VOLUSIA EXPOSED

VOLUSIA EXPOSED.COM

THE CAPTAIN GARDNER SAGA CONTINUES

Did county officials generate falsified documents during the Captain Rich Gardner termination?

Did the County's termination of Captain Gardner, violate Florida Statutes, in the particular F.S. 112.532?

Did the county exceed their investigative time limits?

Was one of the Personnel Board members ineligible to sit on the Board, if so how does that affect the Board's recommendation?

Did Volusia County officials violate the Volusia County Charter, in the termination of Captain Rich Gardner?

Updated
June 18, 2012

"A liar, after all, is a liar"- Volusia County Circuit Court Judge, Joseph G. Will

DID AN ASSISTANT COUNTY ATTORNEY LIE
TO A CIRCUIT COURT JUDGE?

VolusiaExposed.Com recently published an article that detailed the Volusia County Personnel Board hearing of Beach Patrol, Captain Rich Gardner

Within the above web page, VolusiaExposed.Com voiced some concerns regarding the County's veracity during the processing of Captain Gardner's case - one example, in the particular, was our concern, that Assistant County Attorney, Nancye Jones lied to Circuit County Judge Rouse, during a January 2012 hearing.

Clearly (see below video), during the January 2012 hearing, Attorney Jones assures Judge Rouse that she would NOT object, should Gardner wish to argue violations of his Florida Law Enforcement Officer's Bill of Rights. However, it is also obvious, that Attorney Jones did place such an objection, on the record, during Mr. Gardner's personnel board. (see below video)

In a January 2012 hearing in front of Judge Rouse, Attorney Jones assures Judge Rouse that she would NOT object to the Personnel Board hearing the allegations, that Captain Gardner's Florida Officer Bill of Rights were violated by County Officials.

Attorney Jones places an objection during the April 2012 Gardner Personnel Board, regarding the board addressing any alleged violations of Captain Gardner's Officer Bill of Rights.

When mislead a Circuit Court Judge, it's perjury and she is arrested.

If you misled a Circuit Court Judge, as an officer of the court (attorney) - what happens? - Not a thing.

So goes, justice and politics in Central Florida.

Documents associated with
Captain R. Gardner

------------------------------------

Additional VolusiaExposed articles associated with
Captain R. Gardner

------------------------------------------

MORE LIES AND FALSIFICATIONS ?

VolusiaExposed.Com has recently discovered, via public records, that during Captain Gardner's personnel board hearing, Volusia County Personnel Director, Tom Motes, was hiding an important fact from the County Personnel Board.

While Assistant County Attorney, Nancye Jones was busy assuring the County Personnel Board members that Captain Gardner had been "terminated" from his county employment, he (Gardner) was actually an employee of Volusia County, in a "leave without pay status".

Within the below March 27, 2012 letter, Mr. Motes states that for purposes associated with the Florida Retirement System, the county would consider Captain Gardner in a "leave without pay status".

How can a person be defined as an "employee", on leave without pay, for some purposes, and for other purposes, be considered as a terminated employee?

Why would Mr. Motes document in his March 27, 2012 letter that Captain Gardner was in a "leave without pay status", and then remain silent about his status at the personnel board hearing? Mr. Motes is the man in the tan coat and red tie that can be seen to Nancye Jones' right in the above video.

Additionally, other county documents, clearly indicate, that Captain Gardner WAS terminated (dismissed) on January 16, 2012. In the below attached County Personnel Action Form, it documents that Gardner was dismissed as of January 16, 2012, due to Internal Affairs case number 2011-09-297. Further, it documents that he was only entitled to a 20% pay out, of his leave time balance. (Per county merit rules, any employee that is terminated for cause, is only entitled to 20% (rather than 100%) of his or her leave time balance)

VolusiaExposed.Com has learned that county officials have retro-paid Captain Gardner, his leave time balance at 100%, rather then the prior 20% payout. Just not at his pay rate at the time of his termination.

It appears obvious, by reviewing additionally attached records, that the County of Volusia was attempting to "back pedal" on some of their actions against Captain Gardner, due to that fact that the county had unjustly placed many of Gardner's employee benefits (Retirement / Health insurance) in jeopardy.

While we might applaud the county's attempts, to correct their errors against Captain Gardner, we can not support their methods (apparently falsifying records) of achieving their goal.

------------------------------------------

VIOLATION OF FLORIDA STATUTES BY VOLUSIA COUNTY OFFICIALS?
FLORIDA OFFICER'S BILL OF RIGHTS VIOLATIONS

VolusiaExposed.Com also believes that the County of Volusia violated Florida law (F.S. 112.532), in their termination of Captain Gardner.

Florida Statute 112.532(6)(b) reads as follows:

F.S. 112.532 6(b) - An investigation against a law enforcement officer or correctional officer many be reopened, not withstanding the limitation period for commencing disciplinary action, demotion, or dismissal, if: 1. Significant new evidence has been discovered that is likely to affect the outcome of the investigation. 2. The evidence could not have reasonably been discovered in the normal course of investigation or the evidence resulted from the pre disciplinary response of the officer. Any disciplinary action resulting from an investigation that is reopened pursuant to this paragraph must be completed within 90 days after the date the investigation is reopened.

The County of Volusia had initially closed their investigation on Captain Gardner in mid October 2011. However, based on some concerns voiced by Gardner's attorney, Jake Kaney, the county (Director Coffin) re-opened the Gardner investigation on October 25, 2011.

Since, Director Coffin opted to re-open the investigation on Captain Gardner, the 90 day time limit started, as defined in F.S. 112.532. In short, the county had 90 days to complete the disciplinary action against Captain Gardner.

Therefore, the County of Volusia had until January 22, 2012, to finalize their disciplinary action against Captain Gardner.

