT: Sure. 18 MS. JONES: We have a petition that was filed 19 as well as -- we have the complaint, the petition 20 and then the amended petition. Is it my 21 understanding that the amended petition and the 22 complaint, not the original petition that was 23 filed -- I shouldn't say original. The first 24 petition -- 25 THE COURT: The amended petition would be the VOLUSIA REPORTING COMPANY 13 1 pleading to proceed on. 2 MS. JONES: Okay. The complaint and the 3 amended petition both? 4 THE COURT: Yeah. But we're proceeding on the 5 amended petition. 6 MS. JONES: Okay. 7 THE COURT: The complaint facts -- unless you 8 say you didn't get notice of them. 9 MS. JONES: No. 10 THE COURT: -- also are subsumed in the 11 amended petition for relief, I think, in terms of 12 giving you notice of what the action's about. 13 MS. JONES: Sure. I understand that. I just 14 wanted to make sure I understood in terms of once 15 the amended petition is filed, similar to civil 16 court -- 17 THE COURT: That's correct, same thing. 18 MS. JONES: Okay. Got it. Okay. 19 Judge, I also filed a motion in limine under 20 120.5692(g) as to -- to ask you to exclude any 21 irrelevant, immaterial or unduly repetitious 22 evidence. I did so based on the complainant's 23 exhibit list which has numerous items -- 27 or 28 24 items -- many of which I believe are not relevant 25 to the issues that were raised in any of those, VOLUSIA REPORTING COMPANY 14 1 either the amended petition or the complaint. And 2 I understand the Court may have to reserve ruling 3 and rule on that individually as they attempt to 4 bring that forward, but I wanted to raise it with 5 you at this point. 6 Many of the things he lists here have to do 7 with similar -- what he alleges, are similar fact 8 evidence -- I think that's what he's alleging -- 9 based on other corrections officers that he 10 believes committed similar type offenses and 11 weren't treated -- the disparate treatment 12 argument. And we don't believe that that's 13 relevant in his case because he was not terminated 14 for the use of a racial slur but, as we present 15 evidence, and the Court will see what the actual 16 circumstances were, I assume. 17 So to the extent that the other evidence and 18 witnesses -- because I also filed a motion to 19 strike certain witnesses for the same reason, 20 Judge, that they are not going to be relevant to 21 what he has raised in his complaint and amended 22 petition. 23 So I more or less wanted to put you on notice, 24 Judge, that we believe that most of what he's 25 listed here and the witnesses that he has waiting VOLUSIA REPORTING COMPANY 15 1 to testify aren't going to have relevant 2 information for your consideration based on the 3 amended petition. 4 THE COURT: All right. 5 MR. GEISMAR: Two very, very brief points in 6 rebuttal. Number one, we're claiming that 7 personnel who committed much more egregious matters 8 were treated much more fairly than Mr. Prevatt. A 9 racial slur -- we're saying it pales in comparison 10 with some of the activity that's going on that has 11 not -- that has been given due process. 12 And as far as the exhibit list, I think we can 13 make that much easier for the Court and for 14 opposing counsel. We pared down the exhibit list 15 so that there are only four or five exhibits out of 16 the 26 that are listed that we intend on using. So 17 that shouldn't be as much of an issue for the 18 Court. 19 THE COURT: All right. And how many witnesses 20 do you anticipate? 21 MR. GEISMAR: We anticipate about six or seven 22 witnesses, six or seven -- well, maybe closer to 23 ten, closer to ten witnesses. 24 THE COURT: Okay. 25 MS. JONES: Judge, can I respond on the VOLUSIA REPORTING COMPANY 16 1 disparate treatment issue? 2 THE COURT: Sure. 3 MS. JONES: Unless I'm misunderstanding 4 something, an unlawful discrimination practice 5 wouldn't have occurred against Mr. Prevatt unless 6 someone -- unless he was treated a certain way 7 because of his race. In other words, people of the 8 same race that he believes committed more serious 9 infractions and didn't get similar treatment, that 10 may be a disparate treatment claim for federal 11 court, but I don't know that that's what is under 12 your jurisdiction to consider at this point. 13 THE COURT: Well, I don't want to anticipate 14 too much what his case in chief is going to be 15 about. If he's alleging racial discrimination, he 16 has a prima facie burden to show he's part of a 17 protected class, whatever his race is, and that he 18 was subjected to an adverse employment decision 19 such as termination, and that others similarly 20 situated, but without his protected class -- 21 generally that would be of another race -- were 22 treated differently and more favorably. 23 So I'll just see what the case is about. Just 24 recently getting the motion, I don't want to make a 25 blanket ruling and exclude the evidence. We'll VOLUSIA REPORTING COMPANY 17 1 take it on a witness by witness basis. 2 MS. JONES: Okay, Judge. Could I also ask 3 Mr. Geismar on the exhibit list which things they 4 are going to use so that I could sort of get my 5 file in order? 6 MR. GEISMAR: Yeah, we've got open -- we've 7 left open for possible use items 2, 3, 4, 7, 10, 8 12, 16, 17, 18, and 23. 9 MS. JONES: That's on the exhibit list, did 10 you say? 11 MR. GEISMAR: Yes. 12 MS. JONES: Because I thought you had said you 13 pared it down to about four exhibits. 14 MR. GEISMAR: It's more like eight to ten. 15 It's about nine, nine or ten. 16 THE COURT: Anything else preliminarily? 17 MS. JONES: No, sir. 18 MR. GEISMAR: We'd like to invoke the rule. I 19 believe that there is a witness in the room at this 20 point. 21 THE COURT: All right. Let's identify the 22 witnesses in the room. You're entitled to have one 23 party representative with you. 24 MS. JONES: This is my party representative, 25 Director Ford. She is listed on his witness list VOLUSIA REPORTING COMPANY 18 1 and my list, as well. She is the party 2 representative. Neither one these two are 3 witnesses, that I'm aware of. 4 THE COURT: Any witnesses in the room? 5 MR. GEISMAR: This is Al Prevatt. He is the 6 complainant. He is a witness, Your Honor. 7 THE COURT: I understand. 8 MR. GEISMAR: Nobody else is testifying. 9 THE COURT: Is that all? 10 MR. GEISMAR: Yes. 11 THE COURT: The rule is invoked, so if a 12 witness steps in the room, stop the proceeding and 13 let me know that and we'll admonish the witness 14 accordingly. 15 The parties want an opening statement? 16 MR. GEISMAR: Yes, Your Honor. 17 THE COURT: Go ahead. 18 MR. GEISMAR: Your Honor, this is a very 19 straightforward case. Do you mind if I remain 20 seated, Your Honor? 21 THE COURT: That's fine. 22 MR. GEISMAR: It's a very straightforward 23 case, and we intend to put our evidence on as 24 quickly as possible so Your Honor can understand 25 what the claims are that are being made and the VOLUSIA REPORTING COMPANY 19 1 nature of the wrong that's been done, of the 2 discrimination that's been practiced against 3 Mr. Prevatt. 4 Mr. Prevatt was convicted of, quote, convicted 5 of making a racial slur against an inmate without 6 there being any investigation done pursuant to the 7 Officer's Bill of Rights. Witnesses were not 8 interviewed. There were no statements taken. 9 Mr. Prevatt was not interviewed until late in the 10 process. 11 Mr. Prevatt was not given the courtesy -- and 12 I use that word because it's more than courtesy. 13 The law requires that the officer be -- be 14 interviewed during regular hours, if possible. 15 Mr. Prevatt was not given that courtesy and he was 16 charged with insubordination for not meeting to 17 discuss the matter, even though he was being called 18 outside of hours to meet. 19 Criminal charges were filed against 20 Mr. Prevatt, despite the fact that there was no 21 investigation done. It will be very clear to the 22 Court, when Mr. Prevatt's witnesses testify and 23 when the Court sees the memos that in effect did 24 convict Mr. Prevatt without any due process at all, 25 that he has been discriminated in the case, that VOLUSIA REPORTING COMPANY 20 1 there was a hostile work environment created, and 2 he was retaliated against with unfair labor 3 practices. 4 We are going to show the Court that there was 5 a rape case that was investigated in the court -- I 6 mean, in the corrections facility, that was handled 7 with the utmost of procedural care. Everything was 8 done right. Witnesses' statements were taken, 9 interviews were done. Mr. Prevatt was given none 10 of this -- none of these benefits. And his 11 termination is discriminatory, and he'll be asking 12 for reinstatement with back pay and benefits at the 13 conclusion of the proceedings, Your Honor. 14 THE COURT: Thank you. 15 Does the Respondent want an opening statement 16 at this time or at the outset of your case? 17 MS. JONES: Very briefly, Judge. 18 Mr. Prevatt was fired not for making a racial 19 slur but was in fact fired for insubordination, 20 tampering with witnesses. And the Court, I assume, 21 is going to hear about all of this. Willful 22 neglect in the performance of his duties, violation 23 of a reasonable order, violation of privileged 24 information, giving false statements to 25 supervisors. VOLUSIA REPORTING COMPANY 21 1 And there was an investigation conducted which 2 began with an allegation of a racial slur made by 3 an inmate. There was a very detailed Internal 4 Affairs' investigation done under the Corrections 5 Officers' Bill of Rights. Mr. Prevatt was 6 interviewed towards the end of the investigation in 7 part because he failed to show up for three 8 separate interviews that were scheduled. That's 9 what formed the basis for the insubordination 10 charge. 11 The bill of rights require the officer to be 12 interviewed later in the process so that the 13 officer can have the benefit of reading other 14 witnesses' testimony, and that's what happened in 15 this case. 16 It's our position, Judge, that he exercised 17 his administrative rights of appeal through our 18 Personnel Board. Our merit rules and regulations 19 of Volusia County provide for a personnel board 20 hearing. He exercised that right. The Personnel 21 Board and the county manager made the final 22 decision to uphold his termination. 23 He then sought administrative review and a 24 petition for certiorari, which was denied. We 25 believe that the action that was taken in his VOLUSIA REPORTING COMPANY 22 1 termination was justified and based on facts and 2 evidence that was presented. We believe that that 3 has been corroborated and upheld by the 4 administrative process that he went through, and I 5 don't believe that this is the appropriate forum 6 for him to continue to try to repeal the action 7 that was taken against him. 8 It doesn't sound to me as if he's got any 9 facts that establish any discrimination against him 10 or that the action that was taken in his case 11 amounted to unlawful discrimination under Florida 12 Statute 760.10. 13 Our position, Judge, at the end of the day, is 14 we don't believe he has sufficient evidence to 15 prove an unlawful discrimination practice and that 16 there is going to be a lot of attempt at putting 17 some smoke screen in here today for your 18 consideration. And we believe at the end of the 19 day, Judge, you'll find that he was not 20 discriminated against, and we'll ask that you 21 dismiss the petition at that point. 22 THE COURT: Thank you. 23 Petitioner may call your first witness. 24 MR. GEISMAR: Complainant would like to call 25 Officer Cook to the stand. VOLUSIA REPORTING COMPANY 23 1 (Whereupon, OFFICER GREGORY B. COOK was 2 duly sworn to tell the truth and testified as 3 follows:) 4 DIRECT EXAMINATION 5 BY MR. GEISMAR: 6 Q Would you state your name for the record. 7 A Gregory B. Cook. 8 Q And who do you -- are you currently employed? 9 A I work for the City of Port Orange Police 10 Department. 11 Q What do you do for them? 12 A I'm a police officer, sir. 13 Q Were you ever employed by the County of 14 Volusia Division of Corrections? 15 A Yes, sir. 16 Q And were you employed by them on July 7, 2007? 17 A Yes, sir. 18 Q And did you have a partner at that time? 19 A From recollection, I believe that the day in 20 question I was working with Officer Prevatt. 21 Q Did you file a report regarding the incident 22 that occurred on that date? 23 A Uh, yes, sir. 24 MR. GEISMAR: And I'd like permission to 25 approach the witness. VOLUSIA REPORTING COMPANY 24 1 THE COURT: Yes, sir. 2 BY MR. GEISMAR: 3 Q I'd like to show you a VCDC 401 -- a VCDC 402, 4 rather. And ask you if you recognize that report. 5 (Showing to counsel.) 6 A Yes, sir. 7 Q Is that the report that you made? 8 A Yes, this is my signature. 9 Q Okay. 10 MR. GEISMAR: I'd like to offer this report 11 into evidence as Complainant's Exhibit 1. 12 THE COURT: All right. We'll call it 13 Petitioner's 1. 14 MS. JONES: I'd just make an objection as to 15 relevance, Judge, on the record. 16 THE COURT: State your objection. 17 MS. JONES: I don't believe that it's relevant 18 to the amended petition that we're here for today, 19 and I don't think he's shown the relevance. He may 20 be able to at some point, but at this point I don't 21 think he's shown any relevance as to whether or not 22 Officer Cook made any report. We don't even know 23 what happened that day yet. 24 MR. GEISMAR: I'm going to ask him questions. 25 THE COURT: What's the relevance? What's it VOLUSIA REPORTING COMPANY 25 1 offered for? 2 MR. GEISMAR: This is offered for the purpose 3 of showing that -- the knowledge that this witness 4 had regarding the incident, and I'm going to also 5 show that he was not called upon to give a 6 statement or to give any further information after 7 filing this report. I think it has relevance to 8 the nature of the investigation that was, 9 allegedly, undertaken in this case, and it's very 10 telling in that regard. 11 THE COURT: All right. It's admitted. 12 Objection's overruled. 13 (Petitioner's Exhibit 1 was marked and 14 received into evidence.) 15 THE COURT: We have a disparate treatment 16 claim and a retaliation claim, so it could be 17 relevant. 18 BY MR. GEISMAR: 19 Q Do you have an understanding of what occurred 20 on that date with Officer Prevatt? 21 A Yes, sir. Is there any way I could review the 22 report or just have it with me so I can doublecheck my 23 notes? It has been some time since the incident. 24 Q Yes (tendering). Sorry about that. 25 And the question, when you've reviewed it, is VOLUSIA REPORTING COMPANY 26 1 whether you have an understanding of what occurred on 2 that date with Officer Prevatt. 3 A Okay. Yes, sir. 4 Q What was your understanding of what happened? 5 A Basically, what happened is a lockdown inmate 6 believed that he didn't get a shower because of Officer 7 Prevatt and -- 8 MS. JONES: I'd just object to the hearsay 9 nature of that. 10 THE COURT: Sustained. 11 Q You can continue. 12 A Okay. And I was the one that went in and 13 asked him for a shower and logged him for not getting a 14 shower. And the inmate -- there was some kind of 15 altercation when Officer Prevatt went inside the block. 16 Q Were you working with Mr. Prevatt at unit five 17 on that date? 18 A Yes. 19 Q And during this assignment, did you become 20 aware of a complaint that was being made against Officer 21 Prevatt by Inmate Williams? 22 A I don't understand. 23 Q Did this inmate make a complaint, that you're 24 aware of, against Officer Prevatt? 25 MS. JONES: Objection, hearsay, unless he made VOLUSIA REPORTING COMPANY 27 1 the complaint to him. 2 THE COURT: Well, that's overruled. It's a 3 preliminary question. Did he make a complaint. 4 The inmate's comments would be hearsay. 5 BY MR. GEISMAR: 6 Q Yeah, I'm not asking you for what he said. 7 A There was an incident where the sergeant had 8 to come up on the unit, but that's why we filled out 9 a -- I filled out the report. 10 Q Okay. Did you at any time on your shift hear 11 Officer Prevatt make a racial slur towards this inmate? 12 A No, sir. 13 Q And did you in fact document a possible motive 14 that this inmate may have had to develop a lie against 15 Officer Prevatt? 16 A I put here in my report that I believed that I 17 didn't hear anything. I was on the outside of the lock 18 box, but I did think that the reason the inmate was 19 acting that way was because he was upset with Officer 20 Prevatt about the shower. 21 Q And did you state earlier that you were the 22 one who denied him a shower? 23 A Well, I went in to ask him if he wanted a 24 shower. He was sleeping. 25 Q So it wasn't Officer Prevatt? VOLUSIA REPORTING COMPANY 28 1 A No, it was myself. 2 Q Okay. Were you ever interviewed by Sergeant 3 Modzelewski regarding this incident? 4 A He was -- 5 Q Captain Modzelewski, excuse me. 6 A No, sir. 7 Q Were you ever interviewed by Captain 8 Dofflemeyer regarding this incident? 9 A No, sir. 10 Q Was a statement ever taken from you by anyone 11 in Internal Affairs regarding this incident? 12 A Besides this report, no, sir. 13 Q Were you ever interviewed by anyone from 14 Internal Affairs regarding this incident? 15 A No, sir. 16 Q Did anyone from County Legal interview you 17 about this incident regarding Williams' allegations 18 after it occurred? 19 MS. JONES: I'll object to the relevance, 20 Judge. 21 THE COURT: What's the relevance of that? 22 MR. GEISMAR: To show that there was no 23 inquiry into this witness's knowledge by anyone on 24 the Respondent's side. 25 THE COURT: Overruled. VOLUSIA REPORTING COMPANY 29 1 BY MR. GEISMAR: 2 Q That means you can answer. 3 Did anyone from County Legal interview you 4 regarding this incident? 5 A I was called for a personnel board and I went 6 in Nancye Jones' office and -- 7 Q Are you referring to the personnel board 8 hearing that was held several months ago? 9 A It was prior -- I'm not positive when the date 10 was, but it was prior to the hearing. 11 Q Okay. So is it fair to say that you 12 prepared -- you were -- the County conferred with you 13 prior to that personnel board hearing? 14 A She just talked to me. 15 Q Right. 16 A I mean, it wasn't -- I don't know -- it wasn't 17 a formal interview. I don't know what you're -- 18 Q I understand what you're saying. I'm not 19 trying to trick you. I'm not trying to -- I'm not 20 trying to ask you something you don't know. 21 A It was more or less just a conversation. 22 Q This conversation, this was after the 23 investigation in this -- 24 A And I believe it was because Prevatt had put 25 me down as a witness, if memory -- if I can recall. VOLUSIA REPORTING COMPANY 30 1 Q This conference with County, this came after 2 the investigation into this incident had occurred, 3 correct? 4 A I'm assuming so because it was prior to a 5 personnel board. 6 Q In fact, it was about a year later, correct? 7 MS. JONES: Objection, leading. 8 A I don't recall the date. 9 THE COURT: Sustained. 10 MR. GEISMAR: Excuse me. 11 BY MR. GEISMAR: 12 Q Do you know how long after the investigation 13 into the racial slur this occurred, the meeting with the 14 County? 15 A That, I couldn't tell you offhand. I don't -- 16 I don't know. 17 Q Do you know if it was more than -- more than 18 six months later? 19 MS. JONES: Objection; asked and answered. He 20 said he doesn't know. 21 THE COURT: He can answer that. 22 A If I was to put a time on it, roughly, 23 probably, five or six months. I'm not completely sure 24 but it sounds -- 25 Q Okay. Thank you. VOLUSIA REPORTING COMPANY 31 1 Did you attempt to write a disciplinary report 2 on Inmate Williams on July 7th of 2007, if you recall? 3 A If memory serves me, I did write a 4 disciplinary report. I'm not -- it's been a while ago, 5 but I would say I think I did. I believe I did for the 6 disturbance. 7 Q Do you recall the nature of the report? 8 A No, not offhand. Like I said, I think it was 9 just from his behavior. 10 Q What behavior did you report on, if you can 11 recall? 12 A I believe he was kicking on the door. I'm 13 not -- banging on his lock down door, but I'm not 14 positive. But I think it was for some kind of 15 disorderly conduct. I don't have the report so I 16 can't ... 17 Q Do you have any knowledge as to whether 18 Sergeant Pugh (phonetic) may have ordered Officer 19 Prevatt not to write a report regarding the incident? 20 MS. JONES: Objection, hearsay. 21 Q (Continued) Any knowledge from whatever 22 source? 23 A I don't recall. 24 MR. GEISMAR: Thank you. I have no further 25 questions at this time. VOLUSIA REPORTING COMPANY 32 1 THE COURT: Cross? 2 MS. JONES: Yes, sir, thank you. 3 CROSS-EXAMINATION 4 BY MS. JONES: 5 Q Mr. Cook, your report in the second line says: 6 "I did not hear anything because I was at the lock box 7 observing through the window while he" -- and I assume 8 being Officer Prevatt -- "conducted wrist band check." 9 Is that accurate, that report that you wrote? 10 A Yes, ma'am. 11 Q So when you're talking about being at the lock 12 box, is that outside where the inmates are with Officer 13 Prevatt when this is happening? 14 A Yes, ma'am. 15 Q And is there a door between you two? 16 A There is a door and then the window. 17 Q Okay. So you can't hear what's going on 18 inside, can you? 19 A You can hear noise, but you can't decipher 20 what it is. 21 Q So isn't it true you don't know whether 22 Officer Prevatt made a racial statement or not because 23 you weren't inside at that time? 24 A Right. I don't know. 25 Q Okay. Okay. And your report reflects that VOLUSIA REPORTING COMPANY 33 1 you didn't hear anything; isn't that true? 2 A Right. 3 Q Okay. So in terms of an interview with 4 Internal Affairs, have you ever been in Internal Affairs 5 or were you in Internal Affairs at the Department of 6 Corrections? 7 A I'd been in one or two. 8 Q Okay. But you weren't working in Internal 9 Affairs when this Internal Affairs' investigation was 10 done, were you? 11 A I don't follow you. Working in? 12 Q You weren't assigned to Internal Affairs at 13 Department of Corrections, Volusia County Department of 14 Corrections, during this time period, July of '07 when 15 this incident happened. 16 A No, I wasn't assigned. You mean like being 17 in? 18 Q Working there -- 19 A Oh, no, no. 20 Q -- as an Internal Affairs' officer. 21 A No, no. 22 Q So you would have no knowledge, would you, as 23 to how the Internal Affairs' officers conducted this 24 investigation? 25 A That's correct. VOLUSIA REPORTING COMPANY 34 1 Q Is it true, then, you would have no knowledge 2 as to why they didn't interview you? 3 A That is correct. 4 Q Okay. And isn't it true it could be they 5 didn't interview you because your report says right 6 here: "I did not hear anything"? 7 MR. GEISMAR: Object; calls for speculation? 8 THE COURT: Sustained. 9 BY MS. JONES: 10 Q So you have no knowledge as to why you weren't 11 interviewed; isn't that true? 12 A I have no knowledge. 13 Q But you did, in fact, give testimony at the 14 administrative appeal hearing before the County's 15 Personnel Board on behalf of Mr. Prevatt. You did give 16 testimony there, didn't you? 17 A Yes. 18 Q And you were asked questions by myself and by 19 Mr. Prevatt about this incident, were you not? 20 A Yes, by yourself and Mrs. Prevatt. 21 Q Mrs. Prevatt, that's right. I'm sorry, I 22 apologize. 23 Earlier you said something about the inmate 24 acting a certain way because you thought -- I think you 25 thought he was acting the way he was acting because he VOLUSIA REPORTING COMPANY 35 1 didn't get a shower or something? 2 A (Witness nods head.) 3 Q Okay. When you say "acting that way," what 4 did you mean, if you recall? 5 A I guess the best way I could describe it, it's 6 more just like a tantrum. 7 Q Okay. 8 A Like not getting your way. 9 Q Okay. So isn't it true the inmate was banging 10 on the cell, kicking the cell, making a lot of noise 11 inside the cell block there? 12 A Yes, ma'am. 13 Q Isn't it true he also got other inmates riled 14 up to doing some of the same stuff? 15 A Yes, ma'am. 16 Q But you don't know, do you, why they were 17 doing that? 18 A No, ma'am. 19 Q So it was just speculation on your part that 20 it had to do with the shower not being given. 21 A Right, that was my -- yeah, assumption. 22 Q Because don't know, do you, whether or not 23 Mr. Prevatt made a racial slur, do you? 24 A I don't know. 25 Q Okay. VOLUSIA REPORTING COMPANY 36 1 MS. JONES: That's all I have, Judge. 2 THE COURT: Any redirect? 3 MR. GEISMAR: Yes, just a few questions, Your 4 Honor. 5 REDIRECT EXAMINATION 6 BY MR. GEISMAR: 7 Q And you stated you could hear noise from where 8 you were. 9 A Uh-huh. 10 Q And you felt compelled to write a disciplinary 11 report as a result of this. 12 A Well, he was kicking on the door, if memory 13 serves me right. 14 Q Okay. Now, the testimony you gave at the 15 administrative appeal hearing, that was the first time 16 you ever gave testimony on this, wasn't it? 17 A Minus this, yes, sir. 18 MR. GEISMAR: Nothing further. 19 THE COURT: You may step down, sir. Thank 20 you. 21 (Witness stands down.) 22 MR. GEISMAR: I'd like to call Captain 23 Modzelewski. 24 THE BAILIFF: He's around the corner, Your 25 Honor. VOLUSIA REPORTING COMPANY 37 1 (Whereupon CAPTAIN KENNETH MODZELEWSKI 2 was duly sworn to tell the truth and testified 3 as follows:) 4 THE COURT: Be seated. 5 THE WITNESS: Thank you. 6 DIRECT EXAMINATION 7 BY MR. GEISMAR: 8 Q Good morning. Would you state your name for 9 the record. 10 A Captain Ken Modzelewski. 11 Q And where are you currently employed? 12 A Volusia County. 13 Q And what is your position there? 14 A I'm a captain with the Department of Public 15 Protection. 16 THE COURT: Can you spell your last fame for 17 the court reporter. 18 THE WITNESS: Yes, sir. It's 19 M-O-D-Z-E-L-E-W-S-K-I. 20 THE COURT: Thank you. 21 THE WITNESS: Yes, sir. 22 BY MR. GEISMAR: 23 Q And in July of 2007, were you working in the 24 same capacity? 25 A Yes, sir. VOLUSIA REPORTING COMPANY 38 1 Q Okay. Do you currently teach any courses of 2 any nature? 3 A I do. 4 Q What type of courses do you teach? 5 A Criminal justice classes, some business 6 classes. 7 Q Do any of the courses that you teach deal with 8 procedure? 9 A Procedure in terms of what? 10 Q Investigation procedure. 11 A I've taught investigative classes, yes, sir. 12 Q In July of 2007, were you -- where were you 13 assigned within the correction department? 14 A I was doing Internal Affairs' investigations 15 for the Department of Public Protection. 16 Q Was anyone else assigned to that department, 17 as well? 18 A Yes. 19 Q Who was that? 20 A Captain Dofflemeyer, Rebecca Perryman and 21 Sergeant Shook. 22 Q Are you a certified law enforcement officer? 23 A Yes, sir. 24 Q Are you a certified correctional officer? 25 A No, sir. VOLUSIA REPORTING COMPANY 39 1 Q Do you teach Internal Affairs' classes as part 2 of your teaching? 