Judge hears arguments in deputies’ cases against Sheriff Clovis Watson

BY JENNIFER CABRERA

GAINESVILLE, Fla. – Judge Donna Keim heard arguments today in three lawsuits filed by Alachua County Sheriff’s Deputies against Sheriff Clovis Watson, Jr., alleging that Alachua County Sheriff’s Office (ASO) disciplinary procedures violated the Officers’ Bill of Rights.

The lawsuits are seeking Writs of Mandamus ordering the Sheriff to convene compliance review hearings and reopen Administrative Investigations that have resulted in 2 days of suspension without pay and 12 months of probation for Captain Rebecca Butscher, 18 weeks (and counting) of administrative leave for Sergeant Kevin Davis, and termination for former Sergeant William “Frank” Williams.

All three of the deputies were in the courtroom, but Sheriff Watson did not attend the hearing.

Deputies’ attorney makes her case

In opening her argument, Bobi Frank, the deputies’ attorney, told the judge that the case is “not as convoluted as the voluminous binders would indicate” and that the Sheriff has a “clear legal duty” to convene the compliance review hearing.

Frank read from Florida Statute 112.534, which 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. However, ASO has refused to hold compliance review hearings for the three deputies.

Frank also stated that the statutes require the investigation to be paused until the compliance review hearing is completed, and if the hearing determines that the violations were intentional, the investigator must be removed and must be put under their own formal investigation–“and it’s the sole purview of the compliance review panel to do so.” A compliance review panel is made up of three members: one chosen by the plaintiff, one chosen by the defendant, and a third chosen by the first two. The panel can hear evidence, review relevant documents, and hear arguments, but the evidence is strictly limited to the allegation under consideration and may not be related to the disciplinary charges pending against the officer.

Frank also pointed to Florida Statute 112.533, which states that every law enforcement agency shall have a system for investigating complaints, and that “shall be the procedure” for investigating a law enforcement officer; she said the investigations of the three deputies involved “numerous violations” of ASO policy 1.2.2.

In Williams’ case, Frank said that not only did ASO not stop the investigation after being notified of violations of the Officers’ Bill of Rights, the agency also closed the investigation the same day it received that notification and then fired Williams.

Frank said that Davis’ investigation was also not paused, and she produced a certified letter that was sent to him a few days ago, asking him to come in to review evidence, an action she called “inexplicable.” Davis has been required to stay home during working hours for the past 18 weeks for an alleged social media policy violation, and in April, he was notified that he is not permitted to leave his house for lunch.

In Butscher’s case, which Frank said was “just strange, odd,” then-Major Lance Yaeger recommended termination of Butscher after she provided notice that her rights had been violated; the investigation was not stopped, and Butscher received two days of unpaid suspension and a 12-month probationary period.

Sheriff’s attorney

Wayne Evans, who filed a notice to appear for Sheriff Watson a week ago, presented the arguments for the Sheriff with ASO General Counsel Jacob Rush at his side; he repeatedly argued that policies of a law enforcement agency are not “rights” as described in the Officers’ Bill of Rights. He said that only the enumerated rights in the statute applied, not the policy violations alleged by the deputies. He also argued that there’s nothing in the Bill of Rights that says every complaint must be investigated, and there is no requirement to interview the subject of an investigation; in fact, he said, “a Sheriff could fire a deputy without doing an investigation, that would not be a violation of the Bill of Rights.” Evans said that the Officers’ Bill of Rights does not state that the Sheriff can’t deviate from the agency’s procedures: “There’s no intent that if there is some discrepancy between what forms need to be done or what order they need to be done, that that now is subject to a compliance review panel.”

Evans argued that there was no violation of the Bill of Rights because interviews were not conducted with the deputies: “If, in fact, the contention is they had to identify all the witnesses, but there’s no interview… where’s the violation? Where’s the harm? There was no intent to go forward with the interview. So there could be no possible violation.” He then argued that ASO remedied the violations by not going forward with the interviews.

As Evans began discussing the individual deputies’ cases and started reading aloud the social media post that led to the investigation against Williams, Frank objected, stating that Evans had added documents in his “Composite Exhibit Six” that were not in her “Exhibit Six”; she objected to this because her “Exhibit Six” comprised all of the documents that were provided to Sergeant Williams with the Notice of Intent to Terminate. She said that the documents added by Evans were not provided to Sergeant Williams; Frank said she had to do a public records request to get those documents. She said the failure to provide those documents was one of the contentions of the case because it’s required that “there shall be the entire evidentiary file” when a Notice of Intent to Terminate is issued.

Frank also objected to reading the post aloud, saying it was “not relevant or material to what’s in front of the court here today.”

Evans then read the social media post and said Rush “discovered” the post, then Rush informed the Office of Professional Standards at ASO; then the investigation began. Evans went through the alleged violations, beginning with a complaint that the investigation wasn’t referred to Williams’ immediate supervisor; Evans said, “One, that’s discretionary, and two, it should be obvious that that was written so it would apply to external complaints.” He again stated, “Policies do not create rights.”

