GPD officer files lawsuit alleging violations of the Officers’ Bill of Rights

BY JENNIFER CABRERA

GAINESVILLE, Fla. – A Gainesville Police Department (GPD) Sergeant has asked Judge Donna Keim to issue a Writ of Mandamus ordering GPD Chief Lonnie Scott to hold a Compliance Review Hearing, as required by the Officers’ Bill of Rights. A Writ of Mandamus is used to command public officials to “perform ministerial duties that they have a clear legal duty to perform.”

Florida Statute 112.534 requires that if the person conducting an investigation of a law enforcement officer refuses to comply with the statutory provisions, and then the officer provides notice of an intentional violation but the violation is not cured, the officer can ask that the agency head be advised of the intentional violation–and the investigation “shall cease” at that point. The statute states that a Compliance Review Hearing must be held within 10 days after the request for the hearing is filed. 

The petition, filed by Attorney Bobi Frank, is similar to the petitions filed last year against former Sheriff Clovis Watson; Judge Keim ruled in favor of the deputies in all three of those cases. 

Sergeant Aaron Wagle’s petition

Sergeant Aaron Wagle has served as a sworn law enforcement officer for 27 years and has been with GPD for over 15 years. He has served as a Field Training Officer, School Resource Officer (Westwood Middle School), Patrol Deputy, Corporal, and Patrol Corporal. He worked at the Santa Fe College Kirkpatrick Center for over eight years and has served as Patrol Sergeant since January 2022.

Sgt. Wagle received an email on November 27, 2023, alleging misconduct against him; the petition states that the tracking number on the Internal Affairs (IA) Investigation was also used for an investigation against one of his subordinates, alleging that the subordinate was writing untimely reports. The email from the investigator to Wagle is included in the petition, and it contains no information other than the tracking number of the investigation and a notice that “a complaint has been filed against you in Internal Affairs.” The email instructs Wagle to contact the investigator within seven days.

Two investigators conducted a formal interview of Sgt. Wagle on December 6 but reportedly refused to admit that Wagle was the subject of the IA Investigation. A second interview was conducted on December 29. At both interviews, the investigators read a “Garrity warning,” which is required in IA investigations.

On January 11, Wagle received a second notification that he was the subject of an IA Investigation. This email is also included in the petition, and the only difference between the November 27 and January 11 emails is that the January 11 email adds, “FOLLOW-UP INTERVIEW – I have an additional IA disc for you.”

GPD General Order requires investigations to begin as Preliminary Inquiries by direct supervisor

The petition states that one of the investigators labeled the investigation a “fact finding mission,” but investigators do not have the authority to conduct “fact finding missions” under GPD policies or the Officers’ Bill of Rights.

GPD General Order #26.5 requires that Preliminary Inquiries (the first stage of any allegation of misconduct) can only be conducted by a direct supervisor, and neither investigator is Wagle’s supervisor. The same General Order states that officers under investigation must be informed in writing of the nature of the investigation and the names of all complainants prior to being interviewed. 

Wagle alleges intentional violations of Officers’ Bill of Rights

Frank sent an email to GPD on January 15 that provided notice of violations of the Officers’ Bill of Rights. The notice specifically stated that GPD had refused to provide the name of the complainant or the written complaint prior to Wagle’s interview and identified these as “intentional violations” of Florida statutes; the letter stated that a Compliance Review Hearing “shall be conducted within (10) working days of the date of this notice.”

On January 17, one of the investigators produced a written complaint dated the same day. The complaint, which lists the investigator as the complainant, alleges that Wagle was interviewed on December 6 and December 29 and provided documents related to the investigation, and “Subsequently, there are allegations of officer misconduct including untruthfulness, false statements, perjury, and fabrication of documents/evidence.” The investigator attached the complaint to an email to Frank and wrote, “Please find the attached regarding your concerns of any alleged violations of Chapter 112.” Frank responded that the complaint did not cure any of the violations and that her January 15 email had started a 10-day time frame to convene a Compliance Review Hearing.

The investigator responded, “I respectfully request that you put in writing the alleged intentional violations of FSS 112 that you believe are still outstanding.” Frank responded, “I already have.”