3 A I've taught an Internal Affairs' class, yes. 4 Q Did you sustain the charges in -- can I refer 5 to Internal Affairs as IA -- Case No. 2007-07228 against 6 Mr. Prevatt, if you recall? 7 A I've worked several cases against Mr. Prevatt, 8 so you have to tell me which one you're referring to. 9 Q Okay. I'd like to show you a memo dated 10 August 23rd, 2007 from the officer -- from yourself to 11 Cindy Clifford. 12 MR. GEISMAR: If I may (showing to counsel). 13 THE COURT: Yes, sir. 14 BY MR. GEISMAR: 15 Q (Tendering.) 16 A Thank you. 17 Q Sure. I'll ask you if you recognize that 18 memo. 19 A Yes. Appears to be a final report on the 20 case. 21 Q Does that refresh your recollection as to 22 whether you sustained charges against -- against 23 Mr. Prevatt? 24 A That would be correct. 25 Q And is that a yes, you did? VOLUSIA REPORTING COMPANY 40 1 A Yes, sir. 2 MR. GEISMAR: I'd like to offer this memo into 3 evidence as Petitioner's No. 2, Your Honor. 4 MS. JONES: Judge, can I object to the 5 relevance, please, or ask that it be -- relevance 6 be established? 7 THE COURT: It will be identified as 8 Petitioner's 2. What's the basis of your 9 objection? 10 MS. JONES: Relevance. 11 MR. GEISMAR: I think I've established the 12 relevance. 13 THE COURT: Tell me what it is. 14 MR. GEISMAR: Well, the Officer Modzelewski 15 did not recall whether he had sustained the 16 charges. This refreshed his recollection, and this 17 is also his report on the issue. I think it's 18 relevant to the action that was taken against 19 Officer Prevatt and the procedures that we utilized 20 in the investigation that was done. And I intend 21 to ask him questions about this, Your Honor. 22 MS. JONES: Judge, just for the record, I 23 don't think he said he didn't recall. I think he 24 didn't know which investigation he was referring 25 to. VOLUSIA REPORTING COMPANY 41 1 MR. GEISMAR: Nevertheless, in any event, I 2 think it's clearly relevant to the investigation, 3 any investigation that may have been done with 4 regard to this incident. 5 THE COURT: All right. I'll see if it 6 connects up something relevant. Looks to me like 7 it's relevant to your argument concerning the 8 quality of investigations. 9 BY MR. GEISMAR: 10 Q Who was the initial complainant in regard to 11 Officer Prevatt's alleged misconduct? 12 A Procedurally, what happens is that if a 13 complaint is filed with one of the divisions of the 14 Department of Public Protection, then that particular 15 division director would forward that concern -- 16 MR. GEISMAR: Your Honor, would you direct the 17 witness to answer the question, Your Honor? I 18 appreciate the background and -- 19 A I'm trying to explain how a case comes to me. 20 Q It's not the question that I asked. 21 THE COURT: Restate the question. 22 Q I asked you who specifically was the initial 23 complainant in this case, sir. 24 A It would have been the administrator for the 25 Department of Corrections or Division of Corrections. VOLUSIA REPORTING COMPANY 42 1 Q And do you know who that was? 2 A Cindy Clifford. 3 Q Did you personally interview Inmate Williams? 4 A It would have been myself or Captain 5 Dofflemeyer. 6 Q Okay. I want to show you a transcript of the 7 County of Volusia personnel board hearing taken on 8 June 19th where you testified. 9 A Okay. 10 MR. GEISMAR: (Showing to counsel.) 11 MS. JONES: I don't think it's -- I don't 12 think that this is proper -- proper for -- he 13 hasn't denied that he did it. 14 MR. GEISMAR: He said he wasn't sure. I'm 15 going to ask -- 16 MS. JONES: He said it was either himself or 17 Captain Dofflemeyer. 18 MR. GEISMAR: I'm going to use this to refresh 19 his recollection, if I might. 20 THE COURT: All right. You can do that. 21 BY MR. GEISMAR: 22 Q I'd like you to look at this portion of the 23 transcript from the proceedings and ask you line 6 24 through 9, whether that refreshes your recollection as 25 to whether you've ever interviewed the inmate regarding VOLUSIA REPORTING COMPANY 43 1 this incident. 2 MS. JONES: You talking about Inmate Williams? 3 MR. GEISMAR: Yes. 4 A What line did you want me to look at? 5 Q Six through 9. I believe your answer is 6 contained within that. 7 A Okay. Well, it says no, I did not. 8 Q And does that refresh your recollection as to 9 whether you interviewed him? 10 A I guess it says if I didn't, I didn't. 11 Q Well, this is your testimony, correct? 12 A If you say so. 13 Q I don't say so. 14 A I haven't reviewed that document, nor have I 15 reviewed any documents associated with that case in 18 16 months, so I don't mean to be vague but I don't want to 17 be misleading. If I have an answer that I could 18 factually respond to you, well, I will, but I don't 19 recall all of the testimony that was provided in that 20 particular case. 21 Q Do you recall interviewing anyone else 22 personally in connection with this case? 23 A There were several individuals that were 24 interviewed. 25 Q Who, specifically, did you personally VOLUSIA REPORTING COMPANY 44 1 interview? 2 A Again, I'd have to have the case file to 3 recall. I don't remember all of the individuals that 4 were involved in the case. 5 Q Do you recall one individual who you 6 interviewed? 7 A There was some inmates. By name, I do not. I 8 handle thousands of cases. 9 Q But did you prepare for today's hearing before 10 you came in? 11 A I did not. My subpoena was to bring records 12 to this particular hearing, which I am not a custodian 13 of those records. 14 Q Did you write any reports regarding any 15 interviews that you may have had of witnesses regarding 16 this incident? 17 A My reports -- all the documentation that I 18 would have acquired through the investigation would have 19 been represented in the final report. 20 Q So other than the memo that you wrote and any 21 other memos that you may have written, in terms of 22 reports there wouldn't be anything else, correct? 23 A Not that I could recall. 24 Q Okay, thank you. 25 In your experience in Internal Affairs, is it VOLUSIA REPORTING COMPANY 45 1 usual for a complainant to be interviewed? 2 A Sometimes. 3 Q Now, with regard to your memo -- do you need a 4 copy of the memo that I had shown you previously? 5 A If you want me to make reference to it. 6 Q I'd like to, yes. 7 THE COURT: Is this Petitioner's 2 or -- 8 MR. GEISMAR: This is Petitioner's 2, Your 9 Honor. 10 THE COURT: All right. 11 BY MR. GEISMAR: 12 Q In regards to your memo, 8/23/07, did you -- I 13 think you stated you did sustain the misconduct of 14 Mr. Prevatt, Officer Prevatt, in that memo, correct? I 15 think that's already been established, but correct me if 16 I'm wrong. 17 A This is not the final. This was a memo that 18 was generated during the course of the investigation. 19 Q I didn't say it was a final report, sir. I'm 20 asking you questions about that memo. 21 A Okay. Go ahead. 22 Q Now, is it true that you sustained the 23 allegations of misconduct -- 24 A No. What I did is I clarified that there were 25 acts of insubordination that occurred. VOLUSIA REPORTING COMPANY 46 1 Q Well, if I direct your attention to the second 2 page, the last full paragraph, would you read that for 3 us, what you wrote in that last paragraph? 4 A The closure one? 5 Q Starts "Therefore." I'd just like you to read 6 that paragraph for the Court. 7 A "Therefore, in view of the information" -- I'm 8 sorry, I don't have my glasses -- "collected, their 9 investigative process was sustained," basically says. 10 That's referring to the insubordination. 11 Q You read a few of the things it says, but if 12 you don't have your glasses, let me read to you what it 13 says and see if you agree with it. 14 A Go ahead, thank you. 15 Q So, "Therefore, in view of the information 16 collected throughout this investigative process and the 17 officer's refusal to participate in this investigation, 18 the allegations appear to have merit and are sustained." 19 Is that -- do you believe that's -- 20 A Related to the insubordination, that is 21 correct. 22 Q Now, this memo does not specifically refer to 23 sustaining allegations simply related to 24 insubordination, does it? 25 A I think on the top it says in the subject VOLUSIA REPORTING COMPANY 47 1 matter, it says insubordination reference to the case 2 Albert Prevatt and in the subject line, top of the page. 3 Q The subject line may refer to it, but in fact 4 the memo refers to the incident in question, does it 5 not? 6 A It refers to the insubordination. 7 Q Now, at this point when you wrote this memo, 8 was the investigation completed at this point? 9 A No. 10 Q When you had written this? 11 A No. 12 Q Do you know what else was done after this memo 13 was written? 14 A The memo was initiated based on the fact that 15 there were acts of insubordination, and at that point in 16 time I felt in order to maintain a position where it 17 would -- I would not be biased because of the 18 insubordinate act, I reassigned, or asked that the case 19 be reassigned, to Captain Dofflemeyer, and that was 20 approved. 21 Q When you say the allegations appear to have 22 merit, what did you mean by "they appear to have merit"? 23 A No, no, when I determined that there were 24 three acts of insubordination, I did not want to be 25 biased in any of the findings that -- or there appear to VOLUSIA REPORTING COMPANY 48 1 be any bias. So at that point I felt in order to give 2 Mr. Prevatt every due process and to avoid any 3 impropriety or appearance, at that point I asked that 4 that case be reassigned. 5 Q But you did give an opinion, though. 6 A Based on the insubordination. 7 Q Okay. 8 A It wasn't opinion. It was fact. 9 Q Do you know what -- do you know who, if any, 10 which witnesses, if any, were interviewed before you 11 wrote this memo? 12 A I don't remember. I'm sorry. 13 Q Do you know if any witnesses were interviewed? 14 A Again, I don't recall. Probably -- if I could 15 clarify, probably not. We would have probably wanted to 16 take Officer, at the time, Prevatt's statement to 17 determine the extent of the allegation. And typically 18 what would be done would be to interview an officer to 19 try to determine what occurred or what information that 20 officer could provide to refute the allegation or to 21 clarify a complaint. And with the absence of having 22 that opportunity to interview Mr. Prevatt, then at that 23 point I would believe I would not have interviewed any 24 individuals. 25 Q I'm confused. Wouldn't it be customary to VOLUSIA REPORTING COMPANY 49 1 interview other witnesses before getting the 2 officer's -- let me finish, please. 3 A Okay. 4 Q -- before getting the officer's interpretation 5 or description of what happened? 6 A Didn't know who all the witnesses were, so we 7 try to get the information from the officer. He was 8 there. He'd be able to substantiate who we might be 9 able to interview to collect information. 10 Q Does any provision of the law, as you know it 11 in your practice, require you to interview witnesses to 12 an event? 13 A The new bill of rights determines that if 14 there are any known witnesses or individuals, that you 15 in fact take their statements and provide information to 16 the subject officer. The officer is offered an 17 opportunity to have access to all materials within the 18 file for review, and we always attempt to accommodate 19 that process. 20 Q Did Officer Prevatt offer to meet with you 21 during regular hours, during his regular hours at the 22 facility? 23 A He was initially given a letter of direction 24 to report. 25 Q I'm not asking you for the history. I'm VOLUSIA REPORTING COMPANY 50 1 asking you if he ever offered to meet with you during 2 his regular hours. 3 A It may have been after the second or third 4 letter that he may have made a request to do that. I 5 think maybe he did. 6 Q And did you agree to meet with him during his 7 regular hours? 8 A I always meet with the officers on their 9 hours. 10 Q So did you meet with him when he offered to 11 meet you during regular hours? 12 A I never talked with him. I never took a 13 statement from him. 14 Q And if he offered to meet with you during 15 regular hours, why didn't you take his statement? 16 A Captain Dofflemeyer took his statement. 17 Q Okay. Yet in the August 23rd, 2007 memo, your 18 opinion is that the allegation of insubordination 19 appears to be sustained, though, correct? 20 MS. JONES: Objection, Your Honor. I think 21 this witness has asked and answered and explained 22 what this document is. The Court has the document 23 for review. The document speaks for itself. 24 Just because Captain Modzelewski isn't saying 25 what they want him to say, they keep going back and VOLUSIA REPORTING COMPANY 51 1 asking the same question over and over, and we 2 believe the question's been asked and answered and 3 I object. And it's argumentative, as well. 4 MR. GEISMAR: Well, the Captain seems to be 5 going back and forth and I'm trying to really 6 figure out what he meant by this. 7 THE COURT: All right. Ask your question one 8 more time. 9 BY MR. GEISMAR: 10 Q You just stated you never met with Officer 11 Prevatt. What I'm asking you is that despite the fact 12 that you didn't meet with Officer Prevatt, in your memo 13 you did state that the allegations of insubordination 14 appear to be sustained, correct? 15 A That is correct. 16 Q And in this memo you also state that Officer 17 Prevatt's request to reschedule the interview had no 18 reasonable merit; isn't that correct? 19 A Officer Prevatt was given written 20 notification, as required by law, to appear in my 21 office, provide a statement related to an Internal 22 Affairs' investigation. He was not -- did not appear 23 for that. That was the first act of insubordination. 24 He was given a second opportunity in writing 25 to also appear and did not. That was the second act of VOLUSIA REPORTING COMPANY 52 1 insubordination. 2 Q When did you notify Officer Prevatt in writing 3 that he was supposed to be scheduled? 4 A That should be in the case file. There is a 5 written letter that he received. 6 Q Did Officer Prevatt ask if he could be 7 interviewed -- do you recall whether he asked if he 8 could be interviewed on August 28th, 2007 at 2100 hours 9 and not on the date that you scheduled? 10 A I don't recall. 11 Q Do you recall whether the date that you had 12 scheduled was outside of his normal hours? 13 MS. JONES: Objection; asked and answered. 14 THE COURT: Sustained. 15 BY MR. GEISMAR: 16 Q Did you ever advise Officer Prevatt that he 17 had been written up for insubordination? 18 A The memorandum would have went to the director 19 of the division, which at that time would have been 20 Director Clifford, to clearly outline the acts of 21 insubordination, at which time the director of that 22 division would deal with that process from that point 23 forward. 24 Q Is it common practice for you to give an 25 opinion about sustaining a claim without having given VOLUSIA REPORTING COMPANY 53 1 notice to the officer? 2 A If I give an officer a direct order and he 3 defies that order, that's, under the county merit 4 system, in itself constitutes insubordination. 5 Q Doesn't the law require you to inform the 6 officer of the charge that's being made against him? 7 A In that particular case I would have been the 8 complainant filing the insubordination claim to a 9 division director. Their officer was insubordinate to 10 my direction. 11 Q So you -- okay. Isn't it true that if an 12 incident is very serious, if it has very serious 13 ramifications of misconduct, that interviews can then be 14 done outside the course of regular hours? 15 A Yes. 16 Q And did this alleged racial slur, did you 17 believe that rose to that level where the interview 18 could be done outside of Officer Prevatt's regular 19 hours? 20 A No. He was -- the interview process by the 21 corrections policy was that an officer would be 22 interviewed at the end of their particular shift and 23 that that constituted a holdover and that they were in 24 fact, if they got off at 8:00 in the morning, that they 25 could be held over to 9:00 or 10:00 or 11:00, or VOLUSIA REPORTING COMPANY 54 1 whatever, and that that constituted continuation of the 2 shift. It was by the direction of the division, that 3 particular division, that those interviews were 4 conducted at the times they were set for. 5 Q Isn't it true that Officer Prevatt wasn't even 6 requested for an interview until about July 26th? 7 MS. JONES: Objection; leading. 8 THE COURT: Sustained. 9 MR. GEISMAR: I'm sorry. I'll withdraw the 10 question. 11 BY MR. GEISMAR: 12 Q Well, it's the same question. Do you recall 13 when Officer Prevatt would have been requested to 14 interview for the first time? 15 A Again, the letter, the written 16 documentation -- 17 Q That would show? 18 A -- would be in the case file. And I think 19 Mr. Prevatt had gotten all of those documents. I 20 believe he also indicated that he received the letter 21 and had some type of excuse on why he didn't respond. 22 Q I'd like to show you a memo that you wrote to 23 Cindy Clifford dated October 10, 2007 -- (showing to 24 counsel) -- and direct your attention to the second full 25 paragraph, and if you could read it -- VOLUSIA REPORTING COMPANY 55 1 A Okay. Do you want this one back? 2 Q Hold onto it for now, if you would. 3 And could you read that second paragraph. 4 A On July 19, 2007 -- this is larger print, by 5 the way, so I can see this one. 6 "On July 19, 2007, Officer Prevatt was issued 7 a directive to report to Internal Affairs' Unit on 8 July 26, 2007 in order to provide an official sworn 9 statement addressing the allegations filed against him. 10 That written directive was delivered to Officer Prevatt 11 by Captain Prince on July 20, 2007." 12 Q Is that the first time that he was -- Officer 13 Prevatt was requested an interview, if you know? 14 A As I know it. Again, I'd have to see the case 15 file to remember, but I would assume that probably would 16 be the first. 17 Q As a law enforcement officer, do you have the 18 discretion not to report a charge in a felony violation? 19 A On a felony? 20 Q Right. 21 A No, I do not. 22 Q Have you ever sustained an Internal Affairs' 23 violation on an officer who openly admitted to a felony 24 violation and not reported the violation? 25 A I always report the violations of any type of VOLUSIA REPORTING COMPANY 56 1 criminal conduct, whether it be a misdemeanor or a 2 felony, and that would be to the state attorney's 3 office. 4 Q As part of your duties as an Internal Affairs' 5 investigator, was it part of your responsibilities to 6 assign or to recommend disciplinary action against an 7 offending officer? 8 A No. The Internal Affairs' function is a 9 fact-finding mission. It's not a disciplinary process. 10 Q I want to refer you back to that August 23rd 11 memo that you have in your hand. 12 A The one I can't read? 13 Q Yes. 14 A Okay. 15 Q If you could look on Page 2, I'd like you to 16 try to read the third paragraph -- 17 A Do you have it in regular print as opposed to 18 this small print? I'd be glad to read the whole thing 19 for you. 20 Q Yeah, that's all I had. I can read it pretty 21 clearly. I'd like you to read, if you can, the third 22 paragraph that begins "Officer Prevatt's behavior in 23 this matter constitutes," if you can. 24 A Are we referring back now to the 25 insubordination act? VOLUSIA REPORTING COMPANY 57 1 Q I'm referring to your memo that you have in 2 your hand there. You said it's not your -- oh, gosh, 3 I'm confused a little bit now. You said it's not your 4 job to recommend discipline, so now I'm referring you to 5 this memo and I'm asking if you can just read that 6 paragraph from your memo. "Officer Prevatt's behavior 7 in this matter constitutes." I don't know if you can 8 read that. I'll read it to you if you can't. 9 A Go ahead. 10 Q "Officer Prevatt's behavior in this matter 11 constitutes violation of the Volusia County Division of 12 Corrections policy and procedure and rises to the level 13 of the officer being insubordinate. 14 "In addition, his actions are in direct 15 violation of the Volusia County merit system, Section 16 86-453, 1, 5, 13, 21. The serious [sic] of his action 17 warrants termination." Are those -- is that correct? 18 A If you say so. 19 Q Okay. 20 A I'll go along with that. 21 Q So you recommended disciplinary action based 22 on this charge that you made against Officer Prevatt, 23 correct? 24 A Yes, sir. 25 Q Okay. VOLUSIA REPORTING COMPANY 58 1 Other than your August 23rd memo, the one that 2 you're holding in your hand, were the insubordination 3 charges made against Officer Prevatt sustained in any 4 other manner? 5 A I'm sorry. I'm not sure what you're asking. 6 Q Is there any other -- was there any other 7 investigation of any nature done into these alleged 8 insubordination charges? 9 A Not at that point in time, that I know of. 10 They would have been incorporated into the continuation 11 of the open Internal Affairs' investigation. 12 Q So -- 13 A This was not an Internal Affairs' 14 investigation. This was an act of misconduct that 15 occurred during the processing of an Internal Affairs' 16 investigation. 17 Q Now, did you ever give Officer Prevatt -- I 18 think it's been asked and answered, I'm not sure. I 19 think you said you never did advise him of these 20 charges. 21 A I never got to talk to him. He never came to 22 see me. 23 Q But he did offer to meet with you, correct? 24 A After the fact, after multiple requests to 25 meet with my office. VOLUSIA REPORTING COMPANY 59 1 Q Did you ever request to be removed from this 2 case due to any bias on your part against Officer 3 Prevatt? 4 A I think I answered that already, sir. I asked 5 to be removed from the case to avoid any appearances 6 that there may be bias in the finding -- findings of 7 fact that were associated with the open Internal 8 Affairs' case. 9 Q Okay. However, did there come a time when you 10 assisted Captain Dofflemeyer in interviewing an 11 ex-inmate, a witness, Anthony Pletcher? 12 A I would assist -- I would accompany a female 13 Officer to interview a male inmate, absolutely. 14 Q So it's fair to say you did stay involved 15 somewhat, at least to that extent? 16 A If you're asking if I sat in on an interview, 17 I would say yes, I would have. 18 Q Did you ask Mr. Pletcher any questions? 19 A I'm sure I would have. 20 Q Does the Officers' Bill of Rights dictate that 21 all witnesses and the complainant be interviewed before 22 the suspect officer? 23 A I answered that already, sir. 24 THE COURT: Answer it again, please, sir. 25 THE WITNESS: Yes. VOLUSIA REPORTING COMPANY 60 1 BY MR. GEISMAR: 2 Q And Officer Prevatt was interviewed on 3 September 4, 2007, correct? I mean, is that correct? 4 A If you have a copy of the interview date, yes, 5 sir. 6 Q Okay. Do you still have that other memo? I 7 think I took it back from you, didn't I, that one? 8 A Yes, sir. 9 MR. GEISMAR: This is the same memo 10 October 10, 2007 (showing to counsel). 11 BY MR. GEISMAR: 12 Q And I want to show you -- I want you to look 13 at the last -- 14 A That's final report? Okay. 15 Q I want you to look at the last page and tell 16 me if that's your signature on the last page. 17 A Yes, it is. 18 Q So you signed off on the final report on this, 19 correct? 20 A I signed off on the fact that there was an 21 attestment saying that the information, as provided, was 22 to the best of my knowledge to be accurate. I think 23 that's -- the memo indicates -- it's initialed from 24 Captain Dofflemeyer, as well as myself. 25 MR. GEISMAR: I'm going to use this memo VOLUSIA REPORTING COMPANY 61 1 again, Your Honor. I'd like to offer this memo 2 into evidence as Complainant's -- Petitioner's 3 Exhibit 3, rather. 4 THE COURT: Any objection? 5 MS. JONES: I'm sorry. No, Your Honor. No 6 objection. 7 THE COURT: Three's admitted. 8 (Petitioner's Exhibit 3 was marked and 9 received into evidence.) 10 BY MR. GEISMAR: 11 Q At any point did you place criminal charges 12 against Officer Prevatt with regards to his conduct -- 13 misconduct in 2007? 14 A I filed a criminal complaint, yes, I did. 15 Q What were the charges? Do you recall? 16 A There were multiple charges. 17 Q Do you recall what they were regarding, what 18 they pertained to? 19 A If you give me that report back, I'll tell 20 you, because I think they're highlighted in that report. 21 Q The October 10th? 22 A Yes, sir. 23 THE COURT: Why don't we get your recollection 24 first, sir. 25 THE WITNESS: I'm sorry, sir? VOLUSIA REPORTING COMPANY 62 1 THE COURT: Continue your answer and give us 2 your recollection, whatever the extent of it is. 3 A Yeah, he was charged with interfering with an 4 investigation, perjury, the fact that he was attempting 5 to interview an inmate, which was causing disruption to 6 the case. There was a variety -- there was probably 7 eight or nine different charges, as I remember. 8 Q Do you know whether the State ever prosecuted 9 on those charges? 10 A They did not. 11 Q Do you know why? 12 A I do not. 13 Q Do you have any knowledge as to whether any 14 officers' logbooks contained false information 15 pertaining to the death of an inmate, Jack Nelson, in 16 December of 2006? 17 MS. JONES: Objection; hearsay unless he has 18 personal knowledge. 19 Q (Continued) Do you have any knowledge of any 20 nature? 21 A It seems to me I read some things in a 22 newspaper that related to some discipline associated 23 with officer logs. 24 Q Were you a witness in that case? 25 A No. VOLUSIA REPORTING COMPANY 63 1 Q Is it a felony to falsify a logbook or record 2 in a logbook? 3 A I'm not sure. 4 Q Do you know if charges were ever brought 5 against the individual? 6 A Not to my knowledge. 7 Q However, you felt that the charges brought 8 against Mr. Prevatt were warranted based upon this 9 situation? 10 A I didn't handle the case where there were 11 alleged log issues. That was investigated by the 12 sheriff's office and the Department of Law Enforcement, 13 Florida Department of Law Enforcement. It was not 14 investigated by the Internal Affairs' Unit. 15 Q But the incident stemmed in your department, 16 though, correct? It arose out of your Department of 17 Corrections? 18 A It arose out of the Division of Corrections. 19 There was an inmate death. Protocol was the lead agency 20 in conducting a criminal investigation associated with a 21 death of an inmate would be handled by the sheriff's 22 office and then the Department of Law Enforcement would 23 review that case file. The Internal Affairs' office 24 would be a conduit of information to those two support 25 agencies. VOLUSIA REPORTING COMPANY 64 1 Q Do you recall a rape that occurred in the 2 correctional facility November of 2008? 3 MS. JONES: Judge, could we ask for some 4 clarification as to -- that's pretty broad -- a 5 rape that occurred in Department of Corrections in 6 November 2008. Are we talking inmates, 7 correctional officers, allegations of that? 8 THE COURT: Give him a more detailed question 9 so he'll know what you're talking about. 