Regarding Williams, Evans said it was clear that he knew what he was accused of: “The Facebook posts, in particular, were provided to him. There’s no surprise here, there’s nothing that says he didn’t know what was being done. They’re basically making a technical violation allegation, saying you didn’t comply with the letter of this policy, in order to bring… the investigation to a halt with a compliance review panel.”

As Evans continued to walk through the alleged violations against Williams, Frank pointed out to the judge that each lawyer had been given 45 minutes, but she had reserved 15 minutes of her time to respond to the Sheriff’s argument, and there were only 20 minutes left in the hearing.

Evans said he would “move this along” and again argued that policies do not create rights. Judge Keim stopped him, saying that Statute 112.533 states that “every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement officer… You’re arguing that it’s discretionary, but the statute says, ‘You shall.'”

Evans responded, “There’s a distinction between violating the policy and a violation of the Bill of Rights.” Judge Keim read the statute again, emphasizing the “shalls.” Evans again argued that only the rights listed in the statute are included in the Bill of Rights.

At this point, Evans had used all of his time, but Judge Keim asked him to give his response to the Butscher and Davis complaints.

Regarding Butscher, Evans said the complaint stated that Butscher was directed to prepare a report, but “that is simply not the case.” He said the transcript clearly shows that Yaeger said, “I’m going to give you the opportunity to provide a recorded or written statement.” Evans concluded, “She was given the choice.” He added, “With respect to all of this, there’s nothing to show with respect to irreparable harm… The findings were based upon the evidence that was there… These supposed violations of policy are relatively immaterial and technical in nature… There was no prejudice.” He again stated that because there was no interview, the technical violations of not providing all the evidence, for example, were irrelevant.

Regarding Davis, Evans said again that Davis knew what he was accused of, and any policy violations were “discretionary.” One allegation made in the complaint was that although Rush initiated the two social media complaints, he was never interviewed; Evans said, “He didn’t have any material information. But if there’s no interrogation, again, that’s not a violation of the Bill of Rights.” Evans said again that the complaints were basically about forms that were completed “perhaps not in the right order… It’s nothing but an effort to obstruct the investigations… And to the extent that the investigation went forward, again, I repeat that there is nothing that requires an interview to be done.”

Deputies’ attorney responds

Frank said she was “shocked” that Evans argued that policies are not rights in this context. She referred to Article 1, Section 6 of the Florida Constitution, which states, “the rights of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” Frank produced the ASO Collective Bargaining Agreement, which states that the Sheriff provides statutory implementation of that section of the Constitution and that the Sheriff shall provide the union with “changes and updates in directives… sufficiently in advance of their implementation for the [union] to make a demand to bargain over the impact.” She said that means the Sheriff does not have unilateral authority to change or deviate from policies.

Frank read from the Collective Bargaining Agreement: “‘In the course of any internal investigation, the investigative methods employed will‘–synonym for shall–‘be consistent with Sections 112.532 and 112.533.’ They shall follow their own policies.” She argued that it is unconstitutional to violate an employment contract, and the Collective Bargaining Agreement is an employment contract.

She then went to a section on investigative procedures, in which “the parties agree that all internal investigations will be conducted in accordance with ACSO directive 1.2.2, the same directive that says Captain Becky Butscher shall be interviewed, Sergeant Kevin Davis shall be interviewed, Sergeant Frank Williams shall be interviewed… Because Major Lance Yaeger was not, is not, and never has been in Rebecca Butscher’s chain of command, he should never have touched that investigation. So that’s where that policy turns into a right; it’s a contractual right.”

Frank said she wasn’t sure why Evans was talking about “No prejudice, no irreparable harm… I don’t see those terms, those words, anywhere in Chapter 112 or the policy that is in effect here. No prejudice? No irreparable harm? Sergeant Williams is unemployed. He’s terminated, Your Honor, without a blip of due process… Captain Rebecca Butscher, a 30-year veteran, is on probationary discipline for 12 months because Major Lance Yaeger didn’t like the way she looked at him. Sergeant Kevin Davis has been at home for 18 weeks for an alleged social media violation–that’s not even on the disciplinary matrix.” She also pointed out that Williams still doesn’t know who the complainant is in his case–Rush made the initial complaint but said he was not the complainant.

Frank said Evans “spent a lot of time talking about why everything wasn’t a violation. Why can’t we have that discussion and argument in front of a compliance review hearing, the proper place to have it?” She added that the deputies have “no other vehicle, no other area of redress” than the Writs of Mandamus they were requesting.

Sheriff’s attorney responds

Evans responded that if there is a dispute about the Collective Bargaining Agreement, the deputies could use the grievance procedure described in the Agreement. Frank said, “Grievances are for discipline, not violations of rights during the investigation, and there’s a whole bunch of caveats there.” She said that the “exclusive remedy” for violation of rights during an investigation is “contained within the Bill of Rights.”

Judge Keim said she would “enter an order as quickly as I can.”