“GPD did not fail to inform Sergeant Wagle of the nature of the investigaton against him… as none existed”

On January 18, the investigator sent Frank an email stating that Wagle was initially not a subject of the investigation but “only as a person who may have information to the underlying complaint.” She added that at the time of the interview, “we were forthcoming and advised him there may be misconduct on his part as he was the listed subject’s supervisor. As such, GPD did not fail to inform Sergeant Wagle of the nature of the investigaton against him or the complainants lodging allegations against him as none existed. Nor did GPD fail to ensure an allegation against Sergeant Wagle at that time was reduced to writing as none existed.”

The email said that the complaint signed on January 17 “reduc[ed] the newly discovered allegation against Sergeant Wagle to writing and provided [an IA form] with Sergeant Wagle as a subject of the IA investigation.” She wrote that this cured all alleged violations.

Frank responded, “I am certain that you did not intend to admit that you have intentionally violated Agency policies below, but the reality is, you have.” Frank attached the rulings from Judge Keim in the three deputies’ cases and said the cases were “eerily similar” because the investigator was also the complainant in those cases, and he “violated multiple internal policies throughout.”

Frank also asserted that the investigator’s admission that she is the complainant and didn’t fill out the form until January 17 “has now placed you in a conflict of interest as well as likely a subject of a future investigation.” Frank pointed out that the investigator had sent two previous emails to Wagle that identified him as the subject of the investigation. Frank also pointed out that the only type of investigation allowed under GPD’s policies would need to start with a Preliminary Investigation by his supervisor.

City: “The issue is moot”

A January 24 email to Frank from an Assistant City Attorney reiterated that the City believes GPD has cured the violations and that “GPD had not wavered in its position on trying to in good faith resolve the matter.” The email said GPD has removed both investigators from the investigation: “As the removal of the investigator from further involvement with the investigation of the officer is the sole remedy under the BOR (Officers’ Bill of Rights), any and all violations of the BOR have been cured at this time… As such, GPD denies your request for a compliance review hearing as the issue is moot.”

Frank argues in the petition that “GPD does not have the authority to ‘deny’ the invocation of a Compliance Review Board… GPD has a non-discretionary, ministerial duty to convene a Compliance Review Hearing when one is invoked.”

Judge Keim’s ruling in May 2023 agreed with Frank and stated, “Defendant has not demonstrated that the Officers’ Bill of Rights provides any discretion whether to convene a Compliance Review Hearing, and… there is no other adequate remedy available to address allegations that the Officers’ Bill of Rights was intentionally violated.”

Next steps

The next step in this case will be for Judge Keim to issue an order stating that Wagle has demonstrated a preliminary basis for relief, assuming she agrees with the arguments in the petition. GPD will then be granted 30 days to file a response stating why the City believes the Compliance Review Hearing should not be granted, and Frank will have 15 days to respond to that. The final hearing in the deputies’ cases was held about two months after their lawsuits were filed, and Judge Keim’s order granting the Writs of Mandamus was filed a few days later. After receiving the Writs, Sheriff Watson decided to reverse all disciplinary actions instead of holding the Compliance Review Hearings.

What is a Compliance Review Hearing?

A compliance review panel is made up of three members: one selected by the agency head, one selected by the officer filing the request, and a third member selected by the other two members. The panel members must be law enforcement officers from the same law enforcement discipline as the officer requesting the hearing, but panel members may be selected from any state, county, or municipal agency within Alachua County.

The panel is tasked with reviewing the circumstances and facts surrounding the alleged intentional violation of the officer’s rights to determine whether or not the investigator or agency intentionally violated the officer’s rights; the panel will not hear any evidence related to the disciplinary charges pending against the officer. The officer bears the burden of proof in establishing that the violation of rights was intentional. The determination must be made at the conclusion of the hearing, in writing.

If the panel finds that the violation was intentional, the investigator must immediately be removed from any further involvement with the investigation, and an investigation must be initiated against that investigator for purposes of agency disciplinary action. If the investigation is sustained, the allegations are forwarded to the Criminal Justice Standards and Training Commission for review as an act of official misconduct or misuse of position.