10 BY MR. GEISMAR: 11 Q Do you have any knowledge regarding an inmate 12 that was raped in November 2008, regarding an 13 investigation into an inmate rape in 2008? 14 A I didn't conduct an investigation, no, sir. 15 Q Did you have anything to do with that 16 investigation? 17 A I was reassigned in December. The first week 18 of December, I believe, I was reassigned out of the 19 corrections office to the DeLand office, and two 20 weeks -- most of November I was out on leave visiting my 21 ailing mother in New Jersey, so I didn't conduct many 22 investigations, if any, in November. 23 Q Did you start that investigation? 24 A I wasn't even there. 25 Q At the time it happened you weren't there? VOLUSIA REPORTING COMPANY 65 1 A If -- I don't remember any rape investigations 2 in November of 2008 that I was directly involved in. 3 Q Did Director Ford at any point ask you to 4 investigate an inmate rape in November of 2008? 5 MS. JONES: Objection; asked and answered. 6 THE COURT: Overruled. 7 A If Director Ford would have requested me to 8 conduct an investigation at that point, it would have 9 been assigned to Captain Dofflemeyer. 10 Q Do you have any recollection of him asking 11 you? That was the question. 12 A I don't remember that, sir. 13 Q Did Director Clifford ever ask you to initiate 14 an investigation regarding the falsified logbooks in the 15 death of the inmate, Nelson, who died in December 2006? 16 A No, sir. 17 Q You were never asked to initiate an 18 investigation regarding that matter? 19 A You asked me if Director Clifford asked me to 20 do it. She did not. 21 Q Did anyone ask you to initiate an 22 investigation? 23 A No, sir. 24 Q Did you report, at any point, to Investigator 25 Johnson that these officers had lied in the VOLUSIA REPORTING COMPANY 66 1 falsification of their logbooks while the criminal 2 investigation was still ongoing? 3 A Officer Johnson? 4 Q Did you report to the investigator for the 5 sheriff's office that any officer had falsified the 6 logbooks in the inmate death, in connection with the 7 inmate death, while the criminal charges were pending? 8 A I don't recall any conversation -- the 9 sheriff's office would collect documentation and there 10 might be rhetoric between the sheriff's office and I, 11 but I don't recall any conversations between the 12 investigator about logs, unless he was asking for 13 clarification on how they're initiated. 14 Q Did you report those officers who falsified 15 their books to the sheriff's department on criminal 16 charges? 17 A I think I already said that I wasn't -- I 18 didn't have information that they did that. 19 Q Did there come a time when you did find out 20 that the officers had falsified their logbooks? 21 A It appears to me that I heard about it that 22 when Director Clifford was going to be issuing 23 disciplinary action against some officers for that, is 24 when I probably had the greatest knowledge. 25 Q Did you open an Internal Affairs' VOLUSIA REPORTING COMPANY 67 1 investigation at that time? 2 A I don't initiate Internal Affairs' 3 investigations. I tried to explain that at the 4 beginning. The cases are assigned to the Internal 5 Affairs' Unit from a division director. If the 6 division -- there's seven divisions of our -- of Public 7 Protection. If a division director requests an internal 8 investigation, then I conduct it. 9 Q Do you know if an Internal Affairs' 10 investigation was conducted at that time? 11 A I don't know if there was or not. 12 Q Were these falsifications in the logbooks, 13 were they -- do you have an understanding as to whether 14 they were felonies or not? 15 MS. JONES: Objection; asked and answered. He 16 said he didn't know. 17 THE COURT: Sustained. 18 MR. GEISMAR: I have no further questions at 19 this time. 20 THE COURT: Cross? 21 MS. JONES: Thank you, Judge. 22 CROSS-EXAMINATION 23 BY MS. JONES: 24 Q I'm going to give you a copy of the document 25 that was admitted into evidence. I believe it was VOLUSIA REPORTING COMPANY 68 1 Petitioner's 3 (tendering). 2 Is this what is considered the final report on 3 the Internal Affairs' investigation involving 4 Mr. Prevatt that began with the racial slur allegation? 5 A Yes. 6 Q And this document has both your names and 7 Captain Dofflemeyer's names on here. Isn't it true that 8 you both completed this report because you had actually 9 initiated the Internal Affairs' investigation based on 10 the racial slur allegation of the inmates, but then had 11 to transfer it or ask that it be transferred to Captain 12 Dofflemeyer because Mr. Prevatt had been insubordinate 13 to you in not responding to requests for interview? 14 A That is correct. 15 Q And isn't it true that at the time you 16 initiated the Internal Affairs' investigation, it was 17 based on written statements from inmates that 18 Mr. Prevatt had made some inappropriate comment that 19 they felt had racial slurs? 20 A Correct. The Division of Corrections gathered 21 some 12 or 14 written statements from inmates, and that 22 was the basis of the complaint. 23 Q Okay. So that's what you initially got to 24 start this Internal Affairs' investigation. 07-07228 25 began with those complaints from the inmates; is that VOLUSIA REPORTING COMPANY 69 1 correct? 2 A Yeah, those complaints would have went to the 3 division director. They would then determine if it 4 warranted further investigation and then would direct an 5 internal, and that's exactly what occurred. 6 Q Okay. So it was assigned to you according to 7 this report, I believe, July 10 of 2007. Does that 8 sound right to you? 9 A That should be accurate, yes. 10 Q Okay. And is it your testimony that you then 11 initially, because it was an inmate complaint against an 12 officer, attempted to get ahold or to interview 13 Mr. Prevatt, to get his side of the story, more or less? 14 A Yeah, it's pretty much a standard protocol 15 that inmates complain about anything and everything. 16 Some of it's true, some of it's not. So you always try 17 to make a determination when an allegation is filed 18 against an officer that it's just not retaliatory 19 behavior that's coming from an inmate against the 20 officer because of some, maybe, prior type of discipline 21 or prior type of direction. 22 So to ensure that there is no animosity or to 23 ensure that a complaint has some substance, then you 24 would try to get the officer to verify, validate or 25 support, or negate the allegation. VOLUSIA REPORTING COMPANY 70 1 Q Okay. And isn't it true in this case that you 2 attempted to set up three separate interviews with 3 Mr. Prevatt? He was delivered notice of those 4 interviews through proper channels and signed a receipt 5 for those notices to appear and he did not appear on any 6 those three occasions to be interviewed by you so you 7 could get his side of the story; isn't that true? 8 A Officer Prevatt was in fact, yes, given three 9 formal, written directives to participate in the 10 Internal Affairs' review process. We -- 11 Q Okay. I'm sorry to interrupt you. Because I 12 really just want -- 13 A Yeah, I just want to clarify the signing. 14 Sometimes they'll sign for the letter, or sometimes 15 they'll have the senior officer do an incident report 16 that would document that they made the delivery. 17 Q Okay. So in this case it may have been one or 18 the other? 19 A Correct. 20 Q Okay. But don't you have independent 21 recollection right now? 22 A Right. 23 Q But you do remember, don't you, getting notice 24 or getting proof that he had received notice of the 25 interviews that you were setting up with him? VOLUSIA REPORTING COMPANY 71 1 A Absolutely. 2 Q And isn't it true that this document that is 3 the August 27th document, the one that's hard to read, 4 August 27, 2007 -- isn't it true that this was more or 5 less an interim report of the insubordination acts of 6 Mr. Prevatt that you provided to Director Clifford? 7 A That is correct. 8 Q And was this report to document those 9 instances of insubordination for her? 10 A That is also correct. 11 Q Okay. And you don't have the authority to 12 take any disciplinary action against anyone, do you? 13 A I do not. 14 Q And you did not terminate Mr. Prevatt, did 15 you? 16 A I did not. 17 Q Okay. So when you supplied this report to 18 Director Clifford, isn't it true that she asked that -- 19 well, first that you asked her to reassign the case to 20 Captain Dofflemeyer, and, secondly, that she asked that 21 he be -- that an attempt be made to interview 22 Mr. Prevatt, another attempt be made to interview 23 Mr. Prevatt? 24 A Yeah, we still have the open case, which was 25 the racial slur case, and that had to be dealt with one VOLUSIA REPORTING COMPANY 72 1 way or the other. You couldn't just stop the 2 investigative process at the point of insubordination. 3 You still had to satisfy the initial complaint. 4 Q Okay. And out of an abundance of caution, 5 isn't it true that you asked for the reassignment so 6 that there would be no hint of appearance of impropriety 7 in the continuation of this investigation? 8 A That is correct. 9 Q And so in fact, isn't it true that when 10 Mr. Prevatt was interviewed by Captain Dofflemeyer, you 11 were not present for that interview, were you? 12 A That is also correct. 13 Q And with the reassignment of this case to 14 Captain Dofflemeyer, that did not preclude you from 15 assisting her in other ways, did it, such as going to 16 the interview with the inmate? 17 A No, that did not preclude me from assisting 18 Captain Dofflemeyer. 19 Q And do you recall that the interview of the 20 inmate that Mr. Geismar was asking you about occurred 21 outside the presence of the jail? In other words, 22 Mr. Pletcher was no longer an inmate when Captain 23 Dofflemeyer went to interview him? 24 A Yeah, he lived out in Pierson or a section of 25 Pierson. VOLUSIA REPORTING COMPANY 73 1 Q So I think you testified, is it accurate to 2 say, that you went with her because she was going to a 3 former inmate's home, and certainly she wouldn't be 4 expected to go by herself? 5 A That is correct. 6 Q Okay. I may have asked you this question, I'm 7 not sure, but in terms of this report admitted into 8 evidence, this final report that was signed off by both 9 of you, did you both sign it because you both had 10 participated at some point into the investigation? 11 A Yes. 12 Q With regards to the criminal charges, this is 13 not the first time that you have filed paperwork with 14 the state attorney's office charging, or maybe not 15 charging but giving the information to the state 16 attorney's office to make the decision as to whether or 17 not to charge someone. This isn't the first time you've 18 done this, is it? 19 A No, I do that as a regular practice. 20 Q Okay. So if you conducted an Internal 21 Affairs' investigation and in your investigation you 22 sustain that the officer involved has potentially 23 committed a criminal act, is it your testimony that 24 certainly a felony you're required to file charges with 25 the state attorney's office or report to FDLE? VOLUSIA REPORTING COMPANY 74 1 A Actually both. I would be required to bring 2 those charges to the attention of the state attorney's 3 office. They ultimately would determine if they're 4 going to file an information or not. And then if -- I 5 would have a responsibility, once a case was closed, to 6 report the findings of an IA case to officer discipline 7 with law enforcement. 8 Q That's part of your job duty, isn't it? 9 A That's correct. 10 Q And with regards to the criminal charges to 11 the state attorney's office, isn't it true that you do 12 not have the discretion, once you conclude the IA and 13 determine that criminal act may have been committed, 14 that there's probable cause to believe criminal acts 15 have been committed, you don't have the discretion, do 16 you, as to whether or not you're going to file, or 17 submit them is probably a better word, with the state 18 attorney's office? 19 A I don't have that discretion. What I would do 20 is meet with the state attorney's office, explain to 21 them support documentation as to why I felt a particular 22 charge warranted it. They ultimately would tell me 23 whether to write a complaint or -- a complaint affidavit 24 on it or not. 25 Q And do you recall whether you did that in this VOLUSIA REPORTING COMPANY 75 1 case? 2 A I did. 3 Q You met with the state attorney's office in 4 this case and discussed the facts with them and 5 basically got some input from the state attorney about 6 whether or not criminal charges should be -- whether or 7 not criminal charges were warranted? 8 A I think I met with the state attorney's office 9 two, if not three, times on this case because of the 10 magnitude of the charges. 11 Q Okay. Okay. And to that extent, I'd like to 12 refer you to Page 4 of this report -- and I think this 13 was the larger print one so you may be able to read 14 it -- and ask you if the paragraph beginning with "In 15 closure" that's right in the middle of the page there, 16 does that paragraph detail the criminal charges that you 17 filed paperwork with the state attorney on? 18 A On Page 4? 19 Q I think so. It's 4 on mine. 20 A Yes. 21 Q Okay. Okay. 22 A I'm going to the middle paragraph? 23 Q Where it says "In closure, Officer Prevatt's 24 action." 25 A Yes. I see it. VOLUSIA REPORTING COMPANY 76 1 Q Okay, and to the extent that you can read 2 it -- 3 A I can read it fine. This one's fine. 4 Q Okay, okay. So in reviewing that, if you 5 could, please, tell us what the charges were, without -- 6 you don't have to give statute numbers, but the general 7 nature of the charges that you submitted to the state 8 attorney's office for review. 9 A First charge was by statute, was verification 10 of documents, perjury by false and written declaration. 11 Second one was receipt and processing of complaints. 12 Next one was exhibits that intimidate. Next was perjury 13 in official proceedings, perjury by contradictory 14 statements, false official statements, disclosure or use 15 of confidential and criminal information, tampering with 16 a witness or an informant. 17 And, again, we indicated there that they were 18 reported to the state attorney's office. 19 Q Okay. And are these the charges that you were 20 speaking of earlier that you said you would have sat 21 down with the state attorney's office two or three times 22 to discuss filing? 23 A That is correct. 24 Q Okay. With regards to the tampering with a 25 witness charge, do you recall, from the investigation, VOLUSIA REPORTING COMPANY 77 1 what that had to do with, just generally? 2 A Yes. We had interviewed a prime suspect, or a 3 prime witness, in the particular case, and that inmate 4 was housed at the corrections facility. 5 Q Now, when you say a "prime" witness, would 6 this have been a witness as to the initial racial slur 7 allegation? 8 A Yes. 9 Q Okay. 10 A So based on that, there was an interview that 11 was conducted with an inmate who was somewhat reluctant 12 to testify under the pretense that he was concerned 13 there may be retaliatory behavior. 14 Q This inmate was still in custody? 15 A He was still in custody. 16 Q Okay. 17 A Concerned that there may be some retaliatory 18 behavior. Gave the assurances that that would not have 19 occurred. 20 Q Now, Mr. Prevatt was still working; isn't that 21 correct? 22 A That is correct. 23 Q He was still working in the correctional 24 facility? 25 A That is correct. VOLUSIA REPORTING COMPANY 78 1 Q Okay. Go ahead. 2 A Well, the next thing I know is I received a 3 phone call in the evening at my home from an on-duty 4 corrections supervisor indicating that Officer Prevatt 5 came in off duty and had gone down to the particular 6 housing unit where that inmate was being held in 7 custody, asked the housing officer to remove him, and 8 then took him away from that housing unit down the hall 9 and entered into some type of conversation with him. 10 Q Okay. And are those -- and, then, those are 11 the basic facts that form the basis for the charge of 12 tampering with a witness. 13 A That is correct. 14 Q Okay. Ultimately, with regards to the 15 criminal charges, you do not have any input on whether 16 or not the state attorney files those charges, do you? 17 A I do not. 18 Q So the decision as to whether to proceed with 19 any criminal charges against Mr. Prevatt were not -- 20 were not yours. The ultimate decision whether actual 21 charges would be filed were by the state attorney? 22 A That's correct. 23 MS. JONES: I think that's all I have at this 24 time, Judge. 25 THE COURT: Redirect? VOLUSIA REPORTING COMPANY 79 1 REDIRECT EXAMINATION 2 BY MR. GEISMAR: 3 Q You said that the incident began with 4 complaints from some of the inmates, right? 5 A Yes, sir. 6 Q Yet they were not interviewed until after 7 Officer Prevatt, correct? 8 A I didn't interview Officer Prevatt, so at what 9 time -- you had a series of written complaints that were 10 received from the jail. Those would constitute 11 complaint statements. They would have been given to 12 Officer Prevatt if he had in fact appeared before the 13 interview -- or appeared for the interview as directed. 14 Q You're not aware if any of those complaining 15 inmates were interviewed, correct? 16 A I don't know that. 17 Q Now, this -- this individual who you went out 18 to interview, Pletcher, did he change his story at any 19 time, to the best of your knowledge? 20 A Initially he had -- when he was in custody, he 21 provided a statement, and then after he was released 22 from custody, he then participated in an interview 23 process at his home and there were variations to the 24 statement. 25 Q Did you follow up with any additional witness VOLUSIA REPORTING COMPANY 80 1 interviews as a result of those statements? Did you do 2 any other investigations after you saw there were 3 variances? 4 A We talked to several other people. I'm not 5 sure if all the details of his -- the variations between 6 the two statements were discussed with other inmates. 7 Q And is it correct you did not file any 8 criminal charges regarding the incident regarding the 9 falsification of the logbooks that I referred to 10 earlier? 11 MS. JONES: Objection; asked and answered. 12 THE COURT: Sustained. 13 BY MR. GEISMAR: 14 Q Isn't it true that you never told Officer 15 Prevatt that criminal charges were being brought against 16 him? 17 A That's true. That's true. 18 Q And isn't it true that you didn't stop the 19 Internal Affairs' investigation when the criminal 20 charges were filed against Officer Prevatt? 21 A The charges were filed after the case was 22 closed, I believe. 23 Q So is it your testimony today that the 24 investigation was closed? 25 A I'm not sure of the exact date of the charging VOLUSIA REPORTING COMPANY 81 1 documents, when they were submitted to the state 2 attorney, but it would have been at the end of the case 3 or when it was closed. I don't exactly recall. 4 If you have the -- I did 707's on them, which 5 are complaint affidavits. If you have the 707's, they 6 would have the date they were filed. 7 Q Is it correct it would have been improper not 8 to stop the Internal Affairs' investigation if it had 9 been ongoing at that time? 10 A I'm sorry, say that again. 11 Q Is it correct that it would have been improper 12 to not stop the Internal Affairs' investigation if it 13 had been ongoing at that time? 14 A Improper not to stop it? 15 Q You would have had to have stopped it, 16 correct? 17 A I would have had to stop it? 18 Q Someone would have had to. It would have had 19 to have been stopped? 20 A If the internal investigation was ongoing and 21 the state attorney's office determined that they were 22 going to file an information on those charges, then the 23 administrative investigative process would have stopped 24 to allow for the criminal proceedings to move forward. 25 Q Were you aware that Officer Prevatt had filed VOLUSIA REPORTING COMPANY 82 1 a -- you were aware that Officer Prevatt had filed a 2 complaint to FDLE regarding the corrections department 3 on or about January 16, 2008? 4 A About. 5 Q And isn't it true that your criminal charges 6 were filed about six days after that? 7 A I don't know. 8 Q After you filed the criminal charges against 9 Officer Prevatt, did you not have Officer Prevatt keep 10 him working on for several months after those complaints 11 were filed? 12 A Did I keep him on working? 13 Q Wasn't he kept on working after those charges 14 were filed? 15 A I'm not involved in their work scheduling. 16 Q Do you conduct all of your investigations 17 within the department in the same manner? 18 A Yes. 19 Q And isn't it general practice to take witness 20 interviews during an investigation? 21 A The case law changed. When Florida Statutes 22 changed, prior to this change in state statute, you did 23 not do the witnesses first. When the statute changed, 24 then that process was altered. 25 MR. GEISMAR: That's all I have for this VOLUSIA REPORTING COMPANY 83 1 witness. Thank you. 2 THE COURT: You may step down, sir. 3 THE WITNESS: Thank you. 4 MR. GEISMAR: Your Honor, can we take five 5 minutes? 6 THE COURT: Sure. Let's take a recess. 7 (Witness stands down.) 8 (Short recess.) 9 THE COURT: Hearing will come to order. It's 10 1:00. What do the parties want to do, if anything, 11 about lunch? I'm open to your suggestion. Doesn't 12 matter to me. 13 MR. GEISMAR: Can we take an hour lunch? 14 MS. JONES: I would prefer that we -- I mean, 15 there is a very good, nice coffee shop downstairs. 16 They have sandwiches and stuff. We could probably, 17 if people wanted to eat, get done in less than an 18 hour, Judge, unless you prefer an hour, but I 19 prefer to go forward. 20 THE COURT: How many more witnesses does the 21 Petitioner have? 22 MR. GEISMAR: There's still seven. 23 THE COURT: All right. And the Respondent has 24 how many? 25 MS. JONES: Maybe one or two. VOLUSIA REPORTING COMPANY 84 1 THE COURT: All right. Well, if we take a 2 lunch recess, let's take a fairly abbreviated one. 3 MR. GEISMAR: Thank you. 4 THE COURT: This a good time to do it? 5 MR. GEISMAR: I think so. I think so. 6 THE COURT: All right. Let's take about 30, 7 40 -- about 30 minutes. About 1:30, 1:35. 8 (A lunch recess was taken from 1:00 p.m. 9 to 1:49 p.m.) 10 THE COURT: Hearing will come to order. Call 11 your next witness. 12 MR. GEISMAR: Let's call Nicky Dofflemeyer. 13 (Brief pause.) 14 (Whereupon NICKY DOFFLEMEYER was duly 15 sworn to tell the truth and testified as 16 follows:) 17 DIRECT EXAMINATION 18 BY MR. GEISMAR: 19 Q Could you state your name for the record. 20 A My name is Nicky Dofflemeyer. 21 Q And who are you currently employed by? 22 A I'm employed by the Department of Public 23 Protection Division of Corrections. 24 Q And what is your job within the department? 25 A At this time I'm assigned to the Internal VOLUSIA REPORTING COMPANY 85 1 Affairs' Unit. 2 Q How many officers are assigned to the Internal 3 Affairs' Unit? 4 A With the Division of Corrections? 5 Q Right. 6 A It's myself as a captain, we have a background 7 investigator that works in the unit as a sergeant, and 8 we have a staff assistant. 9 Q Are you a certified correctional officer? 10 A Yes, I am. 11 Q Do you have your LEO certification, as well? 12 A Yes, sir. 13 Q In the incident -- are you familiar with an 14 incident involving an inmate by the name of Ronald 15 Williams and Al Prevatt? 16 A Yes, sir. 17 Q And did you sustain the charges in that case 18 against Mr. Prevatt? 19 A Well, the charge we're speaking of? The 20 violation was sustained, yes. 21 Q Okay. Who was the initial complainant in 22 reference to Mr. -- Officer Prevatt's alleged conduct? 23 A I believe it was Inmate Williams. 24 Q Did you interview Inmate Williams at any time? 25 A It's been quite a while ago. I don't believe VOLUSIA REPORTING COMPANY 86 1 Inmate Williams was interviewed. 2 Q Okay. Do you conduct all your investigations 3 in Internal Affairs in the same manner? 4 A Every situation's a little different. If you 5 could be more specific what you're asking. 6 Q Do you usually take witness statements in your 7 investigations? 8 A Depends on the situation, yes. There's times 9 that we do. There's times that we have written 10 statements taken. Depends on the situation. 11 Q Do you recall preparing a memo on 12 September 21st, 2007 to Director Clifford regarding this 13 case? 14 MS. JONES: I would ask that you show the 15 witness the memo. 16 MR. GEISMAR: Yes, I am showing the witness 17 the memo (tendering). 18 BY MR. GEISMAR: 19 Q Just let me know when you're done. 20 A Okay. Per se, to remember exactly, no, I 21 don't. Does it look like a document that would have 22 been drafted by me, yes, but I don't remember for sure. 23 Q Okay. 24 A This looks like a draft. 25 Q Okay. In this -- in this memo, did you VOLUSIA REPORTING COMPANY 87 1 sustain the allegations against Officer Prevatt? 2 A It does say "sustained," but like I said, I 3 believe this is a rough draft because according to 4 Florida Statute, you have to have a certain statement at 5 the end of all reports that says, "I attest that the 6 information is true," and that's not on this one. So 7 that's why I believe it's a draft. 8 Q Had you completed -- do you know if you had 9 completed the investigation at the time this memo was 10 sent? 11 A You know, to be honest with you, I'm not sure. 12 This has different dates from what the final draft, the 13 final memo, the final report does. 14 Q Did you, at any point during the investigation 15 of this matter, interview Officer Cook? 16 A No, we didn't interview Officer Cook. He 17 actually provided a written statement for us, if I 18 remember correctly. 19 Q At any point did Officer Prevatt ask, request, 20 that you interview Officer Cook? 21 A This has been about 18 months ago. I believe 22 we discussed Officer Cook during Mr. Prevatt's initial 23 statement that he gave. I think we discussed -- I think 24 Mr. Prevatt had asked me if he needed to get a written 25 statement from Mr. Cook, and I told him I would take VOLUSIA REPORTING COMPANY 88 1 care of that, something like that. And not for sure 2 exactly because it's been, you know, quite a period of 3 time ago. 4 Q Did you ever follow up with Officer Cook? 5 A I believe there was a written statement 6 submitted by Mr. Cook. 7 Q Other than the written statement that Officer 8 Cook gave, was there any followup investigation, to the 9 best of your knowledge, with him? 10 A Not that I know of, sir. 11 Q Did you at any time interview Officer Morris? 12 A It's been about 18 months ago. If I could 13 look at the complete file packet, I would be able to 14 tell you who was interviewed and who wasn't. 15 Q Do you know if any other witnesses were 16 interviewed in connection with this case? 17 A Like I said, I'd have to look at the whole 18 packet. I believe there were other sworn statements 19 taken, but I cannot tell you exactly who gave those 20 sworn statements. 