Since, via public records, it is clear that the County of Volusia decided to terminate Captain Gardner's employment of January 16, 2012, they (the county) were at that time, in compliance with F.S. 112.532.

Apparently, the Volusia County Beach Patrol even notified the Florida Department of Law Enforcement, that they had terminated Captain Gardner in January 2012.

However, in a letter received on March 20, 2012, FDLE was advised by Volusia Beach Patrol Captain Berard, that the county had "prematurely" (January 17, 2012) reported Gardner's termination to FDLE. Captain Berard's letter further stated that the "investigative and appeal process" was still active in the Gardner situation.

Clearly, if the Volusia County Beach Patrol was still "investigating" (as indicated by Captain Berard's letter) the allegations against Captain Gardner in March 2012, there is little doubt that the county had exceeded the statutory time limitations defined in F.S. 112.532.

Therefore, since the re-opened internal affairs investigation was not concluded prior to the ninety day limitation, the disciplinary action applied against Captain Gardner would appear to be outside the mandates of Florida law.

------------------------------------------

WERE ALL PERSONNEL BOARD MEMBERS, ELIGIBLE TO SIT ON THE PERSONNEL BOARD?
Is Mr. Dwight Lewis' assignment to the County Personnel Board in violation of County Merit Rules / County Charter?

According to the below Volusia County records, Mr. Dwight Lewis is both a member of the Volusia County Personnel Board and a Volusia County Growth Management Commissioner.

While, Article II of the Florida Constitution forbids a person to hold more than one "public office", the County Personnel Board would NOT meet the definition of a "public office", due mainly to the fact that the personnel board is solely an advisory board.

SECTION 5. Public officers.— (a) No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.

Therefore, Mr. Dwight Lewis' assignment to both the Personnel Board and as a Commissioner on the Growth Management Commission, would NOT create a violation of the Florida Constitution.

However, as per Volusia County Merit Rules, in the particular, , a person can not serve as a Personnel Board member, if they also hold public office or employment.

Since, the Volusia County Merit Rules are incorporated within the Volusia County Charter, a violation of the Merit Rules would be a violation of the Charter.

So, is a commissioner on the Volusia County Growth Management Commission a "public office"?
Well according to the below application, it clearly indicates that a commissioner within the Growth Management Commission, is a "county office", also, requiring the filing of mandated financial disclosures for all "public office" holders.

Research by VolusiaExposed.Com also uncovered the below Attorney General's opinion (2008-61), which clearly indicates that a commissioner on the Volusia County Growth Management Commission is a "public office".

Apparently, Mr. Lewis is somewhat aware of his responsibilities to follow both the Florida State Constitution and County Merit Rules. In 2010, when Mr. Lewis decided to run for the Volusia County Council, he submitted the below resignation letter resigning his positions on both the personnel board and Growth Management Commission.

We just don't understand how Mr. Lewis, nor the county, can not appreciate that his current assignment as a Growth Management Commissioner would restrict his assignment to the County Personnel Board.

Apparently, sometime after his 2010 run for County Council, he was re-appointed to both the Personnel Board and to the Growth Management Commission. Once again, the County of Volusia failed to recognize the conflict of interest in his assignments to the Personnel Board and the Growth Management Commission.

------------------------------------------

DID DWIGHT LEWIS' ASSIGNMENT TO THE PERSONNEL BOARD,
HAVE A NEGATIVE IMPACT ON THE GARDNER HEARING?

During Captain Gardner's personnel board, the board recommended sustaining only one charged violation against him. In a two to three vote, Mr. Lewis supporting the violation, the personnel board recommended that the charged violation of County Merit Rule 86-453(13) be sustained against Captain Gardner.

86-453(13) Any conduct, on or off duty, that reflects unfavorably on the county as an employer.

Again, this was the ONLY sustained violation by the County Personnel Board.

Therefore, absent Mr. Lewis' vote on that particular charge, the County Personnel Board would have sustained none of the county's charges against Captain Gardner. Obviously, if the Personnel Board would not have sustained any of the county's charges, this fact would have influenced the personnel board's disciplinary recommendations.

Obviously, it is safe to conclude, that the county's final actions of re-instatement, with a demotion to correctional officer, would have also been influenced, if the personnel board would have not sustained any of the charges against Captain Gardner.

To add insult, to injury, this is NOT the first time, the County of Volusia has had an ineligible member on it's Personnel Board.

Watch and listen, as Dwight Lewis is the deciding vote (3-2), in the sustaining of the only charge against Captain Gardner.

------------------------------------------

CONCLUSION - DID CAPTAIN GARDNER GET A FAIR SHAKE AT THE COUNTY PERSONNEL BOARD?
Well, lets see:

1. An Assistant County Attorney apparently mislead a Circuit Court Judge into believing that she would not object to the County Personnel Board hearing possible violations of the Officer's Bill of Rights (Florida Statutes)

2. County officials, to apparently include, the County Personnel Director, appears to have falsified documents regarding Captain Gardner's employment status.

3. Documentation appears to support that, Captain Gardner's re-opened investigation exceeded the ninety days time limitation, in violation of Florida Statutes (F.S. 112.532 - Florida Officer's Bill of Rights)

4. One of the Personnel Board members appears to have been ineligible to sit on the board. This board member casting the deciding vote to sustain the only charge against Captain Gardner.

Ironically, the County of Volusia has taken disciplinary actions against several of it's employees, for violations of policies, and when a policy does not exist, for violations of common practices. However, at the same time, the county can't seem to follow Florida State Statutes, or their own County Charter. We guess that, in the fifedom known as Volusia County, it's good to be King !

Follow Us on FACEBOOK too - LIKE our FB page and send us comments

OUR FACEBOOK PAGE
IS UNDER DEVELOPMENT

Please check back often as thing change quickly around here