21 Q Did there come a point where you interviewed 22 Officer Prevatt? 23 A Yes, we had one interview between myself and 24 Mr. Prevatt. 25 Q Do you recall at what point during the VOLUSIA REPORTING COMPANY 89 1 investigation that occurred? 2 A If you give me a second to look right here, 3 I'll be able to tell you. 4 Q Sure. 5 A September 4, 2007. 6 Q Okay. Did there come a time -- did you ever 7 interview an Officer Bidwell in connection with this 8 matter? 9 A Not that I remember, sir. 10 Q Do you know if anybody did? 11 A I could not tell you for sure. 12 Q Did Officer Prevatt request that his interview 13 with you be conducted during his normal shift hours? 14 A No. 15 Q Did he ever suggest to you that August 28th, 16 2007 at 2100 hours would be a good time to meet? 17 A Not that I'm aware of. 18 Q Is it your practice in the past -- do you have 19 a practice in the past of documenting in final IA memos 20 that officers were interviewed during their normal 21 hours, during their normal duty hours? 22 A Could you repeat that, please. 23 Q Do you have a practice in the past of 24 documenting when officers are interviewed? 25 A It goes into the final memo, the dates and VOLUSIA REPORTING COMPANY 90 1 times. Plus there's official notice given to the 2 officer of the date and time that they report for their 3 interviews. 4 Q Do you have a recollection as to, in general, 5 whether these officers are usually interviewed during 6 their normal hours? 7 A In the past, I know the jail had requested we 8 interview the officers on night shift at the end of 9 their tour of duty. We held them over and they were 10 still on the payroll, so at that point there they were 11 still on duty. That was a previous practice. 12 Our current practice is to do the interview at 13 the beginning of the officer's shift. But that's a new 14 practice. 15 Q Is there any law that you're aware of that 16 directs you to do interviews during normal duty hours? 17 A You have the Officer Bill of Rights that 18 discusses interviews and when they are supposed to be 19 conducted. 20 Q Captain Dofflemeyer, as your duties as an 21 Internal Affairs' investigator, is it part of your 22 responsibilities to assign or recommend disciplinary 23 action? 24 A No. 25 Q Did you ever recommend an appropriate level of VOLUSIA REPORTING COMPANY 91 1 discipline for Officer Prevatt? 2 A Absolutely not. 3 Q In that memo that you have been looking at 4 dated October 10, 2007, did you charge Mr. Prevatt with 5 insubordination for not being able to make your 6 scheduled meeting? 7 A I believe so, yes. 8 Q And was that outside his normal duty hours? 9 A I'd have to see the actual notice to tell you 10 what time was on it, but the notice is very specific 11 that you are directed to report if there is any issues, 12 to contact Internal Affairs' office. I was not 13 contacted at any time to ask for the interview to be 14 rescheduled. 15 Q In that memo, did you also sustain the 16 allegations of insubordination that were made by 17 Modzelewski? 18 A I sustained the report as a whole, yes, 19 insubordination for Mr. Prevatt not reporting, as 20 directed by myself. And I believe in this report is 21 Captain Modzelewski's report of insubordination. 22 Q Did you do any investigation into the 23 allegations of insubordination? 24 A I don't understand why there would be an 25 investigation into insubordination. He was given a VOLUSIA REPORTING COMPANY 92 1 directive to report and at no time did he ever contact 2 us that there was an issue, that he had a scheduling 3 conflict, or to request us to reschedule his interview. 4 Q At any time did you interview any of the 5 officers that were involved in providing notice to 6 Officer Prevatt of these meetings? 7 A Did not do a sworn statement with him, no, but 8 they did file official documentation with the Division 9 of Corrections notating that they were delivered. 10 Q Were you aware that Officer Prevatt had 11 requested to meet during his normal duty hours? 12 A The request was never made to me and I was not 13 aware that he had ever requested. 14 Q Did you ever consider removing yourself from 15 that investigation so as not to bias the investigation 16 of insubordination? 17 A No, sir, I did not. 18 Q Do you think it would have been proper to 19 remove yourself from that investigation? 20 A I was. Absolutely, I was fair with my reports 21 and the facts that were presented. There was no -- 22 there was no hard feelings because Mr. Prevatt did not 23 show up and there was insubordination. The report was 24 factual and fair. 25 Q Did you notify Officer Prevatt at any time VOLUSIA REPORTING COMPANY 93 1 that he was being charged with insubordination? 2 A No, I did not. That report was made to the 3 director. 4 Q I'd like to show you an incident report from 5 the Volusia County Department of Corrections. It's 6 dated October 15, 2000. Were you working at that time 7 at the department? 8 A Could you give me the date again, please? 9 Q October 15 of 2000. 10 A Yes. 11 Q I don't have another copy of this. 12 MS. JONES: If I could just see what it is. 13 MR. GEISMAR: (Tendering.) 14 MS. JONES: I'll object to the relevance of 15 this, Judge. 16 MR. GEISMAR: Okay. This is -- I'd like to 17 show this to the witness. What it is, it's an 18 insubordination evaluation of the black female in 19 which it's going to be proffered that the black 20 female was given an opportunity to respond and 21 there was progressive discipline taken in 22 connection with the insubordination charges. And 23 this is going to be proffered that this was the 24 practice. 25 MS. JONES: My objection also as to relevance VOLUSIA REPORTING COMPANY 94 1 is that this witness is not named anywhere in this 2 paperwork. She had nothing to do with this, that I 3 can tell from my brief. 4 THE COURT: Well, let's let her tell us that. 5 MS. JONES: Okay. 6 MR. GEISMAR: Captain Modzelewski is on this. 7 We do intend to call him back to get this in. 8 BY MR. GEISMAR: 9 Q I want to ask you to look at that and tell me 10 if you know what that is, what that evaluation is. 11 A (Looking at document.) 12 Q Can I ask an easier question? 13 A Sure. 14 Q Who does the evaluation pertain to? 15 A Lieutenant Wanda Edwards. 16 Q Wanda Edwards, is she a black woman? 17 A Yes, she is. 18 Q And what type of evaluation is that? Is that 19 a -- it appears to be an insubordination charge. 20 MS. JONES: Objection. 21 MR. GEISMAR: I'm just trying to help. 22 MS. JONES: Objection, hearsay. 23 BY MR. GEISMAR: 24 Q Do you know what that is? 25 THE COURT: Just a minute. VOLUSIA REPORTING COMPANY 95 1 A I'm sorry. 2 MS. JONES: My objection is hearsay and 3 relevance, Judge. Again this witness was not 4 involved in this action in 2000. So I don't think 5 she's qualified to testify about what is in the 6 paperwork. 7 MR. GEISMAR: It has direct relevance, Your 8 Honor. I'm not asking -- 9 THE COURT: I'm not clear whether she was or 10 not. Let's let her answer. 11 A I was not involved in this incident. 12 Q I'm not asking whether you were involved in 13 it. I'm asking you whether -- 14 A The judge was, that's why I was -- 15 THE COURT: Okay, that's established. Go 16 ahead. What's your next question? 17 Q Do you recognize -- what does that appear to 18 be to you? 19 A These are informational reports that were 20 submitted by the parties involved. 21 Q Do you know specifically what type of report 22 that is? 23 MS. JONES: Objection, hearsay. 24 THE COURT: Overruled. He asked her what type 25 it was. It appears to be within her knowledge. VOLUSIA REPORTING COMPANY 96 1 He's not asking for the contents of the paper. 2 A It's an informational report from Volusia 3 County Department of Corrections, 401. There is also, 4 in the packet, a letter of reprimand. 5 MR. GEISMAR: Permission to lead the witness, 6 Your Honor. 7 MS. JONES: We would object, Judge. 8 THE COURT: What for? 9 MR. GEISMAR: Well, I'd like her to tell me -- 10 I mean, it's pretty clear what it is and I'm not 11 getting an answer as to what -- 12 A I'm just not understanding what you're asking, 13 sir. 14 THE COURT: Ask her again. 15 Q Okay. I'll ask you again. 16 I'd like you to, after you review that 17 document, can you tell me what -- is there a charge 18 being made against this black woman in that document? 19 A Well, the first document, the one that I read 20 through, is Ms. Edwards is responding to a charge of 21 insubordination. 22 Q Okay. And you were employed at the department 23 at that time? 24 A Yes, but I wasn't involved in this incident. 25 Q I didn't ask you that, though. VOLUSIA REPORTING COMPANY 97 1 A Okay. I'm just making sure it was clarified. 2 Q It's already clarified. We understand that 3 you weren't involved in the incident. 4 A I was employed there in 2000. 5 Q And I understand that. 6 A Yes. 7 Q Were you -- what was your capacity at the 8 department there? What were you employed -- in what 9 position? 10 A I could not tell you in 2000. I'm unsure. 11 Q Okay. But it appears to be a charge of 12 insubordination. 13 A Yes. 14 Q And I think you just testified that the black 15 woman had a chance to respond to it? 16 MS. JONES: Objection, Your Honor. She did 17 not testify to that. He testified to that. 18 MR. GEISMAR: I believe she just testified to 19 that. 20 MS. JONES: She did not testify that the black 21 woman had a -- 22 THE COURT: She referenced her response. 23 MR. GEISMAR: She most certainly did. 24 THE COURT: Objection sustained. 25 VOLUSIA REPORTING COMPANY 98 1 BY MR. GEISMAR: 2 Q Can you correct me? What is it that you -- it 3 is a charge of insubordination against this woman? 4 MS. JONES: Objection; asked and answered. 5 THE COURT: That's established. Objection 6 sustained. 7 BY MR. GEISMAR: 8 Q In addition to a charge of insubordination, 9 what other -- are you able to determine what other 10 paperwork is there in front of you? 11 A There's the initial response from Ms. Edward. 12 There's a letter of reprimand. 13 Q Is there anything else? 14 A There is a separate report, another 401 15 attached. There's several 401's in here and 402's, 16 which are supplementals, and a letter of reprimand. 17 Q Is there a letter of rebuttal contained in 18 that package? 19 A That's one of the 401's, yes, letter of 20 rebuttal. 21 Q Who wrote the letter of rebuttal? 22 A Ms. Edwards. 23 Q Do you know if this was the practice in the 24 department at that point to make this type of a report? 25 A I can't say yes or no. VOLUSIA REPORTING COMPANY 99 1 Q Have you ever seen a copy of this type of 2 report before? 3 A Not that I can say that I remember. There's 4 many reports that go through that I don't have privy to. 5 I could not tell you yes or no. 6 Q Are you aware of a policy currently in effect 7 whereby an officer who is charged with insubordination 8 would get a chance to respond in this manner? 9 A Once again, I can't answer that. 10 Q You don't know if there is a policy currently 11 in Internal Affairs? 12 A No, not in Internal Affairs. There is not a 13 policy specifically designed for rebuttal to an 14 insubordination charge. 15 Q Are you aware of any reason why an officer 16 would be given a chance to rebut an insubordination 17 charge? 18 A I can't answer that, sir. That would come 19 from the direction of the director. 20 Q If I could ask you to look at the last page of 21 the -- of that report, on the bottom. I believe it's 22 cc'd to a number of individuals. 23 A Last page has no cc on it. 24 Q Can you tell me who this report was cc'd to? 25 A Cc to Captain Modzelewski, cc to Officer VOLUSIA REPORTING COMPANY 100 1 Edwards and cc to Warden Clifford. 2 Q Okay. I'll take that. 3 A (Tendering.) 4 Q Thank you. Did you agree with -- were you 5 aware that Captain Modzelewski had removed himself from 6 Officer Prevatt's investigation once officer -- Captain 7 Modzelewski had filed insubordination charges? 8 A The case was reassigned to me, yes. 9 Q Did you agree with that decision? 10 A There was no reason not to agree with it. 11 Q Now, do you have an understanding as to why 12 Captain Modzelewski took himself off of the 13 investigation? 14 MS. JONES: Objection; asked and answered. 15 MR. GEISMAR: I don't recall -- I don't recall 16 whether the witness has answered that. 17 THE COURT: She can answer that. 18 A Question again, please. 19 Q Do you have an understanding as to why Captain 20 Modzelewski removed himself from the investigation? 21 A Because he was charging Mr. Prevatt, I 22 believe, with one or two counts of insubordination. 23 Q Was there a reason why you didn't remove 24 yourself from the investigation when you also charged 25 Officer Prevatt with insubordination? VOLUSIA REPORTING COMPANY 101 1 MS. JONES: Objection; asked and answered. 2 THE COURT: Overruled. 3 A At the point that we were in the 4 investigation, I did not see need to remove myself from 5 the investigation. We had done interviews. I had 6 interviewed Mr. Prevatt. I interviewed, I believe, a 7 couple of witnesses at that point. I didn't see any 8 reason to remove myself from the case at that point. We 9 had evidence supporting the allegations. 10 Q Do you know who you interviewed? 11 A If I could look at the whole packet, I could 12 tell you. It's been 18 months. I wish I could tell you 13 off the top of my head who I interviewed but I can't. 14 Q Did I ask you if you interviewed Officer Cook? 15 A Yes, you did ask me. 16 Q I believe you said no? 17 A Yes. 18 Q Right. Do you recall whether you interviewed 19 any of the witnesses that Officer Prevatt had suggested 20 be interviewed? 21 A I can't remember. The only witness that I 22 believe that Mr. Prevatt brought forward was Anthony 23 Pletcher. I believe that was the only witness that he 24 brought forward. We could check the transcripts and 25 doublecheck, but that's the only one that I remember. VOLUSIA REPORTING COMPANY 102 1 And, yes, I did interview him. 2 Q Prior to completing your investigation on 3 October 10th -- prior to this memo of October 10, 2007, 4 I may have asked you, did you notify Officer Prevatt of 5 the charges of insubordination that were being made 6 against him? 7 A No, I did not. The director was notified. 8 Q Did you at any time, prior to completing this 9 memo on October 10, 2007, notify Officer Prevatt that 10 the charges against him were being sustained? 11 A Give me the question again, please. Prior 12 to -- 13 Q Did you notify Officer Prevatt that the 14 charges against him, that you were sustaining the 15 charges? 16 A That would not be my position to do that. The 17 report is submitted to the director and the director -- 18 that would not be my position to notify him. 19 Q Do you know if he was notified? 20 A Sir, I do not know. 21 Q I'd like to show you another memo from you to 22 Marilyn Ford dated February 12th, and I believe this is 23 involving a rape case. Certain officers were -- 24 allegedly raped an inmate. And this is a memo from you 25 regarding that investigation. VOLUSIA REPORTING COMPANY 103 1 MS. JONES: Judge I would object to the 2 relevance of this. This is dated February 12, 3 2009. Mr. Prevatt was terminated in November of 4 2007. I don't see how there would be any relevance 5 in this document as to the decision to terminate 6 him in 2007 -- 7 MR. GEISMAR: The offer -- 8 MS. JONES: If I could finish, please. 9 MR. GEISMAR: Oh, sure. Just let me know when 10 you're done. 11 MS. JONES: No, I'm done. 12 MR. GEISMAR: At the outset of this hearing, 13 Your Honor, we discussed the fact that race was an 14 issue and disparate treatment was an issue. It 15 will be proffered that these officers were three 16 black officers and one Puerto Rican officer. They 17 were given every benefit of the doubt. It will be 18 shown they had been given every procedural due 19 process possible, witness statements, et cetera, 20 and I wanted to ask the witness about it because a 21 memo comes directly from her. 22 Apparently -- and it's going to be proffered 23 that there is disparate treatment between these 24 individuals and my client that's directly related 25 to race. So it's directly relevant to the issues VOLUSIA REPORTING COMPANY 104 1 involved. 2 MS. JONES: Two points, Judge: This is 3 written to Director Marilyn Ford who is the current 4 director, not Director Clifford who is the one that 5 took the action to terminate Mr. Prevatt back in 6 2007. 7 It involves an allegation of sexual battery 8 made by an inmate against an officer, not an 9 allegation of racial slurs having been made. It's 10 a completely different animal, and it happened 11 almost 18 months after he was terminated by -- and 12 involved a different director. We feel it's 13 prejudicial to try to introduce it into this matter 14 because it's not relevant. 15 MR. GEISMAR: In response, very briefly, I 16 would suggest that a racial slur is much less 17 consequential than a rape investigation, and any 18 safeguards provided to the subjects in a rape 19 investigation would certainly be provided to an 20 officer being charged with insubordination or an 21 allegation of a racial slur. 22 I think it's directly related to the case. I 23 can understand why the County would not want this 24 in. 25 THE COURT: The identity of the supervisor or VOLUSIA REPORTING COMPANY 105 1 director being different goes to the weight of it. 2 It may have some relevance on the question of 3 disparate treatment and similarly situated 4 employees of a different class than the 5 Petitioner's class. 6 MR. GEISMAR: I understand. 7 THE COURT: The facts get all involved, of 8 course, when you try to determine what similarly 9 situated means in the context and in the facts of 10 this case. 11 The fact of the difference in time may have 12 some effect on the weight to be ascribed to it. It 13 doesn't render it irrelevant. It's still the same 14 entity, same Division of Corrections, County of 15 Volusia. And I understand your argument about the 16 different director being involved. 17 MS. JONES: Well, there's one more argument, 18 Judge, and that is that the charges in this case in 19 February of '09 were not sustained against the 20 officers, whereas the charges against Mr. Prevatt 21 were sustained. So in terms of a comparison of 22 disparate treatment, there's a big distinction 23 because no action was taken on these officers 24 because nothing was sustained. 25 MR. GEISMAR: Well, the rebuttal to that would VOLUSIA REPORTING COMPANY 106 1 be that if the proper safeguards were given to 2 Mr -- Officer Prevatt, no action would have been 3 taken against him, either. 4 THE COURT: That doesn't render it irrelevant. 5 That might render a different conclusion be drawn 6 by it than what the Petitioner has advanced. 7 MS. JONES: I understand, Judge. I just 8 wanted to put that on the record as part of my 9 argument. 10 THE COURT: That goes to are they similarly 11 situated or not, but I'm not going to exclude it. 12 But I'll consider that, of course. 13 MS. JONES: Okay. I understand. 14 BY MR. GEISMAR: 15 Q I'd like you to take a look at that and tell 16 me if you know what that is. 17 A Yes, sir, I do. 18 Q What do you recognize that to be? 19 A This is the final report on the Internal 20 Affairs' case in reference to the officers that you 21 spoke of that was submitted to Director Ford. 22 Q And did I characterize that correctly? Was 23 this a -- what was the incident specifically that was 24 involved? 25 A An inmate was incarcerated at the correctional VOLUSIA REPORTING COMPANY 107 1 facility, alleged that four officers had sexually 2 assaulted her while she was in custody. 3 Q And were these three black officers and one 4 Puerto Rican officer? 5 A Yes. 6 Q And were those charges sustained? 7 A They were not sustained and they were 8 unfounded. One of the charges unfounded and the other 9 ones were not sustained. 10 Q Who did you send that memo to? 11 A This went to Director Ford. 12 Q Okay. If I ask you to look through that memo, 13 can you tell me what procedural rights under Florida 14 Statute 112, or the Officer Bill of Rights, were 15 afforded to these officers during the investigation, if 16 you understand my question? 17 A That's kind of a broad question. We didn't 18 violate any of the rights under Florida Statute. 19 Q Let me ask you a different question. Were any 20 witnesses interviewed in connection with this matter? 21 A Yes. 22 Q Were those witness -- were those interviews 23 documented in that final report? 24 A Yes. 25 Q I don't have a copy of that. If you -- VOLUSIA REPORTING COMPANY 108 1 A We can share (tendering). 2 Q Does this report have a sworn statement taken 3 from the complainant? 4 A Yes, this does. 5 Q Does this report have a specific description 6 of each allegation, legal allegation, that's being made 7 against the officers? 8 A Yes. And if I could expand on that, if that's 9 okay. 10 Q Sure. 11 A The previous -- the formatting on the reports 12 have been changed, so that's why Mr. Prevatt's report 13 does not read as this report here does. 14 Q Are you aware that the rights and the bill of 15 rights have changed significantly? 16 A As far as I know, the bill of rights haven't 17 changed significantly, no. There's been some 18 legislative changes. 19 Q And as I asked you, does this report document 20 the witness interviews that were done? 21 A Yes, this does. 22 Q And does this report also document the 23 findings that you came to? 24 A Yes. This report would document charges, 25 findings, the officers that were charged, their VOLUSIA REPORTING COMPANY 109 1 statements, because they readily participated in this 2 interview. 3 Q Does it also give your conclusion regarding 4 the matter? 5 A Yes, sir. 6 MR. GEISMAR: Without asking the Court to give 7 this any weight whatsoever, I'd like to admit this 8 as Petitioner's Exhibit 4 as being, you know, a 9 memo from Captain Dofflemeyer. 10 THE COURT: Did we not identify the evaluation 11 concerning Wanda Edwards as Petitioner's 4? 12 MS. JONES: I don't think you put that one 13 into evidence, Judge. 14 THE COURT: It's not moved yet. 15 MS. JONES: I'm sorry, I didn't realize that 16 he had asked you to identify it. I thought he 17 just -- 18 THE COURT: Did you want that in? 19 MR. GEISMAR: Yeah, the evaluation is 4 and 20 the memo regarding the rape case is 5. 21 THE COURT: That will be 5. 22 MR. GEISMAR: And I'd like to move them both 23 in. 24 THE COURT: Any objection other than what I've 25 ruled on? VOLUSIA REPORTING COMPANY 110 1 MS. JONES: I think her testimony, Judge, 2 established that there was a format change based on 3 the new director coming in, and so I still don't 4 think that it's relevant to this case, in addition 5 to the other objections I've already made. 6 It doesn't establish that any rights were 7 violated, nor that there was any disparate 8 treatment of Mr. Prevatt because of the change in 9 format of the report. 10 MR. GEISMAR: I believe it's more than format. 11 I think the weight will be -- you know, Your Honor 12 will have a chance to judge the weight. I believe 13 it's more than format, based on what's in front of 14 Your Honor. 15 THE COURT: I'll give you a chance, as you 16 would have anyway, to brief me on the question of 17 change in format and its effect. And it may turn 18 out to have scant relevance, but right now I can't 19 determine it's irrelevant because I understand the 20 argument about disparate treatment and the counter 21 argument that these may not be similarly situated 22 employees and situations, but I'll evaluate that in 23 the fact-finding process. 24 On that basis, as to the ruling on the earlier 25 objection concerning Petitioner's 4, Petitioner's 4 VOLUSIA REPORTING COMPANY 111 1 and 5 are admitted. 2 (Petitioner's Exhibits 4 and 5 were 3 marked and received into evidence.) 4 BY MR. GEISMAR: 5 Q I'd like to direct your attention, again, to 6 the last page in the concluding statement. Is there 7 anything mentioned about the waiver of a 45-day limit on 8 the investigation? 9 A Yes. 10 Q What is mentioned in that report about -- what 11 did you mention about that 45-day limit, time limit? 12 A Do you want me to read the whole statement? 13 Is that what you need me to do? 14 Q If you could read the paragraph before that. 15 A Because what it had, the interview time was 16 tolled for a period of 45 days by written waiver, which 17 is the rule, has to be by written waiver, and the 18 interview process was completed on February 4, 2009. 19 Q So a written waiver was obtained in this case? 20 A Yes. 21 Q Do you know if a written waiver was obtained 22 in Mr. Officer Prevatt's case? 23 A There was no need to obtain a written waiver. 24 Q Why? 25 A This case you have a period of time, 45 days, VOLUSIA REPORTING COMPANY 112 1 in which to complete an Internal Affairs' investigation. 2 Our time went beyond that based upon the fact that we 3 had numerous people on different shifts and stuff of 4 that nature. So -- plus, we had complaint and we had to 5 schedule things up, so it ended up going -- it was a 6 large, very large, investigation based upon the charges 7 themselves and the number of people involved that were 8 actually alleged to have committed these acts. So it's 9 a completely different involvement. 10 Q Are you saying that Officer Prevatt's case was 11 not subject to that 45-day time limit? 12 A That's not what I'm saying. 13 Q Okay. I don't understand the answer. 14 A I'm saying it's 45 days to complete an 15 investigation. 16 Q Right. And in this case you obtained a waiver 17 so you could go beyond that 45 days. 18 A Yes, yes. 19 Q My question is, is there any reason why in 20 Officer Prevatt's case an extension wasn't obtained from 21 the -- from Officer Prevatt? 22 A I cannot tell you, sir. 23 Q Okay, thank you. 24 There's one final thing on this report. I'd 25 like you to read this statement for me, if you would. VOLUSIA REPORTING COMPANY 113 1 Starts with, "All interviews." 2 A "All interviews were conducted in accordance 3 with the Law Enforcement Officer and Corrections Officer 4 Bill of Rights which requires interviews to be conducted 5 while reporting parties are on duty." 6 Any further than that? 7 Q Thank you. I think that's it. 8 Are you aware of any reason why this type 9 language was not put into a final report for Officer 10 Prevatt? 11 A It was a completely different format at this 12 point, two different directors. 13 Q Same Officers' Bill of Rights, pretty much? 14 A Same Officer Bill of Rights, pretty much, yes, 15 but it's just a new formatting to the reports. If you 16 compared the two reports, the one that you brought 17 forward on the alleged rape case, it's laid out 18 completely different from previous reports. 19 Q Okay. I understand. Thank you. 20 A Okay. 21 Q Do you know when the Officers' Bill of Rights 22 went into effect? 23 A When it became a statute? 24 Q Statute. 25 A No, I don't. VOLUSIA REPORTING COMPANY 114 1 Q Do you know when it was amended? 2 A It was amended in the past couple years, but I 3 couldn't tell you the exact date. 4 Q Would you be surprised if I told you that the 5 amendment was effective 7/1/07? 6 MS. JONES: Objection, leading. 7 A Like I said, I could not tell you exactly. 8 THE COURT: Sustained. 9 Don't answer the question when there is an 10 objection. Sustained. 11 Q Do you know when Officer Prevatt alleged the 12 incident -- the incident involving Officer Prevatt, when 13 that, allegedly, occurred? 14 A I don't know the date that the alleged 15 incident occurred. I just know the date that it was 16 referred to the Internal Affairs' department. 17 Q And when was that? 18 A That was July 2007. 19 Q Do you have a date? Do you have a specific 20 date? 21 A July 10, 2007. 22 Q Do you know if that was after the amendment to 23 the bill of rights? 24 A Sir, I don't know what date. 25 MS. JONES: Objection. VOLUSIA REPORTING COMPANY 115 1 MR. GEISMAR: I have nothing further at this 2 time. 3 MS. JONES: Thank you, Judge. 4 CROSS-EXAMINATION 5 BY MS. JONES: 6 Q Captain Dofflemeyer, I'd like you to try to 7 explain for us this change in format with regards to the 8 form. 9 First let me ask you this: Has anything 10 changed in the way you conduct your Internal Affairs' 11 investigations since Director Ford has come into the 12 position she's in? 13 A Yes. 14 Q In terms of your actually conducting the 15 investigation? Not the formal report but how you 16 conduct your investigation, that hasn't changed, has it? 17 A No. 18 Q You interview witnesses and take it in the 19 direction it goes? 20 A Correct. 21 Q Is that correct? Now, when Director Ford came 22 into the position that she's in, isn't it true that she 23 asked you -- you're in charge of Internal Affairs for 24 her department, correct? 25 A Yes, ma'am. VOLUSIA REPORTING COMPANY 116 1 Q And isn't it true that she asked you to change 2 the format of these final reports so there would be more 3 information in there for her? 4 A Yes. 5 Q And isn't it also true that whether it's 6 Director Ford or Director Clifford, if the director 7 wants to look at your actual Internal Affairs' file and 8 read the statements that you've taken and read the 9 interviews and look at everything that you gathered in 10 your investigation and not just rely on the final 11 report, then the director can do that; isn't that true? 12 A Correct. 13 MR. GEISMAR: Object to form. 14 THE COURT: I'm sorry? 15 MR. GEISMAR: Compound. It was a compound 16 question. 17 THE COURT: Sustained. 18 BY MS. JONES: 19 Q So when you complete an investigation, an 20 Internal Affairs' investigation, you prepare a final 21 report, and it's your testimony here today that since 22 Director Ford took office, that that format of that 23 final report has changed; isn't that true? 24 A That is true, yes. 25 Q But isn't it true that nothing about how you VOLUSIA REPORTING COMPANY 117 1 handled the bill of rights, for example, for corrections 2 officers has changed, has it? 3 A No. 4 Q And isn't it true that Director Ford just 5 wanted you to put more information in the final reports 6 for her use? 7 A Yes. 8 Q In making her decision on discipline? 9 A Yes. 10 Q Okay. The Internal Affairs' investigation 11 regarding the alleged rape -- and you may have answered 12 this. I apologize if you did -- there were no sustained 13 findings in that case, were there? 14 A There was no sustained findings, and I believe 15 one or two of the allegations were completely unfounded. 16 Q Okay. No discipline was taken against any of 17 the officers involved; is that correct? 18 A That is correct. 19 Q You were asked earlier about Officer Cook 20 during the racial slur allegations and investigation of 21 Mr. Prevatt. Isn't is it true that Mr. Cook was not 22 asked to give a formal interview because in his 401 that 23 he completed, he said that he was outside and didn't 24 hear anything? 25 A Right, correct. VOLUSIA REPORTING COMPANY 118 1 Q So isn't it true there was no need to 2 interview him formally? 3 A Correct. 4 Q He had already signed a document with his 5 signature that said he didn't hear anything? 6 A Yes. 7 Q And that's why you decided not to interview 8 him; isn't that true? 9 A Yes, ma'am. 10 Q Okay. In this -- do you have a copy? I think 11 you were referring to the October 10th final report. 12 A Yes, ma'am. 13 Q Which actually the judge has a copy of this, 14 as well. And this is the final report on the 15 investigation of Mr. Prevatt that was prepared by you 16 and Captain Modzelewski; is that true? 17 A That's true. 18 Q And in this report, do you set forth the 19 instances of insubordination, the instances of his 20 failure to appear for his interviews that supported the 21 charge of insubordination? 22 A Yes. 23 Q And there were -- there was more than one 24 incident, wasn't there, of insubordination? 25 A There was more than one, yes. VOLUSIA REPORTING COMPANY 119 1 Q You also were asked earlier about whether you 2 informed Mr. Prevatt about the charges against him. 3 When you initiate an interview of a subject under the 4 bill of rights, what are you required to tell them 5 about -- are you required to tell them anything about 6 the charge against them? 7 A We do. We do it prior to their interview. 8 Q Okay. You make them aware of what the 9 allegations are? 10 A Yes, ma'am. 11 Q And in terms of once an IA is concluded and 12 you submit the report to the director, isn't it true 13 that it's the director's job if there is discipline to 14 be taken, to give the employee a notice of intent to 15 take discipline? 16 A Yes, ma'am. 17 Q And within that notice of intent, isn't it 18 true that it gives the employee a certain period of time 19 to respond to those charges? 20 A Yes, it does. 21 Q And do you know if in this case Mr. Prevatt 22 was given a chance to respond to the charges against him 23 by Director Clifford? 24 A I believe so, yes. 25 Q Okay. Now, you were asked about inmates that VOLUSIA REPORTING COMPANY 120 1 you -- or witnesses that you had interviewed. And I 2 understand it has been a long time and I know that 3 you've had several large investigations since this case. 4 A Yes. 5 Q But I'd ask you to refer to this report. And 6 to the extent that you have an independent recollection, 7 isn't it true that when you interviewed Mr. Prevatt and 8 asked him about these allegations of the inmates that he 9 had made a racial slur, that he provided you with the 10 name of Inmate Pletcher? 11 A Yes. 12 Q And also provided you with a document that 13 purported to clear him of the charge of making a racial 14 slur that was written by Inmate Pletcher? 15 A Yes. 16 Q And didn't he also ask you to go interview, or 17 go talk to Mr. Pletcher about it? 18 A Yes. 19 Q And isn't it true that when you went and 20 interviewed Mr. Pletcher, he was no longer in custody? 21 Is that true? 22 A That's correct. 23 Q And isn't it true that when you interviewed 24 inmate -- or Mr. Pletcher, he's no longer inmate -- that 25 he told you that Mr. Prevatt had asked him to write VOLUSIA REPORTING COMPANY 121 1 something up to clear him or to clear him of the charge 2 of racial -- of making a racial slur? 3 A That's correct. 4 Q And isn't it actually true that Mr. Pletcher 5 said that Officer Prevatt had asked him to lie about it? 6 A Correct. 7 Q Because he was in trouble; isn't that true? 8 A That's correct. 9 Q So your interview of Mr. Pletcher was because 10 of information that was provided to you when you 11 interviewed Mr. Prevatt? 12 A Yes. 13 Q And when you interviewed Mr. Pletcher and -- 14 was that interview under oath? 15 A Yes, it was. 16 Q And he gave you this information that 17 indicated to you, isn't it true, that he also gave you 18 the name of another inmate who said that Mr. Prevatt had 19 asked him to write him a letter to exonerate him? 20 A Correct. 21 Q Did you also interview, then, that other 22 inmate? 23 A Yes, we did. 24 Q Okay. So in your interviewing of 25 Mr. Pletcher, isn't it true that that provided the basis VOLUSIA REPORTING COMPANY 122 1 for additional charges against Mr. Prevatt? 2 A Yes. 3 Q Ultimately, the conclusion of your internal 4 investigation, yours and Captain Modzelewski's, there 5 were a number of charges made that were sustained 6 against Mr. Prevatt; isn't that true? 7 A That's true. 8 Q And one of those charges was that he had 9 attempted to tamper with or had tampered with a witness 10 in this case against him; isn't that true? 11 A That's correct. 12 Q And isn't it true that that is a violation of 13 state law? 14 A Yes, it is. 15 Q It's a criminal charge? 16 A Yes. 17 Q And you felt, based on your interview of the 18 inmate involved, as well as the other people that were 19 in the area at the time, that Mr. Prevatt had in fact 20 committed that offense? 21 A Correct. 22 Q And that's why you sustained that allegation? 23 A Yes. 24 Q And you also sustained the allegations of 25 insubordination which were based on his failure to VOLUSIA REPORTING COMPANY 123 1 appear for his interview three or four times? 2 A Yes. 3 Q And did you also sustain an allegation that he 4 had perjured himself in his Internal Affairs' interview? 5 A Yes, we did. 6 Q And wasn't that based on the testimony that he 7 gave you about Mr. Pletcher giving him a letter 8 exonerating him of the racial slur allegation versus 9 what you heard from Mr. Pletcher when you interviewed 10 him? 11 A Correct. 12 Q Did you believe that Mr. Pletcher had been 13 more or less forced by Officer Prevatt to write this 14 note that appeared to exonerate him of the racial slur? 15 A He appeared to be definitely influenced by 16 Mr. Prevatt to do so. 17 Q And how about the other inmate, Sean Jones, 18 did he also appear to have been intimidated by 19 Mr. Prevatt? 20 A Yes. 21 Q And is that part of the basis for your charges 22 against Mr. Prevatt that were sustained? 23 A Yes. 24 Q That he abused his powers as a law enforcement 25 Officer -- or a correctional officer, excuse me? VOLUSIA REPORTING COMPANY 124 1 A Correct. 2 MS. JONES: Just one second, Judge. 3 (Brief pause.) 4 Q The incident of the tampering with the witness 5 with regards to the inmate that was in custody, isn't it 6 true that Officer Prevatt -- your investigation 7 concluded that he -- and there were witnesses to the 8 fact that he had gone to the unit when he was off duty 9 but in uniform to attempt to talk to one of the 10 witnesses against him? 11 A Correct. 12 Q You don't know what he said during that, 13 obviously, but -- do you? You don't know what he said 14 to the inmate? 15 A I wasn't party to that. 16 Q Okay. But the mere appearance of what he did 17 was part of the reason that you sustained that charge? 18 A Correct. 19 MS. JONES: I think that's all I have at this 20 time, Judge. 21 THE COURT: Mr. Pletcher and what was the 22 other inmate's name of the two who gave -- who the 23 Petitioner, purportedly, asked for the exonerating 24 statement was? 25 THE WITNESS: One was Anthony Pletcher. The VOLUSIA REPORTING COMPANY 125 1 other was Sean Jones. 2 THE COURT: Okay. At the time they were 3 supposedly asked by the Petitioner for the 4 exculpatory statement, were they both still 5 inmates? 6 THE WITNESS: Yes. 7 THE COURT: Okay. 8 Redirect? 9 REDIRECT EXAMINATION 10 BY MR. GEISMAR: 11 Q Did you at any time ask Officer Prevatt if he 12 went to see either of these inmates? 13 A I wanted to ask him if he did. That's when I 14 sent him another notice for him to report to Internal 15 Affairs so that we could go over that event, but 16 Mr. Prevatt failed to report and I was unable to. 17 Q In the -- in that report regarding the rape 18 incident that's been admitted into evidence, do you have 19 an opinion as to whether the procedural safeguards that 20 were employed, such as the witness interviews and the 21 other safeguards, were related to the fact that no 22 disciplinary action was taken against the officers in 23 that case? 24 MS. JONES: Objection, Your Honor. I think 25 that's beyond the scope of this witness's VOLUSIA REPORTING COMPANY 126 1 knowledge. 2 MR. GEISMAR: No, I think -- 3 MS. JONES: He asked her for her opinion about 4 that. 5 MR. GEISMAR: I would disagree. She's an 6 officer -- 7 MS. JONES: I don't think she's qualified. 8 MR. GEISMAR: She's an officer in Internal 9 Affairs, and she deals with investigations all the 10 time and the results of the investigations. 11 THE COURT: Objection's overruled. She can 12 answer that. 13 THE WITNESS: Could you ask that question 14 again, please. 15 BY MR. GEISMAR: 16 Q Do you have an opinion as to whether the 17 procedural safeguards that were afforded the officers in 18 the rape case may have resulted in no disciplinary 19 action being taken against them? 20 A The procedures -- Officer Bill of Rights and 21 statute is followed in all investigations, so I don't 22 quite understand what you're -- what you're asking. 23 Q Do you think that the fact that it was 24 followed in that case -- 25 A It was followed in Mr. Prevatt's case, too. VOLUSIA REPORTING COMPANY 127 1 Q Do you think the fact that it was followed in 2 that rape case affected the fact that no disciplinary 3 action was taken? 4 A No disciplinary action was taken in that case 5 because of the facts that were presented and none of the 6 allegations were sustained. There was no evidence to 7 sustain the allegations. 8 Q Right. I think we're on the -- I think we're 9 on the same page. 10 You were asked on cross-examination about 11 Officer Cook not hearing anything. Were you aware that 12 Officer Cook did hear noises? 13 A I'd have to look at his report. 14 Q Okay. If it were not true that Officer Cook 15 didn't hear anything, do you think -- would that change 16 your opinion as to whether he should have been 17 interviewed? 18 A If you hear noises? I think there is a 19 difference between hearing a noise and hearing a 20 statement made. Like I said, I'd have to look at that 21 report. 22 Q You don't think it would be something you 23 would want to check out with him, with the witness, 24 since it's an important matter? 25 A It's a jail. There's noises all the time in a VOLUSIA REPORTING COMPANY 128 1 jail. Unless a statement or he witnessed something -- 2 and I believe his statement, his written report, said 3 that he witnessed nothing at all. 4 Q Did you list any of the -- you didn't 5 interview him, though, right, so you wouldn't know 6 firsthand, would you? 7 A I think that's -- no, I did not speak with 8 Mr. Cook. 9 Q Were the incidents of alleged insubordination 10 on Officer Prevatt's part documented? 11 A Mine was documented in a final report. 12 Q Do you have statements -- 13 A I can't answer for Captain Modzelewski. 14 Q Did you document statements from the officers 15 who delivered the notices to Officer Prevatt? 16 A There was documentation provided by those 17 officers that delivered notice. 18 Q Do you know if that's contained in the final 19 report? 20 A There would be -- there is no reason to put 21 that in the final report. That's in the case file. 22 Q You're basing your sustaining the allegation 23 on the fact that he was given notice, correct? 24 A Of the insubordination? 25 Q Right. VOLUSIA REPORTING COMPANY 129 1 A Yes. 2 Q And you don't think that that's something that 3 would be important to put in a final report, 4 documentation of the -- 5 A There is documented in the final report that 6 he failed to appear. 7 Q My question is, do you think -- do you think 8 that would be an important -- 9 A To attach the document to this? 10 Q Please let me finish. 11 A I'm sorry. 12 Q Do you think that if you're sustaining a 13 charge of insubordination, it would be important to 14 document the actual notice that was given to him? 15 A In the final report? I don't understand. 16 Q If you found the allegation of insubordination 17 sustained because Officer Prevatt did not come to a 18 meeting -- 19 A Okay. 20 Q -- do you think it would be important to 21 document in that same report what type of notice was 22 given to him, when it was given to him, by whom it was 23 given to him? Do you think that would be something 24 important? 25 A I'm not sure that was something -- can I read VOLUSIA REPORTING COMPANY 130 1 real quick to see what's listed? (Reading.) 2 It's documented in the final report that 3 notice was given, the date that it was given, and that 4 Mr. Prevatt failed to report for that. 5 Q Doesn't say who gave it, though, does it? 6 A No. The case file would have that information 7 but it does not have it in the report. 8 Q Doesn't say what method of delivery? 9 A That's in the case file. 10 Q But it's not in the final report sustaining 11 the charges? 12 A No. It's just listed the date -- 13 Q Okay. 14 A -- that it was given. 15 Q Was Officer Prevatt given any opportunity to 16 respond to these charges of insubordination in any 17 manner? 18 A Once the final report is submitted to the 19 director, then that would have to be a question that you 20 ask the director of what was given -- 21 Q Did you at any time give Officer Prevatt an 22 opportunity to respond to the charges of insubordination 23 that you sustained in your memo? 24 MS. JONES: Objection; asked and answered. 25 THE COURT: Overruled. VOLUSIA REPORTING COMPANY 131 1 A Did I specifically go to Mr. Prevatt and, say, 2 address this insubordination, no, I did not. Did I send 3 him another interview letter in order for him to come in 4 and testify again, yes, I did, but he did not report. 5 Q Do you know what Inmate Pletcher was serving 6 time for? 7 MS. JONES: Objection, relevance. 8 MR. GEISMAR: It goes to his -- it goes to his 9 veracity and his motive in making the statements. 10 THE COURT: Considering the statement has come 11 in, I'll let you get your answer. Go ahead. 12 A Without looking at the case file, no, I do 13 not. 14 Q Do you have any opinion -- dealing with these 15 inmates on a regular basis, do you have any opinion as 16 to whether these inmates fabricate statements at times? 17 A Do I have an opinion to that? 18 Q Right. 19 A Are they capable of it? Sure, anybody is 20 capable of fabricating a story. 21 Q What's your experience been? Do you have an 22 opinion, based on your experience dealing with inmate 23 statements? 24 A I really don't have an opinion. I base things 25 on facts and things that you can look into that have VOLUSIA REPORTING COMPANY 132 1 substance to them. I can't say that I have an opinion 2 on that. Every party that you deal with is different. 3 Q Did you personally follow up on Officer 4 Prevatt's request that Officer Morris be interviewed? 5 A I don't recall Mr. Prevatt -- was having a 6 conversation. I'm not saying it did not happen, but I 7 don't recall the conversation. 8 Q Did you personally ever follow up on Officer 9 Prevatt's request that Officer Bidwell be interviewed? 10 A I don't remember Mr. Prevatt ever making that 11 request to me. 12 Q Did you ever ask him if he had any additional 13 witnesses he wanted to produce to defend himself? 14 A I would have to look at the transcript. I 15 know at the end of all my interviews I ask the parties, 16 is there anything else that they want, you know, to 17 state, do they want to say. I always give somebody an 18 opportunity at the very end to add additional 19 information. 20 Q You didn't interview Officer Morris, did you? 21 A Not that I recollect. 22 Q Or Officer Bidwell? 23 A Not that I recollect. I don't recall 24 Mr. Prevatt asking that to be done. 25 Q Did you ask Officer Prevatt at any time VOLUSIA REPORTING COMPANY 133 1 whether he went to see any of the inmates, Pletcher or 2 the other inmate? 3 A I tried to. I sent notice for him to report 4 to Internal Affairs and he failed to report. 5 Q Okay. Did you know that there were ten 6 criminal complaints placed against Officer Prevatt? 7 A Ten criminal complaints? 8 Q Yes. 9 A Yes. 10 Q You were aware of that? 11 A I did not do the document, but I'm aware of it 12 through the process here, yes. 13 Q Are you aware of -- 14 A I'm not sure if it's exactly ten. I don't 15 know the number but ... 16 Q Do you know if Officer Prevatt was ever 17 advised that those charges were brought against him? 18 A I do not know. I did not complete the 19 arrest -- or the affidavit, so I do not know. 20 Q When did you become aware that the criminal 21 complaints had been brought against Officer Prevatt? 22 A I could not tell you. I don't know. 23 Q Did Officer Prevatt continue to work at the 24 facility after you became aware of the charges that had 25 been brought against him? VOLUSIA REPORTING COMPANY 134 1 A Sir, I could not tell you the time line. I do 2 not know. 3 Q Did Inmate Pletcher, was his testimony always 4 consistent? 5 A Once again, I'd have to go back and review the 6 transcript. I don't recall anything that was not 7 consistent in his testimony. Once again, it's been 18 8 months. You know, it's been a period of time -- 9 Q But your independent recollection is that he 10 was a credible witness? 11 A I don't remember anything that would lead me 12 to believe he wasn't. 13 Q It didn't appear as though his testimony was 14 varied at any point? 15 A Not that I remember. 16 Q Were you aware of whether Director Clifford 17 charged Officer Prevatt with a criminal complaint on 18 September 18 of 2007? 19 A I have no knowledge of that. 20 Q Okay. 21 MR. GEISMAR: Nothing further. Thank you. 22 THE COURT: You may step down. 23 (Witness stands down.) 24 MR. GEISMAR: Is Officer Pronovost here? 25 MS. JONES: No. VOLUSIA REPORTING COMPANY 135 1 MR. GEISMAR: I think Officer Pronovost was 2 subpoenaed. Is there a reason why he's not here? 3 MS. JONES: I don't know if he was subpoenaed 4 or not. 5 MR. GEISMAR: We've got the -- 6 MS. JONES: Do you have return of service that 7 shows he was properly subpoenaed with a check? 8 MR. GEISMAR: Yes. Yes, we do. 9 (Brief pause.) 10 MS. JONES: My understanding from Director 11 Clifford is that he told her as of yesterday he had 12 never been served, so I don't know, Judge, if he 13 was or not, just from talking to her. 14 THE COURT: You're saying he's not present? 15 MS. JONES: He's not out there, Judge. 16 MR. GEISMAR: We have a subpoena. 17 MS. JONES: Do you have return of service? 18 MR. GEISMAR: Return of service? 19 No, it doesn't have the return of service. 20 Evidently we don't have the return of service. 21 What about Mr. Johnson? I think he's not -- 22 Johnson is not here. 23 MS. JONES: No. 24 MR. GEISMAR: Right. That was quashed. 25 MS. JONES: Uh-huh. VOLUSIA REPORTING COMPANY 136 1 THE COURT: He was the person from the 2 commission? 3 MR. GEISMAR: Right, right. 4 MS. JONES: No, Johnson -- I'm sorry, Bonner 5 was the commission. Johnson was the sheriff's 6 office investigator that had -- that was going to 7 be in another courtroom, and you asked us to try to 8 see if he could be available. 9 THE COURT: We'll deal with that if he's not 10 available by the close of the Petitioner's case, 11 make an effort to have him available. 12 MR. GEISMAR: Sergeant Brown? 13 MS. JONES: Yes, I think Sergeant Brown's 14 here. 15 MR. GEISMAR: Your Honor, can I take like a 16 30-second break? 17 THE COURT: Yeah, let's take a couple minutes. 18 (Short recess.) 19 (The proceedings continued in Volume II.) 20 21 22 23 24 25 VOLUSIA REPORTING COMPANY 137 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 3 ALBERT L. PREVATT, SR., 4 Petitioner, 5 vs. Case No. 08-4911 6 COUNTY OF VOLUSIA, 7 Respondent. 8 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 9 TRANSCRIPT OF PROCEEDINGS HEARING BEFORE THE HONORABLE P. MICHAEL RUFF 10 ADMINISTRATIVE LAW JUDGE 11 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 12 VOLUME II (Pages 137 through 216) 13 DATE TAKEN: APRIL 22, 2009 14 TIME: COMMENCED AT 11:10 A.M. 15 CONCLUDED AT 4:38 P.M. 16 PLACE: VOLUSIA COUNTY COURTHOUSE 101 NORTH ALABAMA AVENUE 17 DELAND, FLORIDA 32724 STENOGRAPHICALLY 18 REPORTED BY: SHAWNA STIMSON SMITH, RPR, FPR COURT REPORTER and NOTARY PUBLIC 19 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 20 21 VOLUSIA REPORTING COMPANY 22 432 SOUTH BEACH STREET DAYTONA BEACH, FLORIDA 32114 23 T. 386-255-2150 F. 386-258-1171 WWW.VOLUSIAREPORTING.COM 24 25 VOLUSIA REPORTING COMPANY 138 1 C O N T E N T S 2 VOLUME II (Pages 137 through 216) 3 PETITIONER'S CASE IN CHIEF (Cont'd) 4 TESTIMONY OF SERGEANT RODNEY L. BROWN 5 Direct Examination by Mr. Geismar 139 Cross-Examination by Ms. Jones 141 6 Examination by the Court 143 Recross-Examination by Ms. Jones 144 7 TESTIMONY OF ALBERT PREVATT, SR. 8 Direct Examination by Mr. Geismar 145 Cross-Examination by Ms. Jones 167 9 Redirect Examination by Mr. Geismar 189 10 PETITIONER RESTS 196 11 RESPONDENT'S CASE IN CHIEF 12 RESPONDENT'S MOTION FOR DISMISSAL 196 13 TESTIMONY OF DIRECTOR MARILYN FORD Direct Examination by Ms. Jones 197 14 RESPONDENT RESTS 205 15 CLOSING STATEMENTS 16 By Mr. Geismar 205 By Ms. Jones 209 17 CERTIFICATE OF REPORTER 216 18 - - - - - 19 RESPONDENT'S EXHIBITS IN EVIDENCE 20 1 - Notice of Intent to Dismiss 213 21 2 - Notice of Dismissal 213 22 3 - Personnel Board Summary of Findings 213 23 4 - Order Denying Amended Petition for Writ of 24 Certiorari 213 25 - - - - - VOLUSIA REPORTING COMPANY 139 1 P R O C E E D I N G S 2 (Continued from Volume I.) 3 THE COURT: Hearing will come to order. 4 (Whereupon SERGEANT RODNEY L. BROWN was 5 duly sworn to tell the truth and testified as 6 follows:) 7 DIRECT EXAMINATION 8 BY MR. GEISMAR: 9 Q Would you state your name for the record. 10 A Sergeant Rodney L. Brown. 11 Q And where are you currently employed? 12 A Volusia County Corrections. 13 Q And what's your position with the corrections? 14 A Corrections sergeant. 15 Q When were you promoted to sergeant? 16 A May 5th, 2007. 17 Q Were you involved in the safety rounds at the 18 corrections facility on the night that Inmate Jack 19 Nelson died? 20 A Yes. 21 Q And were you disciplined in March of 2007 for 22 failing to make rounds and properly reporting? 23 A I don't recall the date but, yes, I was 24 disciplined. 25 Q And your promotion to sergeant, how soon after VOLUSIA REPORTING COMPANY 140 1 you were disciplined were you promoted to sergeant? 2 A You said that was in March? It was May, May 3 of that year. 4 Q Were you the supervisor in charge for the 5 section of the jail in which Inmate Nelson died? 6 A Yes. 7 Q Were you suspended by Director Clifford? 8 A Yes. 9 Q As a result? 10 A Yes. 11 Q And do you recall when that was, the 12 suspension? 13 A I don't. 14 Q How long after the suspension was your 15 promotion to sergeant? 16 A I don't recall exactly when the suspension 17 was, but it was May of that year when the promotion took 18 place. 19 Q Okay. Were you ever criminally investigated 20 for your failure in regard to the Nelson event, the 21 deceased inmate? 22 A Not to my knowledge. 23 Q Do you know if any criminal charges were ever 24 pressed against you? 25 A Not to my knowledge. VOLUSIA REPORTING COMPANY 141 1 Q Do you know if anyone else was disciplined as 2 a result of the rounds on the Inmate Nelson incident? 3 A Yes. 4 Q Who else was disciplined? 5 A Officer Michael Zemba and Officer Charles 6 Coffin. 7 Q Are they still employed, to the best of your 8 knowledge? 9 A No. 10 Q Do you know whether they were terminated as a 11 result of that incident? 12 A No, they were not. 13 MR. GEISMAR: I have nothing further. 14 MS. JONES: Cross, Judge? 15 THE COURT: Go ahead. 16 MS. JONES: Thank you. 17 CROSS-EXAMINATION 18 BY MS. JONES: 19 Q Sergeant Brown, the issue regarding what you 20 were disciplined for in 2007, the actual incident 21 happened December 2006; isn't that correct? 22 A I'm not sure. 23 Q Okay. Okay. And the nature of the policy 24 that you were charged with violating had to do with 25 making a visual check of an inmate during your shift; VOLUSIA REPORTING COMPANY 142 1 isn't that correct? 2 A Correct. 3 Q And you were not charged with insubordination 4 in that case, were you? 5 A No, I was not. 6 Q And you were not charged with tampering with a 7 witness, were you? 8 A No, I was not. 9 Q You were not charged with perjury, were you? 10 A No. 11 Q And you were not charged with -- sorry, one 12 second -- making false official statements? 13 A No, I wasn't. 14 Q Officer Zemba and Officer Coffin, neither one 15 of them work there anymore; is that correct? 16 A Correct. 17 Q And neither one of them were terminated for 18 what happened in this December 2006 incident with 19 Mr. Nelson? 20 A Correct. 21 Q And isn't it true that Officer Zemba and 22 Coffin are both white? 23 A Yes. 24 MS. JONES: Thank you. That's all I have, 25 Judge. VOLUSIA REPORTING COMPANY 143 1 MR. GEISMAR: Nothing further. 2 MS. JONES: Can he be released? 3 THE COURT: Excuse me, one was Officer Coffin. 4 What was the other name? 5 THE WITNESS: Michael Zemba. 6 THE COURT: How do you spell that? 7 THE WITNESS: Z-E-M-B-A. 8 THE COURT: Thank you. 9 Redirect? 10 MR. GEISMAR: Nothing further. 11 THE COURT: Why are Officers Coffin and Zemba 12 no longer employed? 13 THE WITNESS: I don't know the details of why 14 they're not there any more. I believe Zemba was 15 terminated and I believe Officer Coffin resigned. 16 THE COURT: Were they involved in the same 17 disciplinary matter that your suspension resulted 18 from? 19 THE WITNESS: Yes. 20 THE COURT: And that was with regard to the 21 inmate who died? 22 THE WITNESS: It was with regards to not 23 completing the security rounds. 24 THE COURT: Rounds. 25 THE WITNESS: Yes. VOLUSIA REPORTING COMPANY 144 1 THE COURT: Okay. Do you know why Officer 2 Zemba was terminated? 3 THE WITNESS: I don't know. 4 THE COURT: All right. 5 Anything further of the witness based upon my 6 questions? 7 MS. JONES: Just -- I'm sorry, go ahead. 8 MR. GEISMAR: Nothing further. 9 RECROSS-EXAMINATION 10 BY MS. JONES: 11 Q Mr. Nelson's death and custody had nothing to 12 do with you not making your rounds, did it? 13 A No, it didn't. 14 MS. JONES: Okay. That's all. 15 THE COURT: You can step down. 16 MS. JONES: Can he be released? He apparently 17 worked all night. 18 MR. GEISMAR: Yes. 19 THE COURT: He's released. 20 (Witness stands down.) 21 MS. JONES: Thank you, Judge. 22 Judge, we made a call to Investigator Johnson 23 and he is in Daytona but he said he would head this 24 way. He was done with court. He had that this 25 morning, actually, and was released so he is headed VOLUSIA REPORTING COMPANY 145 1 this way actually from Tiger Bay Road, which is 2 halfway between Daytona and here. 3 THE COURT: Okay, thank you. 4 MR. GEISMAR: I'm going to call the 5 Petitioner, Al Prevatt. 6 (Whereupon, ALBERT L. PREVATT, SR., was 7 duly sworn to tell the truth and testified as 8 follows:) 9 DIRECT EXAMINATION 10 BY MR. GEISMAR: 11 Q Would you state your name for the record. 12 A Albert L. Prevatt, Sr. 13 Q And are you currently employed? 14 A Yes, sir. 15 Q Where are you currently employed? 16 A I work for a security firm. 17 Q When did you last work for Volusia County 18 Division of Corrections? 19 A I was wrongfully terminated on 11/5/07, sir, 20 which they put down -- they put down something different 21 but ... 22 Q What was the basis -- your understanding was 23 the basis for the termination? 24 A They made a slew of allegations against me 25 that to me were never properly investigated or VOLUSIA REPORTING COMPANY 146 1 sustained. 2 Q Was there an incident involving Ronald 3 Williams back in July of 2007? 4 A Yes, sir. 5 Q What happened on that occasion? 6 A The inmate said, "When am I going to get my 7 blah blah blah, shower?" 8 I said, "You're not scheduled for a shower, 9 you're not getting a shower." And he went on to use 10 profanities towards me and I said, "Whatever you do, do 11 not get in the shower." 12 Q Did you make a racial slur at that time? 13 A No, I did not. 14 Q Were you ever interviewed by Internal Affairs 15 regarding this incident? 16 A Yes, sir. 17 Q When did that interview -- 18 A September 4th of '07, 2007. 19 Q Had you received notice from Internal Affairs 20 prior to September of 2007 advising you that they wanted 21 you to appear for an interview? 22 A Yes, sir. 23 Q When did you receive notice? 24 A I don't recall the exact date, but it was some 25 time in July. VOLUSIA REPORTING COMPANY 147 1 Q And how did you receive notice that they 2 wanted to interview you? 3 A It was in, like, a letter form. 4 Q And when were you asked to report for an 5 interview? 6 A I don't remember the date. 7 Q And did you report for an interview on the 8 date it was requested? 9 A No. What had happened was I had a dental 10 emergency while I was at work. I was on the midnight 11 shift and my back molar broke in half and I showed the 12 captain. And I went home about 5:00 in the morning, and 13 then I had dental surgery at 8:00 -- or about 8:30 that 14 morning, that same morning. 15 Q Did you advise Internal Affairs that you were 16 leaving? 17 A No, there was no one there for Internal 18 Affairs at that time, but the captain knew. I even 19 showed him my tooth that was broken in half. He knew I 20 was sick. 21 Q Which captain? 22 A Captain Rodney Prince. 23 Q When did you let him know you were leaving? 24 A It was approximately about 5:00 in the 25 morning. VOLUSIA REPORTING COMPANY 148 1 Q When did you next go back to the correctional 2 facility? 3 A I went, had dental surgery, and then they had 4 to cut the tooth out, cut it to the gum, and then they 5 put me on some real heavy medication and I was supposed 6 to go back that night to work -- I believe it was the 7 latter part of July -- but I called in sick because I 8 was on medication. And then after that I went on 9 vacation. 10 Q Had the vacation been approved? 11 A It had been approved approximately one year 12 before that. 13 Q Did anyone tell you -- were you advised by 14 anyone that you shouldn't take the vacation? 15 A No, sir. 16 Q Were you contacted -- when was the next time, 17 after the letter in July of '07, that you were requested 18 to interview? 19 A My wife and I went on a vacation for 20 approximately -- I believe it was like two weeks, and I 21 believe it was some time around the middle of August of 22 the next month, August of '07. 23 Q And how were you contacted at that time? 24 A I believe, the best I can recall, it was in 25 letter form again. VOLUSIA REPORTING COMPANY 149 1 Q And when did they want to interview you then? 2 A I don't remember the date, but he told me 3 to -- "him" being Captain Kenneth Modzelewski, told me 4 to report to his office, I believe it was on the 20th of 5 August, at which time I did report to his office and he 6 wasn't there. 7 And Director Clifford was there standing by 8 his door and I was standing by his door. So I asked 9 Director Clifford to give -- I had wrote a report 10 because, you know, I didn't believe he was going to be 11 there, either, so I gave the report to her to ask him to 12 reschedule the interview where it would be on my shift, 13 as per Florida Statute 112.532, the Officer Bill of 14 Rights. 15 Q What was the next communication you had from 16 Internal Affairs? 17 A I don't remember exactly when the next format 18 was. I believe maybe a couple days after that. I don't 19 really remember the date. But he, in a memo that I 20 received later, after I was terminated, said that my 21 request to be interviewed on my shift at 2100 hours, 22 which I was on midnight shift at the time, he said had 23 little to no merit, you know. And I never even seen 24 this memo, and he charged me with two counts of 25 insubordination that I never knew about, never was given VOLUSIA REPORTING COMPANY 150 1 the chance to respond to the allegations. 2 He investigated his own complaint. He came to 3 a conclusion that I was guilty. He submitted this memo 4 that you had him read into the evidence today. I was 5 never given a chance to respond to these allegations or 6 to Captain Dofflemeyer's allegations of insubordination, 7 nor was I even advised they even existed. 8 Q The August 20th meeting, did you ever come to 9 learn why Captain Modzelewski was not there? 10 A No, sir. 11 Q Did you speak with him at any point after 12 that? 13 A Well, whenever he wrote me back -- I'm trying 14 to remember if he wrote me back or somebody wrote me 15 back and said that -- something to the effect that he 16 wasn't going to meet me on my schedule at 2100 hours, 17 you know, something to that effect. I don't remember 18 exactly the way it was wrote. 19 Q Were there any other requests that you 20 interview with Internal Affairs other than what you've 21 told us about? 22 A The September the 4th, 2007. 23 Q Is that when you did interview? 24 A Yes, and Captain Modzelewski was there. 25 Q When was that conducted? At what time? VOLUSIA REPORTING COMPANY 151 1 A It was conducted approximately about 10:25 or 2 10:28 in the morning and Captain Modzelewski was there, 3 but then I explained to him, whenever I seen him in 4 person, why I didn't show up. And he said, "Well, 5 whatever you say to me is okay with me, Mr. Prevatt. 6 You know, I understand." 7 I told him I had a dental emergency and he 8 said he was okay with that. But unbeknownst to me, he 9 had done wrote me up twice for insubordination with an 10 August 23rd memo that I was never informed about nor 11 given a chance to respond, as I testified about already. 12 Q When you met with him on September 4th, was 13 that during your regular hours? 14 A He -- after our initial conversation on 15 September the 4th, he turned the investigation over to 16 Captain Dofflemeyer, then he walked out the office. But 17 like I said, I had the initial conversation with him, 18 but then he walked out. Then I interviewed with Captain 19 Dofflemeyer. 20 Q Were you on regular duty at that time? 21 A No. They would not meet me on my scheduled 22 hours. I was on the midnight shift. The time that I 23 interviewed on September the 4th was approximately 10:26 24 or 10:28 in the morning. 25 Q When you -- how long was your interview with VOLUSIA REPORTING COMPANY 152 1 Captain Modzelewski? 2 A I never interviewed with Captain Modzelewski. 3 Q How long was the interview with Captain 4 Dofflemeyer? 5 A Approximately -- approximately 35 minutes, 6 give or take a minute or two. 7 Q Did you explain what -- what did the 8 interview -- what subjects, what areas did the interview 9 go into? 10 A She said that we -- basically she said, to the 11 best I can remember, she said that we received a 12 complaint about you. I think it was reference to 13 official officer misconduct, I believe. And she said 14 that the inmate -- there was one inmate that made an 15 allegation, you know, of a racial slur that they claimed 16 I made against the inmate. That's what it was in 17 reference to. 18 Q Did she discuss with you the insubordination 19 charges at all? 20 A No, sir. 21 Q When did you become aware of the 22 insubordination charges? 23 A I was summoned to Director Clifford's office 24 on 11/5/07. I went from midnight shift to day shift 25 back then. On the first five minutes of the shift, VOLUSIA REPORTING COMPANY 153 1 Captain Rodney Prince came and got me, along with 2 Lieutenant Hunter, and they both escorted me to the 3 director's office and she said, "Give me your badge and 4 give me your ID card." 5 And I said, you know, "What did I do?" 6 "Oh, you know what you've been doing for the 7 last couple months. You know what you've been doing for 8 the last couple months." 9 I said, "No, I really don't know what I've 10 been doing for the last couple months. Why don't you 11 tell me what I've been doing for the last couple 12 months." 13 "Oh, you know what you've been doing for the 14 last couple months." 15 So I tried to get an answer out of her and she 16 goes, "Give me your badge and give me your ID card." 17 So I knew then that she was trying to set me 18 up for insubordination charge, and insubordination 19 charge, you know, is a serious offense, assuming that it 20 was true. 21 So I give her the badge and I give here my ID 22 card, and I put down on the paperwork that I did so 23 under duress. And that was on 11/5/07. 24 Q At that point did you know you had been 25 charged with insubordination previously? VOLUSIA REPORTING COMPANY 154 1 A I, while in her office, the little bit of time 2 I was there, I was scanning through the paperwork, and I 3 seen, you know, two charges, I believe -- I believe, 4 best I can remember -- two charges by Modzelewski and 5 one charge by Dofflemeyer and along with 30 or 40 other 6 charges that I was never even told about. I don't 7 remember if there was that many but it was a lot. 8 It was page after page after page of 9 allegations, and I knew it was all lies but, you 10 know ... that's when I found out about the 11 insubordination charge, to answer your question. 12 Q Did you discuss the incident with Inmate 13 Williams with Officer Dofflemeyer? 14 A What do you mean did I discuss? 15 Q Did you discuss the allegations regarding the 16 racial slur? 17 A Yes, I did. 18 Q And did you already tell me about that? Did 19 you tell me what -- did I ask you what you discussed 20 with Captain Dofflemeyer? 21 A She asked me the question did I make a racial 22 slur and I believe I told her no, I did not, or I 23 believe it was something to that effect. 24 Q Did you tell her what happened? 25 A I told her basically what happened, yeah, VOLUSIA REPORTING COMPANY 155 1 that -- to the best I can remember. 2 Q Did you give her the names of any witnesses 3 that you felt should be contacted regarding the 4 incident? 5 A Yes, sir. 6 Q What names did you provide her with? 7 A I know that I told her that Officer Cook -- I 8 said something to the effect during the IA 9 investigation, "Are you going to interview Officer Cook 10 or get a statement from him?" She goes, "Oh, we'll get 11 to that." 12 And I knew by her remark that she never would, 13 the way she said it. 14 Q Did you advise her of any other witnesses who 15 you felt were important? 16 A I don't recall. 17 Q Did you feel that Officer Bidwell should have 18 been interviewed? 19 A Yes, sir. 20 Q For what reason? 21 A Officer Bidwell was the officer -- the second 22 officer working on south wing at the facility when I 23 went over there. Officer Bidwell had, you know, 24 testimony and he testified at my personnel board, that 25 Officer Stormer claimed he -- Officer Stormer claimed VOLUSIA REPORTING COMPANY 156 1 that he walked over there with Officer Bidwell to let 2 the inmate out. Officer Stormer testified at my 3 personnel board that he heard me over tell the inmate, 4 you know, what I supposedly told the inmate. 5 Officer Stormer never left the officer 6 station. Officer Bidwell testified to this at the 7 personnel board. But Officer Stormer, they interviewed 8 Officer Stormer, Captain Dofflemeyer did, but they 9 wanted to get Stormer's statement but not the second 10 officer that worked on the unit with 195 inmates, 11 approximately 195 inmates. 12 Why would you not interview -- you got two 13 officers working a unit, an incident takes place. Why 14 would you interview one officer that testifies the way 15 you want him to testify and not interview the other 16 officer to either support what he's saying is true or 17 totally contradict what he's saying is true? 18 Q Is there any reason why -- did you think 19 Officer -- do you have any opinion as to whether Officer 20 Morris should have been interviewed? 21 A Yes, sir. 22 Q And what was your opinion on that? 23 A He was my supervisor on the night of the 24 alleged incident. 25 Q What information did you think he had VOLUSIA REPORTING COMPANY 157 1 regarding the incident? 2 A He told me -- 3 MS. JONES: Objection, hearsay. 4 THE COURT: Sustained. 5 Q Without telling me what he told you -- I don't 6 want to know what he told you. I'm asking what 7 information you thought he had that would be important 8 to the investigation. 9 A He was my shift manager, you know. He told me 10 don't worry about what the inmate -- 11 MS. JONES: Objection, hearsay. 12 Q Again, I'm not asking you what he told you. 13 What subject areas do you believe he would have 14 testified about if he were interviewed? What do you 15 think he had knowledge of, without telling me what he 16 said? 17 A The inmate -- I'm just trying to clarify the 18 answer, you know, answer to the Judge, also. 19 He would testify something to the effect that 20 the inmate's allegations were -- 21 MS. JONES: Objection, hearsay. 22 A (Continued) I don't know how to even answer it 23 like that. 24 THE COURT: Overruled. He's stating his 25 belief of what testimony the man might give. VOLUSIA REPORTING COMPANY 158 1 A But he's here today. I mean, you know -- 2 Q Just -- 3 A Okay. 4 Q So what areas do you think he would have 5 information regarding? 6 A About what happened that night. You know, he 7 was the shift manager. I mean, he came down there and 8 he had the HUS, housing unit supervisor, Sergeant Pugh, 9 go in there and write statements of what the inmates 10 claimed happened. And not one of the inmates -- not one 11 story was consistent with what the inmate said, but 12 Captain Modzelewski and Captain Dofflemeyer said that 13 ten inmates' statements were, you know, overwhelming 14 documentation of what the inmates said. 15 Q Were you ever advised as to what -- which ten 16 inmates testified against you? 17 A None of them testified against me, to my 18 knowledge. They just took what the statements they 19 wrote, the inmates wrote, "Oh, yeah, he said this and 20 this and that," and they took statements as gospel and 21 run with 'em. 22 Q Were you ever advised that criminal charges 23 had been brought against you? 24 A No way. I was never notified at all. 25 Q When did you first become aware that criminal VOLUSIA REPORTING COMPANY 159 1 charges had been brought against you? 2 A It's funny. It's not really funny. I 3 shouldn't say that. It was by accident. We was at -- I 4 filed an injunction against Volusia County on March the 5 6th of '08, okay? We didn't go to a hearing until May 6 the 8th, okay? When we was at the hearing, which 7 (indicating) attended, one of my friends that was there 8 with us, he got lost. He was on the first floor. We 9 was up, I believe it was, on the third floor. He got 10 lost, and he asked the lady that was behind the counter, 11 you know, "What floor is Mr. Prevatt's hearing on?" 12 And she goes, "Well, I don't know. What case 13 is it?" 14 And he goes, "Well, I don't know. How many 15 cases do you have?" 16 And she turned the monitor around and had ten 17 charges on me. And she said, "Well, all these have 18 been, you know, dismissed. Which one is it?" 19 And he asked for a printout of that thing and 20 offered to pay for it. 21 So it was by mistake that I found out about 22 it, if that answers your question. 23 Q That was the first time you learned of it? 24 A That was the first time I'd learned about it, 25 yes, sir. That was in May the 8th, I believe, VOLUSIA REPORTING COMPANY 160 1 approximately 1:00 in the afternoon, I believe. I was 2 never notified, never given a chance to respond, never 3 read my rights, nothing. 4 Q Did you go to see Inmate Pletcher at some 5 point? 6 A What do you mean did I go and see him? 7 Q You've heard the testimony that's been given 8 today, correct? 9 A Right. 10 Q Did you go see Inmate Pletcher to ask him for 11 a statement? 12 A No, I did not. He volunteered a statement for 13 me. 14 Q Do you know what Inmate Pletcher was 15 incarcerated for? 16 A I don't really recall. I believe -- I don't 17 really remember what it was. I believe it was a VOP for 18 something. I can't remember. 19 Q A what? 20 A A VOP means violation of probation. 21 Q Okay, okay. 22 A Which, if you get probation for six months -- 23 Q I understand. 24 A -- and you get a speeding ticket, they can 25 violate you. VOLUSIA REPORTING COMPANY 161 1 Q I understand. So it was your understanding 2 that Inmate Pletcher wanted to give a statement on your 3 behalf? 4 A He volunteered to give me a statement a couple 5 times and I told him no, I don't want the statement. 6 Forget about it. Because I was told by my shift manager 7 that, "Don't worry about it. It's just inmate 8 allegations. Don't worry about it." He kept telling me 9 that. 10 At no time did I solicit a statement from him 11 or give him paperwork for any statement or tell him to 12 write a statement for me. He volunteered to give me the 13 statement two or three different times. 14 THE COURT: This was a shift commander? 15 THE WITNESS: Lieutenant Morris. 16 THE COURT: M-O-R-R-I-S? 17 THE WITNESS: Yes, sir. 18 BY MR. GEISMAR: 19 Q Were you ever asked to sign a 45-day waiver to 20 allow the investigation to exceed 45 days? 21 A No, sir. 22 Q Was any other -- are you aware of any other 23 investigation that was done for the incident with Inmate 24 Williams? 25 A I don't understand the question. VOLUSIA REPORTING COMPANY 162 1 Q Are you aware of whether Internal Affairs took 2 any other interviews with any other people? 3 A To the best of my knowledge, they didn't 4 interview nobody, no witness -- alleged witness 5 statements were taken from the inmates, except for after 6 they interviewed me, you know. I want to clarify that. 7 Q After they interviewed you, who was it your 8 understanding that they interviewed? 9 A They interviewed Inmate, or ex-Inmate, 10 Pletcher, Anthony Pletcher, at his home in Pierson on 11 September the 5th. They interviewed Inmate Sean Jones 12 on September the 6th. 13 Q Had you met with Inmate Jones at any point 14 regarding his statement? 15 A Not before they took the statement, no. 16 Q Did you meet with Inmate Jones at any point 17 after they took his statement? 18 A Yes, sir, I did. 19 Q What was that meeting -- why did you meet with 20 him? 21 A It was brought out on -- I believe it was 22 September 6th it was brought out by Sergeant Charles 23 Martin and Lieutenant Raymond Morris, who was the shift 24 manager, they was passing out what your Officer Bill of 25 Rights are within briefing, which is where we have VOLUSIA REPORTING COMPANY 163 1 briefing like 15 minutes before we go to work. And they 2 was passing out -- Sergeant Martin, on I believe it was 3 September the 6th, made a comment that -- 4 MS. JONES: Objection, hearsay. 5 THE COURT: Do you want to respond to that? 6 MR. GEISMAR: The witness is not relating what 7 was said for the truth of the matter asserted 8 therein. He is relating the situation that he was 9 involved in. He's not saying it for the truth of 10 the matter. He's relating it to the effect it had 11 on the listener. 12 THE COURT: I understand what you're saying. 13 MR. GEISMAR: Although I'm sure the witness -- 14 you may be able to rephrase so that you're not -- 15 THE COURT: Who was this person? 16 THE WITNESS: Okay. 17 THE COURT: Tell me his rank. 18 THE WITNESS: Excuse me? 19 THE COURT: What's his rank? 20 THE WITNESS: He was a sergeant, supervisor 21 out at the jail, sir. 22 THE COURT: He was in the management of the 23 division? 24 THE WITNESS: Yes, sir. And the other was -- 25 the shift manager was Lieutenant Morris at the VOLUSIA REPORTING COMPANY 164 1 time, sir. 2 THE COURT: Who is also in management? 3 THE WITNESS: Yes, sir. 4 THE COURT: All right. I'm going to let you 5 proffer. I'm going to recede from my earlier 6 ruling on hearsay as to Lieutenant Morris. I'm 7 going to let you proffer their statements and the 8 parties can brief me as to whether or not that 9 comes under the -- all the case law on statements 10 of a party since it appears these people were in 11 management of the party, the Division of 12 Corrections. 13 So I'll let you put the statement on the 14 record as to the two of them. 15 THE WITNESS: Can I talk? 16 MR. GEISMAR: Yes, you can. 17 THE WITNESS: Okay. I didn't want to cut the 18 judge off. 19 On -- I believe it was September 6 of '07, 20 Sergeant Martin stood up at briefing and made 21 several comments about the Officer Bill of Rights. 22 He had copies, about 15 or -- I don't even know, 12 23 pages, 15 pages approximately -- he was passing out 24 to everybody. Then he said something to the 25 effect, They are subject to the Officer Bill of VOLUSIA REPORTING COMPANY 165 1 Rights. You can't interview your witnesses if 2 they're part of your defense. 3 And Lieutenant Morris, he was ahead of the 4 briefing, he goes, "Yes, that's true," to the best 5 I can recall, that you can submit to that if it's 6 part of your defense. 7 So it was my understanding that what they were 8 saying was it was okay for me to talk to my 9 witnesses, you know. I didn't know that -- 10 according to what they said, they're my 11 supervisors. So that was on September the 6th. 12 I went to see Inmate Sean Jones on September 13 the 11th to talk to him, but -- 14 BY MR. GEISMAR: 15 Q And what did that meeting -- what occurred at 16 that meeting? What areas did you talk about? What 17 information did you talk about, without telling me what 18 he said to you. 19 A I didn't -- I didn't even really get a chance 20 to talk. All I said was, "What's up?" you know, like 21 that. And when he -- Officer Bidwell and I went over 22 there to the block to let the inmate out, okay? Officer 23 Bidwell let him out. Officer Stormer stayed in the 24 officer station. Okay? I know he's testified at my 25 personnel board that he went with us. VOLUSIA REPORTING COMPANY 166 1 MS. JONES: Objection, hearsay. 2 THE COURT: Sustained. 3 A (Continued) Okay. Officer Bidwell and I went 4 to let the inmate out, and when the inmate came out I 5 just said, "What's up?" you know, like that 6 (indicating), with my hand, "What's up?" So the inmate 7 started talking and I was listening to him. I didn't 8 ask the inmate nothing, you know, other -- you know, I 9 just said, "What's up?" 10 So then Stormer's on the phone already calling 11 Sergeant Moorman and Lieutenant Gray to come down there, 12 you know, that I'm talking to the inmate, okay? 13 I wasn't even talking to the inmate. I was 14 listening to the inmate, what he was saying, and it 15 wasn't even but about 45 seconds. Because Lieutenant 16 Gray testified it was 30 seconds. 17 MS. JONES: Objection, hearsay. 18 THE COURT: Overruled. 19 A (Continued) It was approximately 45 seconds to 20 a minute that I'm sitting there listening to what the 21 inmate's saying like that. So here come Lieutenant 22 Gray. He goes, "Prevatt, come here." 23 I go, "Okay." 24 So I come over there and he said you know, 25 "You're not supposed to be talking to the inmate. Let's VOLUSIA REPORTING COMPANY 167 1 go." 2 I said, "Okay." So I left with him, and that 3 was the gist of the conversation. 4 Q Okay. Very important question. Do you mind 5 if I open your Reeses Peanut Butter Cup and have one? 6 A You can have one. 7 Q All right. Now, were there any other 8 procedural safeguards that you believe you should have 9 been afforded in this investigation? 10 A I should have been interviewed according to 11 the Officer Bill of Rights, Florida Statute 112.532. I 12 should have been interviewed on my duty hours, at 2100 13 hours like I requested. 14 MR. GEISMAR: I have nothing further at this 15 point. 16 THE COURT: Cross? 17 MS. JONES: Yes, sir, thank you. 18 CROSS-EXAMINATION 19 BY MS. JONES: 20 Q Mr. Prevatt, isn't it true that with regards 21 to this alleged racial slur, that Mr. Williams -- Inmate 22 Williams, had made a statement, a written statement, 23 that you said, "He will hang you by a rope and call the 24 clan"? 25 A That's what the inmate said but I never said VOLUSIA REPORTING COMPANY 168 1 that. 2 Q Okay. But isn't it true that you testified 3 under oath in the personnel board hearing that in fact 4 you had said to Inmate Williams, "Call the pope and grab 5 a rope"? 6 A I never testified at the personnel board 7 hearing. You got it wrong. 8 Q You're stating now today that you never said 9 in your Internal Affairs' interview, under oath, then, 10 that you said to the inmate, "Call the pope and grab a 11 rope"? 12 A You just said I testified to the Personnel 13 Board. 14 Q I'm asking you, did you in fact say to this 15 inmate, "Call the pope and grab a rope"? 16 A Something to that effect. 17 Q So you admit making a comment that he 18 obviously misunderstood or misrepresented; isn't that 19 true? 20 A I can't answer for the inmate. 21 Q Okay. Isn't it true you testified earlier 22 that the inmate's statements didn't support what 23 Mr. Williams said? Is that your testimony? 24 A To the best of my knowledge, yes. 25 Q So if I show you these ten statements that say VOLUSIA REPORTING COMPANY 169 1 the same, "You can hang from a rope and call the pope" 2 and things of that nature, are they wrong? 3 A To the best of my knowledge, I can't remember. 4 They were inconsistent. 5 Q Okay. That's your testimony? 6 A From what the inmates said and what they 7 wrote, I didn't see one of them that had what the inmate 8 claimed, no, I did not. 9 Q Okay. And if you said, "Call the pope and 10 grab a rope," which is what you've admitted saying, 11 isn't it true the inmate may have understood that to be 12 a racial slur against him or any of the inmates? 13 MR. GEISMAR: I'm going to object. Calls for 14 speculation. 15 THE COURT: Sustained. 16 MS. JONES: Okay. 17 BY MS. JONES: 18 Q Isn't it true that you were -- the initial 19 investigation had to do with making an improper racial 20 slur based on Inmate Williams, but in fact you were 21 ultimately charged with being unprofessional in the 22 statement that you admitted having made? Isn't that 23 true? 24 A No, it is not true. I never did make a racial 25 statement. VOLUSIA REPORTING COMPANY 170 1 Q No. I said the statement you admitted -- in 2 your Internal Affairs' investigation you admitted saying 3 "Call the pope and grab a rope." And isn't it true that 4 they sustained that you had been unprofessional, that 5 they sustained the use of violent, profane, provocative 6 or offensive language? Isn't that true? That's what 7 was sustained against you as to the -- 8 A I don't recall. 9 Q With regards to the insubordination charges, 10 you have admitted here that you received the notice to 11 appear for those interviews; isn't that true? 12 A Yes. 13 Q And you had a dental emergency so you couldn't 14 go to the first one; is that right? 15 A Yes. 16 Q And you said here that you told Captain Prince 17 about it. 18 A Yes, I did. 19 Q That was your -- he was not in Internal 20 Affairs. That's correct, right? 21 A No, but he was the shift manager at the time 22 whenever I went home sick with a broken half tooth. 23 Q Okay. But you didn't contact Internal Affairs 24 yourself? 25 A I was having dental surgery whenever they came VOLUSIA REPORTING COMPANY 171 1 on duty, I would assume. 2 Q Okay, okay. The question is that you didn't 3 contact them, did you? 4 A No. No, I did not. 5 Q And you didn't contact Internal Affairs after 6 that, either, did you, and say "Hey, this is why I 7 wasn't there"? 8 A He can only -- 9 Q You didn't contact -- it's a yes or no 10 question. You didn't contact them after the dental 11 emergency and say, "Hey, I know I missed my appointment. 12 I was having a dental emergency at that time." You 13 didn't call Captain Modzelewski or Dofflemeyer and tell 14 them that, did you? 15 A No. 16 Q Then when you got the second notice to appear, 17 did you say that that interview was supposed to take 18 place on the 20th of August, you thought? 19 A I believe I testified to the fact that he told 20 me to report to his office on the 20th of August, which 21 I did, and he was not there. 22 Q Okay. And did he give you a time to report? 23 A I believe it was -- I believe it was wrote at 24 8:00 in the morning, after I finished my -- completed my 25 shift. VOLUSIA REPORTING COMPANY 172 1 Q All right. Isn't it true that you received 2 a -- well, let me finish on that note with the 3 insubordination. 4 Isn't it true that you have admitted in 5 previous sworn testimony that you got the notice from 6 Captain Dofflemeyer to come meet with her after your 7 contact with Sean Jones when she wanted to ask you to 8 explain it? You heard her testify to that, correct? 9 She sent you a notice and asked you to come in so she 10 could talk to you about you contacting Sean Jones? 11 A I believe so. 12 Q Okay. And you didn't show up for that 13 interview, did you? 14 A No. 15 Q Okay. And isn't it true that when the 16 Internal Affairs' investigation was opened, you received 17 notice of Internal Affairs' investigation? They gave 18 you a notice that said, "There's been a complaint made 19 against you. We're going to look into it." And, in 20 fact, isn't it true they told you you're not to contact 21 any witnesses in the case during the pending IA? 22 A I don't remember. 23 Q Okay. You don't remember? 24 A I don't remember them saying that. 25 Q Okay. But the letter you received in fact VOLUSIA REPORTING COMPANY 173 1 told you that under Florida Statute 112.533, you are 2 precluded from contacting witnesses during the internal 3 investigation; isn't that true? 4 A I think so. 5 Q And isn't it also true that they told you at 6 that time, if you have any witnesses or information you 7 want us to look at or interview, contact us, don't 8 contact the witness? Isn't that true? 9 A I don't believe that to be true. 10 Q You don't believe that to be true. Okay. 11 But you did get notice and you did -- you were 12 told in that notice -- do you recall that the notice 13 included the Correctional Officers' Bill of Rights, a 14 listing of those? 15 A Yes. 16 Q When you contacted Inmate Sean Jones in the 17 facility, you were not on duty, were you? 18 A No. 19 Q But you were in uniform, weren't you? 20 A Yes. 21 Q And isn't it true that Inmate Jones was in a 22 different building than your duty station? 23 A Yes. 24 Q And he was a witness in your case, wasn't he? 25 A He -- VOLUSIA REPORTING COMPANY 174 1 Q You had offered him as a witness, hadn't you? 2 A I'm trying to remember. I don't remember if I 3 did or not but I seem to think I was or I did. 4 Q Okay. He and Pletcher, according to you, 5 could exonerate you of this allegation of racial slurs, 6 correct? 7 A I don't believe I said that. 8 Q Okay. You don't believe you said that. Well, 9 you said that Pletcher -- Pletcher offered to write you 10 a note; isn't that true? 11 A He volunteered to write me a letter, or note, 12 whatever you want to call it, two or three times. 13 Q And when did you get that note from 14 Mr. Pletcher? 15 A I don't remember when it was. Maybe -- 16 Q Well, this happened early July. July 10th the 17 Internal Affairs' investigation was opened. When do you 18 think you got that note from Mr. Pletcher? 19 A I don't remember. 20 Q Well, is it true you didn't give anybody in 21 Internal Affairs the note that you said would exonerate 22 you until you came in for your interview on September 23 the 4th? 24 A I was told by my shift manager, Lieutenant 25 Morris -- VOLUSIA REPORTING COMPANY 175 1 Q My question is, did you give that note, the 2 note that you had in your pocket when you showed up for 3 your Internal Affairs' interview, that was supposedly 4 written by Pletcher to exonerate you of the racial slur 5 comment, you didn't give that to IA before the 6 interview, did you? 7 A I was told by my shift manager -- 8 Q Yes or no? Did you give that to IA before you 9 walked in there for your interview? 10 A No. 11 Q And ordinarily, don't you have requirements 12 that you write reports and what they call 401's when you 13 receive stuff from inmates? Isn't it policy that you're 14 supposed to write a report stating that you received 15 something from an inmate? 16 A I don't remember if it is or not. 17 Q Regarding the criminal charges that were sent 18 to the state attorney's office, you were never charged 19 criminally, were you? 20 A Yes, I was. 21 Q You were never arrested, were you? 22 A I might not have been arrested, per se, but he 23 wrote out a 798 affidavit to charge me one week after I 24 reported to FDLE -- 25 Q He sent the letter, he sent those charges -- VOLUSIA REPORTING COMPANY 176 1 you heard him testify he sent those charges to the state 2 attorney's office; isn't that correct? Isn't that true? 3 You heard him testify, right? 4 A It was my understanding that he put charges on 5 me. That's my understanding of it. 6 Q Okay. But you were not by charged by the 7 state attorney's office. There was no information filed 8 against you, was there? 9 A There was a no information filed. 10 Q Okay. No information. No charges were file; 11 isn't that true? 12 A This went on -- 13 Q Were you arrested? 14 A No. 15 Q Okay. Were you questioned by a law 16 enforcement officer regarding the charges? Not 17 Mr. Modzelewski but were you questioned by the state 18 attorney's office investigators or anybody in the state 19 attorney's office regarding the charges that were sent 20 to their office? 21 A No. 22 Q So there would be no need to give you Miranda 23 if you weren't being questioned; isn't that true? 24 MR. GEISMAR: I'm going to object. 25 MS. JONES: Well, he mentioned not getting VOLUSIA REPORTING COMPANY 177 1 Miranda. If he wasn't questioned, I'm just trying 2 to see if he understands the -- 3 MR. GEISMAR: You can answer it. 4 THE COURT: You can answer. 5 THE WITNESS: Answer, Your Honor? 6 BY MS. JONES: 7 Q You weren't questioned, so there was no need 8 to give you Miranda by the state attorney's office? 9 A You're wrong. 10 Q You were questioned by the state attorney? 11 A Let me clarify. He said I could clarify. 12 Q I'm asking a yes or no question. 13 THE COURT: Explain your answer. 14 A Thank you, sir. 15 On 9/4/07, when I was interviewed, they had me 16 sign a couple forms. On your Garrity rights it says if 17 you -- basically what it says, if you refuse to answer 18 these questions, they can hold you up for 19 insubordination. What it also says, if you do in fact 20 answer the questions, you will not have no criminal 21 charges put against you, something to that effect. 22 That's under Garrity. 23 Okay, under Miranda you have the right to 24 remain silent, under your Fifth Amendment right of the 25 Constitution. VOLUSIA REPORTING COMPANY 178 1 Okay. That -- when I signed that form under 2 Garrity on September 4th, it was my understanding that I 3 wouldn't be charged criminally or even no criminal 4 complaints. That was my understanding under Garrity. 5 And that's how Garrity works, to the best of my 6 knowledge. If you do in fact answer the questions, you 7 will not be criminally charged throughout this process. 8 Q The question that I asked had to do with 9 whether you had he been interviewed or questioned by the 10 state attorney's office investigators. 11 A No. 12 Q Okay. So that you were not given Miranda 13 because you were not interviewed by the state attorney's 14 office. 15 A To answer your question -- 16 Q I'll withdraw the question. That's fine. 17 I'll withdraw the question. 18 Your personnel board hearing, at that hearing 19 you were allowed to present witnesses in your behalf, 20 were you not? 21 A Yes. 22 Q And isn't it true that the three people that 23 you keep referring to that IA did not interview, 24 Mr. Bidwell, Mr. Cook and Mr. Morris, all three of those 25 testified at your personnel board hearing, didn't they? VOLUSIA REPORTING COMPANY 179 1 A Yes. 2 Q And isn't it true that at the conclusion of 3 the personnel board hearing, the Personnel Board 4 determined that you had in fact violated the things that 5 you were charged with by Director Clifford? 6 A I -- my wife, we tried to get an attorney to 7 represent us. 8 Q The question is -- the question is, isn't it 9 true, the Personnel Board found that you had violated 10 the charges that were placed against you by 11 Ms. Clifford? 12 THE WITNESS: Can I clarify that, Your Honor? 13 THE COURT: Answer the question, then you can 14 explain your answer. 15 A Okay. Read the question again, please. 16 Q The question is, isn't it true that at the 17 conclusion of your personnel board hearing, the 18 Personnel Board found that the evidence that was 19 presented against you at that hearing sustained the 20 charges against you? 21 A They sustained charges but it was all one 22 sided because I couldn't testify because I thought he 23 was trying to put more charges on me. 24 Q Well, Mr. Prevatt, now, isn't it true that at 25 the beginning of that personnel board hearing you VOLUSIA REPORTING COMPANY 180 1 presented a letter from the state attorney's office, or 2 from Mr. Tanner, that said no charges have been filed 3 against you? So you knew at that point there weren't 4 any charges against you; isn't that true? 5 A You're trying to twist the facts around. 6 Q I'm asking you a question. 7 A Yes. The answer to your question is yes, but 8 I said -- I previously testified one minute ago that I 9 was scared to death that you was trying to manipulate 10 the situation to put more charges on me yourself. 11 Q I don't have any authority to put charges 12 against you. 13 A No, but you have a lot of influence with the 14 sheriff's department. You're even married to one of 15 'em. 16 Q Mr. Prevatt, you chose not to testify at your 17 own personnel board hearing. 18 A I was scared to death of you people. 19 Q You didn't testify, did you? 20 A No, I did not, because I was scared to death 21 of you people. 22 MS. JONES: Excuse me, Judge. There's people 23 talking over here and distracting. I'm sorry. 24 THE COURT: No one else in the room but the 25 witness and the attorney get to speak unless there VOLUSIA REPORTING COMPANY 181 1 is an emergency. I don't want the witness prompted 2 by any comments or gestures. 3 MS. JONES: Thank you. 4 BY MS. JONES: 5 Q Mr. Prevatt, when you went into Director 6 Clifford's office -- 7 MS. JONES: I'd like to -- may I approach the 8 witness, Judge? 9 THE COURT: Yes, ma'am. 10 Q -- were you given this Notice of Intent to 11 Dismiss? 12 MS. JONES: I would like to admit that as 13 Respondent's 1. 14 THE COURT: Respondent 1 for identification. 15 A I think so, yeah. 16 Q Okay. So that you recognize that document? 17 A I believe so. 18 Q All right. And isn't it true that this 19 document sets forth for you all of the facts that have 20 been testified to and about the alleged racial slur, the 21 actual comment you made, the fact that you didn't show 22 up? It includes all the charges that she was making 23 against you. And isn't it true that at the end of this 24 letter, it says that you have three days after receipt 25 of the letter to respond to the charges, Page 4? VOLUSIA REPORTING COMPANY 182 1 "You may respond either orally or in writing 2 within three days of the receipt of the letter." Isn't 3 that true? 4 A Yes, but that's not the usual situation 5 with -- to my knowledge, with everybody else. 6 Q Okay. Well, she cites to a Volusia County 7 merit rule and regulation that requires that she give 8 you time to respond to the charges against you. So, in 9 fact, you did have an opportunity, did you want to take 10 it, to respond to the charges of insubordination, 11 tampering with a witness -- 12 A And I did. 13 Q -- perjury? Okay, so you did. Because we've 14 heard a lot of testimony today about you not being told 15 you were charged with insubordination and not having a 16 chance to respond. But, in fact, you did have a chance 17 to respond, didn't you? 18 MR. GEISMAR: I'm going to object. It's 19 misconstruing the witness's testimony and it's 20 argumentative. It's taking the testimony out of 21 context. 22 THE COURT: Do you want to respond? 23 MS. JONES: Yes, Judge. We've heard from a 24 number of witnesses, different variations from 25 Mr. Geismar that he was never told he was being VOLUSIA REPORTING COMPANY 183 1 charged with insubordination and never given an 2 opportunity to respond. In fact, they're trying to 3 submit this document of the rape case to show -- 4 I'm sorry, of the black female officer that was 5 charged with insubordination to show she had a 6 right to a rebuttal. 7 He had a right to make a rebuttal to Director 8 Clifford to all of the charges, and that's why I'm 9 presenting this document. 10 THE COURT: Objection overruled. 11 BY MS. JONES: 12 Q So the question was, you in fact did have an 13 opportunity to respond to the insubordination charges, 14 to the perjury charges -- 15 A After I was fired, yeah. 16 Q You got this document and you were not fired 17 until you received the notice of dismissal -- 18 MS. JONES: Judge, may I approach? 19 THE COURT: All right. 20 Q -- dated November the 12th. That's your 21 letter of dismissal, isn't it? Do you recognize that 22 letter of dismissal? 23 A Okay. That's not what -- 24 Q Do you recognize the letter of dismissal? 25 That's my question. VOLUSIA REPORTING COMPANY 184 1 A Yes, I recognize this letter. 2 Q And you received this letter. There is no 3 doubt you received the letter, is there? 4 A No. 5 Can I talk now? 6 Q I'm asking you a question. Did you receive 7 this letter? 8 A To my knowledge, yes, I did. 9 Q Okay. You did in fact -- this letter also 10 gives you ten days to request an appeal, and you did in 11 fact request an appeal before the Personnel Board, 12 didn't you? Didn't you request an appeal before the 13 Personnel Board? 14 A She -- 15 THE WITNESS: Can I speak, Your Honor? 16 THE COURT: I want you to answer the question. 17 Then you can explain your answer if you want to. 18 THE WITNESS: Okay, sir. Thank you. 19 A I did request an appeal to the Personnel 20 Board, yes, I did. I was walked out the door on the 5th 21 of November. You guys put down here on the 12th of 22 November. That's not really true. 23 She testified at my personnel board hearing 24 that that day she terminated me and it's in the record 25 right here. I can show it to you. VOLUSIA REPORTING COMPANY 185 1 Q I was there. I know what she testified to. 2 A And I can prove it to you right now. 3 MS. JONES: Judge, I'd like to -- 4 A (Continued) Her first comment was, "I 5 terminated him." 6 Q Have you seen this document before? 7 A To the best of my knowledge, yes. 8 Q Okay. And isn't that the results of your 9 personnel board hearing, the Personnel Board's 10 determination and decision that was sent to the county 11 manager for review and then signed off on by the county 12 manager? You have seen that? 13 A To the best of my knowledge, yes. 14 Q Have you seen this document, the result of 15 your appeal? Have you seen this document? It's the 16 order denying your appeal of your personnel board. 17 A To the best of my knowledge, yes. 18 Q Okay. So you have seen all these documents. 19 You acknowledge that you had an administrative 20 review up through and including circuit court, don't 21 you, of your termination? 22 A Yes. 23 Q Okay. Okay. You also have acknowledged here 24 before this judge that you were insubordinate in that 25 you didn't show up for those interviews, for three of VOLUSIA REPORTING COMPANY 186 1 them? 2 MR. GEISMAR: Object. 3 MS. JONES: I'll rephrase the question, Judge. 4 THE COURT: Sustained. 5 BY MS. JONES: 6 Q You've admitted that you did not show up for 7 the interviews that you received notice of and were 8 scheduled for. 9 A I had a dental emergency. 10 Q Okay, but three times, right? You have three 11 different -- you didn't have three dental emergencies 12 but you had three different interviews you didn't show 13 up for and you didn't call. You've testified to that in 14 the other proceedings, so ... 15 A To the best I recollect, yeah. 16 Q Okay. And you also admit saying -- admitted 17 saying, "Grab a rope and call the pope." Isn't that 18 true? 19 A To the best of my knowledge, yes. 20 Q And isn't it true that whether that was given 21 in a racial context or not, that that would be 22 considered an unprofessional comment for a corrections 23 officer to make to an inmate? 24 A It's not up to me to decide that. 25 Q Well, you were a correctional officer for 18 VOLUSIA REPORTING COMPANY 187 1 and a half years. Certainly you know a little bit about 2 the professionalism of the profession, don't you? Do 3 you think it was the best thing you should have said at 4 the time? 5 A The statement was taken out of context and 6 twisted around. 7 Q Okay. But you said it? 8 A It had no racial overtones at all to it. 9 Q Well, you didn't say it with racial overtones. 10 You can't really say how anybody else heard it, can you, 11 or what it meant to other people that heard it? You 12 can't testify to that, can you? 13 A No, I cannot. 14 Q Okay. And you did go to contact Inmate Sean 15 Jones, didn't you, while he was in custody? 16 A I went to see him. 17 Q Okay. You had him removed from his cell by 18 another officer; isn't that true? 19 A Yes. 20 Q And you took him down a hallway away from 21 where he was housed, by some classrooms that were 22 unoccupied; isn't that true? 23 A We stayed right on the sidewalk. 24 Q Okay. But you walked down the hall or the 25 aisleway, away from the other inmates, correct, and away VOLUSIA REPORTING COMPANY 188 1 from the officer station where you were saying Officer 2 Stormer was. You walked away from there, didn't you? 3 A You had to walk away from the officer station 4 to get to the block. 5 Q Okay. And then you walked beyond the block, 6 didn't you, after you had Inmate Jones in your custody? 7 A Yes. 8 Q And you were in uniform? 9 A Yes. 10 Q Okay. And you were accompanied by another 11 officer in uniform? 12 A I was escorted out of the building by 13 Lieutenant Gray. 14 Q No, I'm talking about Officer Bidwell that you 15 said went with you. 16 A Yes. 17 Q Did he go with you and stand with you when you 18 were talking to Sean Jones? 19 A No, he did not. He stood and opened the lock 20 box and took the inmate out and then he was standing 21 back away from us, to the best of my knowledge. 22 Q Okay. And you testified earlier, I think, 23 that you were -- I think you had the dental emergency. 24 You were out of work for part of the time because of 25 that? VOLUSIA REPORTING COMPANY 189 1 A Right. 2 Q And you also went away on vacation during this 3 Internal Affairs' investigation? 4 A Yes, ma'am. 5 Q Okay. Are you aware that the law provides 6 that the 45 days for an Internal Affairs' investigation 7 to be completed is tolled if the party is unavailable, 8 as you were? Weren't you out of state for that? 9 A I was out of state, yes. 10 Q You were unavailable for them to interview 11 you, weren't you? 12 A Yes. 13 Q Okay. 14 MS. JONES: That's all I have at this time, 15 Judge. 16 THE COURT: Redirect? 17 REDIRECT EXAMINATION 18 BY MR. GEISMAR: 19 Q What type of rope were you referring to? 20 A I was referring to Rosary beads that they use 21 to pray for, like with the pope. 22 Q And what did you mean by pray to the pope? 23 A The Rosary beads that they do in their hands, 24 the Catholics do, to pray with. 25 Q What were you telling him to pray about? VOLUSIA REPORTING COMPANY 190 1 A It was just a gesture or comment, you know, 2 maybe not in the best interest of, you know, the 3 situation but -- 4 Q Did it have to do with the shower? 5 MS. JONES: Objection, leading. 6 A It had to do with the shower, yes. 7 Q Was a criminal case opened against you? 8 A I received a document from Director 9 Clifford -- I filed hostile work environment on 10 September the 15th with what happened with -- over there 11 at the facility against Lieutenant Gray, Captain 12 McClellan, I believe it was Captain Prince and a couple 13 more supervisors, I believe. I don't recall exactly. 14 I filed hostile work environment grievance 15 step one to Captain Prince, even though it was about 16 him. That's step one. You have to go to the captain 17 and then the warden and then the director and then the 18 county manager. There's four steps to the grievance 19 procedure. 20 Okay. She took the grievance and answered it 21 herself, she being the Director Clifford, and said that, 22 "You don't have no grievance. You don't have no hostile 23 work environment complaint. What you did was illegal, 24 and you violated Florida Statute" -- I don't remember 25 what it was. VOLUSIA REPORTING COMPANY 191 1 At that point she put -- the way I took it to 2 be -- a criminal complaint against me. That's the way I 3 took it. 4 Q When you went to the personnel board hearing, 5 were you already put out of work at that point? 6 A Yes. 7 Q How long had you been out of work? 8 A I had been fired -- wrongfully terminated, I 9 should say, since 11/5/07, but they put down here -- let 10 me clarify it. I believe Ms. Jones just gave me the 11 memo. They put down November 12th of '07. 12 Q How long were you out of work before the 13 personnel board hearing was held? 14 A It was -- the personnel board was held on June 15 the 19th, 2008. So approximately eight months, almost. 16 Q So you weren't given a chance to respond at 17 any point before that to any of these allegations? 18 A I don't understand the question. 19 Q Were you given a chance to respond -- on cross 20 exam you were asked to confirm that you in fact had a 21 chance to respond to these allegations that were made 22 against you at the personnel board hearing. And I'm 23 asking you, prior to that personnel board hearing, were 24 you given a chance to respond to any of these 25 allegations at any other time before that? VOLUSIA REPORTING COMPANY 192 1 A In reference to what allegations? 2 Q The allegations regarding the incident with 3 Williams and regarding the insubordination charges. 4 A I don't really understand the question. I'm 5 trying to answer it but I don't really understand it. 6 Q After you were charged with making a racial 7 slur, were you given the opportunity to present 8 witnesses before you were terminated, before your job 9 was terminated? 10 A Not that I can recall. 11 Q Was the first chance that the County permitted 12 you to present testimony at that personnel board 13 hearing? 14 A I -- during the interview on 9/4/07 with 15 Captain Dofflemeyer, I told her, you know -- I know I 16 specifically told her about Officer Cook. I don't 17 recall about the other witnesses. But if you're going 18 to do an investigation, just like she did with the 19 female with the alleged rape investigation, you have to 20 interview all witnesses that are pertinent, exculpatory 21 witnesses in regard to the investigation. You can't 22 just pick and choose. 23 Like how they did, they chose to interview 24 Officer Stormer but Officer Bidwell was his partner on 25 the same unit when the incident, alleged incident, VOLUSIA REPORTING COMPANY 193 1 occurred. They didn't interview Officer Bidwell. You 2 can't pick and choose the investigation. 3 Q After the allegation against you had been 4 sustained and you were out of work, after you appealed, 5 you had a chance to present testimony after the -- after 6 you were terminated. 7 A At the personnel board, you mean? 8 Q Right. 9 A Right. 10 Q But that had nothing to do with the initial 11 investigation, did it? 12 A No, sir, no, not to the best of my knowledge. 13 Q Were you able to cure any what you perceived 14 to be defects in the investigation at that personnel 15 board hearing? 16 A I was able to observe and write down several 17 disparate treatment statements that was taken and done 18 in my case. 19 Q You had already been fired? 20 A I had been fired on 11/5/07, sir. 21 Q Okay. 22 A Wrongfully terminated, I should say. 23 Q And you said Officer Bidwell was with you when 24 you went to see Inmate Jones? 25 A Yes, sir. VOLUSIA REPORTING COMPANY 194 1 Q And yet you weren't presented -- prior to your 2 termination you weren't presented with any statement 3 from Officer Bidwell? 4 A No, sir. He was one of my exculpatory 5 witnesses that should have been interviewed but never 6 was. But anybody that had a statement against me, they 7 interviewed 'em. 8 In other words, what I'd like to clarify, if I 9 could, Your Honor, Officer Stormer committed perjury 10 against me. He never come down to the officer station. 11 He got on the phone and called Sergeant Moorman, but he 12 testified at my personnel board that he was on the radio 13 when he talked to Moorman. But that Moorman testified 14 at my personnel board that he handed the phone over to 15 Lieutenant Gray, so how can he be on the telephone and 16 radio at the same time talking to sergeant -- the 17 sergeant and then hand it to the lieutenant? He lied. 18 Q Was a statement ever taken from you regarding 19 the dental emergency that you testified to? 20 A I believe it was. I think I just told it 21 verbally. I don't know if a statement was taken or not. 22 I don't remember. I can't remember. 23 Q Were you ever questioned about the two other 24 interview appointments that were scheduled for you that 25 you did not attend? VOLUSIA REPORTING COMPANY 195 1 A I don't understand the question. 2 Q Were you ever questioned about the missed 3 interview appointments? Did Internal Affairs ever 4 question you about why you had missed those 5 appointments? 6 A Not that I can recall. Did they have me write 7 something down as to why I missed them? 8 Q Did they communicate with you in any manner as 9 to inquire as to why you missed them? 10 A I don't recall. I can't remember. 11 MR. GEISMAR: Okay. I don't have anything 12 further. 13 THE COURT: You may step down. 14 THE WITNESS: Thank you. 15 (Witness stands down.) 16 MR. GEISMAR: I just have one further witness; 17 Officer Morris. 18 (Brief pause.) 19 MR. GEISMAR: Judge, can the Petitioner be 20 excused for just a few minutes to use the men's 21 room? 22 THE COURT: Sure. 23 MS. JONES: Want to take five or no? 24 THE COURT: Take five. 25 (Short recess.) VOLUSIA REPORTING COMPANY 196 1 THE COURT: Hearing will come to order. 2 Officer Morris here? 3 MR. GEISMAR: The Petitioner's decided that 4 we're going to rest, Your Honor. 5 THE COURT: Oh, okay. 6 You can go ahead, Ms. Jones. 7 MS. JONES: Judge, I'm not sure what it's 8 called in these proceedings, but I'd like to move 9 for what we would call a directed verdict or a 10 final summary order at this point based on the fact 11 that I don't believe the Petitioner has proven a 12 case of unlawful discrimination, either based on 13 retaliation or disparate treatment. 14 I don't think there has been sufficient facts 15 presented here today to sustain a cause of action 16 for this by preponderance of the evidence, and so 17 we would ask that you dismiss the case at this 18 point. 19 THE COURT: I'll take that under advisement, 20 and you go ahead and put your case on because we're 21 here making a record. And in the event -- since 22 this is a recommended order case, the agency enters 23 a final order. Should they remand it for some 24 reason, we already have the record made. 25 MS. JONES: Okay. VOLUSIA REPORTING COMPANY 197 1 THE COURT: So it's more efficient to do it 2 that way. 3 MS. JONES: Absolutely. 4 THE COURT: And I'll treat the subject of your 5 motion in the recommended order, and you can treat 6 it in your proposed recommended order. 7 MS. JONES: Okay. Thank you, Judge. 8 I would call Director Marilyn Ford, please. 9 (Whereupon, DIRECTOR MARILYN FORD was duly 10 sworn to tell the truth and testified as follows:) 11 DIRECT EXAMINATION 12 BY MS. JONES: 13 Q Director Ford, could you state your name for 14 the record, please. 15 A Marilyn Chantler Ford. 16 Q And how are you employed? 17 A I'm employed by Volusia County Division of 18 Corrections. 19 Q Okay. What is your position? 20 A I'm currently director. 21 Q You are the Director of the Department of 22 Corrections? 23 A Yes. 24 Q So you run the Volusia County Jail? 25 A Yes. VOLUSIA REPORTING COMPANY 198 1 Q And does that include the branch jail and the 2 facility? 3 A Yes. 4 Q Just for clarification, when were you 5 appointed to that position that you hold now? 6 A Approximately a year ago, on February 29th, 7 2008. 8 Q And prior to that, what was your -- where were 9 you employed and what was your assignment? 10 A I was assistant director and I was working at 11 the branch jail. 12 Q How long have you worked in the Volusia County 13 Department of Corrections all together? 14 A Just over 20 years. 15 Q So you've been here for a while? 16 A Yes. 17 Q Are you familiar with the general facts 18 regarding what you heard Mr. Prevatt talk about, a 19 hostile work environment claim that he filed or 20 paperwork he filed? Are you generally familiar with 21 that? 22 A I just refreshed my memory. 23 Q Okay. And I don't need a lot of details, but 24 do you know what the nature of that complaint was? 25 A Essentially he was complaining that his escort VOLUSIA REPORTING COMPANY 199 1 out of the building when he showed up when he was not on 2 duty was inappropriate and that created a hostile 3 environment. And when some other supervisors had 4 instructed him not to go over to the correctional 5 facility, that that also was hostile. 6 Q Okay. And let me see if I can get a little 7 detail. The incident where he contacted -- you're 8 talking about the incident where he contacted Sean 9 Jones, the inmate in custody? 10 A That is correct. 11 Q And that happened at which facility? 12 A That happened at the correctional facility, 13 although he was assigned to work at the branch jail. 14 Q Okay. So the directive that was given keeping 15 him out of the correctional facility didn't impact him 16 going to work at the branch jail, did it? 17 A Not at all. 18 Q And that was the nature of his hostile work 19 environment claim, is your understanding? 20 A That's my understanding, yes. 21 Q Okay, okay. Since you've been the director, 22 have you taken any disciplinary action against any 23 employees? Specifically, have you terminated anybody? 24 A Yes. 25 Q And didn't you terminate Mr. Zemba, that we VOLUSIA REPORTING COMPANY 200 1 heard about here today earlier? 2 A Yes. 3 Q What was Mr. Zemba terminated for, generally? 4 And I know you don't have the paperwork with you so I'm 5 not asking you to remember all the specifics, but 6 generally. 7 A Do you want the actual violations or the true 8 behavior? 9 Q Well, you can tell the true behavior first and 10 then if you -- to the extent you remember what the exact 11 violations were, that's fine. 12 A My recollection is he was at a party. He had 13 displayed his badge. He knew there was marijuana use. 14 He did not leave. He ended up offering to drive a woman 15 home. 16 He later describes that she was so impaired, 17 she could not provide him directions to get to her house 18 so he ended up leaving her by the side of Interstate 4. 19 She was a quarter mile from a gas station. He never 20 explained why he would leave an impaired person, lady, 21 by the middle of the road at, you know, the wee hours of 22 the morning. 23 He subsequently had a verbal dispute by the 24 side of the road with another male passenger such that 25 DeLand Police Department stopped and asked them about VOLUSIA REPORTING COMPANY 201 1 it. Then when he got home -- and this report was filed 2 because the female ended up alleging that he had a 3 weapon in his glove box that he had pulled out and 4 actually threatened her with to get her to exit the 5 vehicle. 6 That complaint went to the Volusia County 7 Sheriff's Department. They contacted us. That led to 8 an Internal Affairs' investigation being opened. 9 Q That's how you became aware of this whole 10 thing? 11 A Yes. 12 Q Okay. Okay. 13 A And during the course of the sheriff's 14 investigation, he lied to the law enforcement officer. 15 So at the conclusion of the VCSO investigation and then 16 our Internal Affairs, I thought there was sufficient 17 charges of conduct unbecoming, as well as false 18 statement during a criminal investigation. 19 Q Okay. 20 A So I terminated him. 21 Q So you terminated him; you took that action? 22 A Right. 23 Q And is Mr. Zemba white? 24 A Yes. 25 Q And also we heard a little bit about -- I VOLUSIA REPORTING COMPANY 202 1 can't remember the other. Coffin, was that the other 2 officer's name? 3 A Yes. 4 Q And he no longer works for you. Do you know 5 why he left? 6 A I think he -- 7 Q He wasn't terminated, was he? 8 A No, not that I recollect. 9 Q There was quite a bit of testimony about the 10 report on the alleged rape at the jail and the format of 11 that IA report, final report, as compared to the format 12 of Mr. Prevatt's IA. Can you explain to the judge, 13 since it was your decision, about that change in format? 14 A Okay. There had been several IA's since I've 15 been director, and my recollection is they used to go in 16 chronological form, but it became very difficult for me 17 to follow and figure out the person -- you know, who was 18 the subject officer, who were the witnesses, what was 19 the conclusion. And particularly also if there were 20 officer statements or civilian statements. 21 So it seemed to make more sense to me to 22 organize it as to "here are the witness statements," 23 "here's what the subject officer said" and do it in that 24 format. So that's why I asked for the change. 25 And, also, I thought there was a confusing way VOLUSIA REPORTING COMPANY 203 1 that they would report some of the charges and then 2 they'd come up with what they found. And I found it 3 very confusing so I asked them to redesign it. 4 Q Okay. So that was your decision as the new 5 director to have the -- 6 A Yes. 7 Q -- IA people change the format of their final 8 reports? 9 A Right. 10 Q That wasn't based on any changes in law as to 11 bill of rights or anything of that nature, was it? 12 A No. 13 Q Just how it was easier to follow? 14 A Right. It was for my ease of understanding. 15 Q Okay. And in any Internal Affairs' 16 investigation, as the director who is going to make a 17 decision on the discipline that's going to be taken, do 18 you have the opportunity or right to look at the entire 19 file and read the statements that they've taken and, in 20 fact, ask them to do other things if you want them to, 21 things like that? 22 A Yes, and I do that. 23 Q Okay. So before you make a decision you have 24 the whole picture? 25 A (Witness nods head.) VOLUSIA REPORTING COMPANY 204 1 Q Okay. There was some testimony, a little bit 2 of testimony, about some complaint to FDLE by 3 Mr. Prevatt. Do you remember, approximately, when you 4 received a letter from FDLE that told you that 5 Mr. Prevatt had made some complaints to the FDLE? 6 A We received that in mid March. 7 Q Of what year? 8 A 2008. It a was couple weeks after I was 9 appointed was the first that we learned of it. 10 Q Okay. And Mr. Prevatt had been terminated in 11 November of 2007, correct? 12 A Yes. 13 Q So nothing was brought to the attention of 14 Department of Corrections, at least in your knowledge, 15 until -- 16 A There was nothing I received, and there were 17 nothing in any of the files that I inherited. 18 Q Okay. Okay. 19 MS. JONES: I think that's all I have at this 20 time, Judge. 21 THE COURT: Cross? 22 MR. GEISMAR: No cross, Your Honor. 23 THE COURT: You may step down, ma'am. Thank 24 you. 25 (Witness stands down.) VOLUSIA REPORTING COMPANY 205 1 MS. JONES: Judge, I'd rest at this time. 2 THE COURT: All right. Any rebuttal? 3 MR. GEISMAR: Judge, I have a brief closing 4 statement. I'll make it very brief, Your Honor. 5 THE COURT: All right. You're not going to 6 put on any rebuttal witnesses, are you? 7 MR. GEISMAR: Oh, I'm sorry. No, no rebuttal 8 witnesses. 9 THE COURT: Okay. You can have a closing 10 statement if you'd like. Also, you'll have a 11 chance to do a proposed recommended order which 12 we'll address in a minute. 13 Go ahead with your closing statement. 14 MR. GEISMAR: Your Honor, in this case I think 15 it is a very clear case. It's very clear that the 16 Petitioner was not given the due process that was 17 required. We presented to the Court three 18 different incidents, three different incidents, one 19 a rape by -- an alleged rape by three officers, 20 three black officers and one Puerto Rican officer, 21 where an investigation, a very complete 22 investigation, was done and documented. A complete 23 investigation was documented very thoroughly. 24 Petitioner has presented a charge of 25 insubordination against a black female who was very VOLUSIA REPORTING COMPANY 206 1 clearly given a chance to respond to the charge of 2 insubordination, and also in the paperwork that is 3 a multipage paperwork for the charge of 4 insubordination. 5 Officer Brown falsified records. He was 6 suspended and then promoted. There was no 7 investigation at all. 8 In this case the Officers' Bill of Rights was 9 clearly violated. Officer Prevatt was not given 10 the investigation that was required. And although 11 the Respondent claims that the Petitioner is 12 putting up a smoke screen, I would submit to Your 13 Honor that it is the Respondent who is attempting 14 to put up a smoke screen in this case and that the 15 argument of a change in format of the report does 16 not excuse or explain a lack of substance in the 17 report. 18 It's -- the argument that the format of the 19 report has changed does not explain away the fact 20 or justify the fact as to why there is no 21 explanation as to why witnesses were not 22 interviewed, no witness list, and it's not just a 23 question of format. This is substance that's 24 missing. 25 On the Respondent's case in chief, Respondent VOLUSIA REPORTING COMPANY 207 1 made a big issue, major issue, out of the fact that 2 the Petitioner did have an opportunity to review 3 the decision of Volusia County. And I submit to 4 you that this opportunity to review the decision 5 was made after the fact. I was trying to establish 6 that with Mr. Prevatt when I questioned him at the 7 end of his testimony. 8 But the opportunity to review a decision that 9 has already been made is vastly different from 10 being provided with the opportunity to confront 11 your accusers and being provided with the rights in 12 the Officers' Bill of Rights up front. 13 In this case we've clearly -- the Petitioner 14 has clearly shown that he has been treated 15 differently than at least three different instances 16 that we have given examples of this afternoon. 17 The rape issue and the insubordination issue 18 of -- the documents that have been submitted to the 19 Court, show that the paperwork that was submitted 20 in connection with both of those issues shows that 21 there is a -- there is a procedure within the 22 department to document these things, to document 23 the way the investigation proceeds and to make sure 24 that a comprehensive investigation is done and that 25 due process is served. And there is a good reason VOLUSIA REPORTING COMPANY 208 1 for that. It's because it's mandated by the 2 Officers' Bill of Rights. 3 For the Respondent to say that the format has 4 changed but the -- they just changed the way they 5 do things, that does not explain the fact that all 6 we have is a couple of memos with charges that are 7 made and sustained by Captain Modzelewski and 8 Dofflemeyer sustaining their own charges of 9 insubordination. No response, no opportunity for 10 the Petitioner to respond in any way. 11 And it just doesn't -- and this is not a 12 format change. I submit to you, this is not just a 13 format change. And I would submit that that is the 14 smoke screen that is being -- is being done today. 15 We're asking -- we're asking for reinstatement 16 with back pay and benefits for Officer Prevatt, and 17 we're also asking for attorney fees under the 18 applicable law, which we have cited in our papers. 19 And the Petitioner will rest at that, Your 20 Honor. Thank you. 21 THE COURT: All right. Does the Respondent 22 want an opening statement now or in your proposed 23 recommended order? 24 MS. JONES: Did you say opening statement? 25 THE COURT: I meant closing. I'm sorry. VOLUSIA REPORTING COMPANY 209 1 MS. JONES: I was going to say, we have to 2 start over? 3 THE COURT: No, you don't have to. 4 MS. JONES: Just very briefly, Judge. 5 At the beginning of this hearing we talked 6 about what was in the amended petition and what the 7 Petitioner was alleging, and the Court recognized 8 that this was a disparate treatment claim and a 9 retaliation claim. And I submit to you, Judge, 10 that he has failed to prove either one of those. 11 For the disparate treatment claim they 12 provided some documentation of a black female, 13 albeit through hearsay in my opinion, who had been 14 suspended for insubordination. There was no 15 evidence that she had done any of the other things 16 that the Petitioner was charged and found guilty of 17 doing that resulted in his termination, so we 18 submit that that is not a comparable comparison to 19 make for a disparate treatment claim. 20 In addition, the only other African American 21 was Sergeant Brown who testified here today -- he 22 did not testify that he falsified any document. He 23 testified that he was suspended for two days for 24 not making the proper checks of the inmates that 25 they're required to make every hour. VOLUSIA REPORTING COMPANY 210 1 So, again, he was not charged with anything 2 even close to what the Petitioner was charged with, 3 and therefore he was not terminated. And, in fact, 4 we believe that's not a proper disparate treatment 5 comparison. 6 In terms of the retaliation claim, the 7 Petitioner is required to prove by preponderance of 8 the evidence that he was engaged in some type of 9 protected activities, that there was an adverse 10 employment action taken against him, and that there 11 was some connection between the two. And I submit 12 that there has been no evidence here today 13 whatsoever that he was involved in any type of 14 protected activity at the time he was fired. 15 He admitted, in fact, to you all of the 16 violations that he was charged with. He admitted 17 making a comment that could be considered 18 unprofessional, that he didn't show up for these 19 interviews. He wasn't asked about certain things 20 because he kept not showing up for the interviews. 21 So he didn't help himself in terms of the 22 investigation. 23 He has complained a lot and it seems to be 24 about how the investigation was conducted and which 25 witnesses weren't interviewed and which were, and I VOLUSIA REPORTING COMPANY 211 1 submit to you that that's the basis of this 2 complaint, that he didn't like how the Internal 3 Affairs' investigation was handled. 4 However, when it comes to due process, the 5 Volusia County merit rules and regulations, which 6 are a county ordinance, provide for due process for 7 him, which he exercised. And we submitted 8 documentation. He admitted that he exercised his 9 due process rights all the way up to a petition for 10 certiorari to the circuit court. 11 So not only were the witnesses that he felt 12 should have been interviewed in the internal 13 investigation testified at the personnel board 14 hearing, and he had the opportunity to confront 15 them and cross-examine them at that point. That 16 was the opportunity for him to answer or to 17 question the charges that were against him. 18 Our merit rules provide that when someone is 19 disciplined, they're given a notice of the intent 20 to discipline. They're not supposed to be told, 21 "This is what we're going to charge you with. What 22 do you have to say about this?" other than as he 23 was in the initial investigation. 24 And, of course, his actions took the 25 investigation from simply allegations of racial VOLUSIA REPORTING COMPANY 212 1 slurs by the inmates to all the other incidents 2 that he committed that resulted in his termination; 3 the insubordination, the tampering with Sean Jones, 4 and the falsifying -- or testifying -- perjury 5 under oath. 6 The bill of rights issue, Judge, that's a 7 statutory thing that's provided for the correction 8 officers and law enforcement officers. And there 9 is a procedure in there if you feel your bill of 10 rights are being violated, to go to circuit court. 11 And there was testimony to this today that he 12 in fact did go to circuit court. And my point in 13 telling you that is that's the procedure if you 14 feel your bill of rights have been violated, to go 15 to circuit court at the time it's happening, not an 16 administrative hearing such as this. 17 This is an administrative hearing as to an 18 unlawful discrimination claim, and we believe there 19 has not been sufficient evidence here today to 20 support such a claim. And we'll ask you to dismiss 21 the petition, Judge. Thank you. 22 THE COURT: Thank you. 23 Respondent, I believe, has offered four 24 exhibits; is that right? 25 MS. JONES: I believe so, yes, Judge. VOLUSIA REPORTING COMPANY 213 1 THE COURT: Those have not been ruled on 2 actually. They were moved. Were there any 3 objections? 4 MR. GEISMAR: No objections. 5 MS. JONES: They're admitted. 6 (Respondent's Exhibits 1 through 4 were 7 marked and received into evidence.) 8 THE COURT: And I have the five for Petitioner 9 and they've been ruled on. 10 All right. Parties have a right to submit a 11 proposed recommended order. I presume you want to 12 do that. 13 MS. JONES: Yes, Judge. 14 THE COURT: If you're going to transcribe 15 this, I'll start your time running from the date 16 the transcript is filed. Alternatively, it will be 17 starting from today's date. So do you intend to 18 transcribe? 19 MS. JONES: I'm not sure at this point, Judge. 20 Can you -- can we ask that it start, if it is 21 transcribed, from that date? Do you want us to let 22 you know? 23 THE COURT: You can advise me within, let's 24 say, what, five days if you decide not to? 25 MS. JONES: Yes, sir, that's fine. VOLUSIA REPORTING COMPANY 214 1 MR. GEISMAR: I think we are going to -- 2 THE COURT: How much time do you need for 3 that? 4 MR. GEISMAR: I think we are going to 5 transcribe it, Your Honor. 6 THE COURT: Okay. 7 MR. GEISMAR: Can we have 21 days? 8 MS. JONES: I'm sorry, 21 days to get the 9 transcript? Is that the question? 10 THE COURT: No, to do proposed recommended 11 orders. 12 MS. JONES: And that's going to start from the 13 day the transcript is filed? 14 THE COURT: Correct. 15 MS. JONES: That should be fine, Judge. 16 THE COURT: All right. Proposed recommended 17 orders will be due 21 days after the filing date of 18 the transcript, counted in the usual manner like 19 the civil rules. You probably already know this, 20 but in your proposed recommended order, if you want 21 a format, you can go on our website or call my 22 assistant if you'd like, either way. 23 No particular format is required except that 24 you need your proposed findings of fact separately 25 stated from your proposed conclusions of law. VOLUSIA REPORTING COMPANY 215 1 Any argument, citations and authority and all 2 that go in your conclusion of law. Okay? 3 MR. GEISMAR: Yes, sir. 4 THE COURT: All right. Anything further? 5 MS. JONES: No, sir. 6 THE COURT: We're adjourned. 7 (The proceedings concluded at 4:38 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VOLUSIA REPORTING COMPANY 216 1 REPORTER'S CERTIFICATE 2 3 STATE OF FLORIDA ) 4 COUNTY OF VOLUSIA ) 5 6 I, Shawna R. Stimson, RPR, FPR, certify that I 7 was authorized to and did stenographically report 8 the foregoing proceedings (Pages 1 through 215), and 9 that the transcript is a true and complete record of 10 my stenographic notes. 11 I further certify that I am not a relative, 12 employee, attorney, or counsel of any of the 13 parties, nor am I a relative or employee of any of 14 the parties' attorney or counsel connected with the 15 action, nor am I financially interested in the 16 action. 17 Dated this 7th day of May, 2009. 18 19 ________________________________ SHAWNA R. STIMSON, RPR, FPR 20 COURT REPORTER (This signature is valid only if 21 signed in blue ink.) 22 23 24 25 VOLUSIA REPORTING COMPANY