"I really don't see that he has any compassion for his deputies as people. Nor their families. He has no respect for his people." Gabrielle Powell, divorced widow of Deputy Sheriff Ozell Powell, May 22, 2016.
It is rare for civilians to look inside the Escambia County Sheriff's Office and glimpse the internal culture of overt intimidation and the abrogation of constitutional rights of deputy sheriffs by Sheriff Morgan and Chief Deputy Haines, his chief enforcer. In this blogpost and the next we will look at three Internal Affairs investigations of deputies Ozell Powell (deceased), Donald 'Buddy' Nesmith (retired), and Jacquelyn Gulley (serving). This look inside the ECSO is aided by anonymous comments posted on the Law Enforcement Officer Affairs website, communications from confidential sources close to the ECSO, ECSO data released via public records request, and documents filed in the federal Eleventh Circuit District Court.
The legal employment situation of sheriff deputies in Florida is that they are at "at-will" appointees, not "at-will" employees; that is, as Florida is an "at-will" state for all employees, they serve at the whim and pleasure of Sheriff Morgan (and other elected sheriffs). While the collective bargaining agreement between the ECSO and the Police Benevolent Association (PBA) may have some safeguards regarding procedures for termination, the PBA representatives, who are themselves deputy sheriffs, are subject to the same degree of intimidation and fear of being fired.
Under Florida statute and law, sheriff deputies serve at the pleasure and whim of the sheriff. Florida State Statute 112.535 on Construction states, "The provisions of chapter 93-19, Laws of Florida, shall not be construed...to limit the right of the sheriff to appoint deputy sheriffs or to withdraw their appointment as provided in chapter 30" [emphasis added].
What this essentially produces appears to be a politicized workforce, a workforce that is risk-adverse, and a workforce that is not likely to counter existing policies with innovative policies.
For example, a thread in the LEO Affairs on "Employed or Appointed?" highlighted these problems.
One commenter noted, "The horror stories you hear are true."
A commenter named Bart casually wrote, "that crap happens every time a new sheriff comes to town. ive never been a fan of elected officials having anything to do with law enforcement. the ideal set up is like the one at miami dade PD. have a chief appointed and he stays there until he fuks up or quits. in addition, every officer from deputy chief all the way to officer is given civil service protection. the sheriff's offices down here need to get with the times.."
A commenter named HCSO511 casually concurred, stating "im with bart. that type of thing has been going on forever. if not dismissed or demoted because of the candidate you supported it can happen because someone getting payback for campaign support wants your job. and if they cant just boot you out of your position they can find a way with a little time and patience. everybody makes mistakes. and the first one a person makes that could be easily overlooked will be used to demote you or let you go."
Another commenter relayed his/her story of a young deputy telling the advice received from older deputies: "All the old timers said that self-initiated activity only leads to trouble.... If deputies are appointed by an elected sheriff with no employment rights, then their lack of activity equals job security. I think I'm finally starting to get it. The one think I have NEVER done is laugh at old timers because they still have jobs after 20 or 25 years."
An "old timer" commented: "Being overly proactive always generates complaints. Complaints will always lead to investigations and eventually lead to your pink slip. I've seen it over and over again. Being overly proactive will put you in harms way more often."
So, we civilians need to understand that the sheriff position, an elected position, creates political dynamics inside a Sheriff's Office. The sheriff uses his deputies to campaign for him. They are his or her enforcers in the building. Deputies who oppose the sheriff keep quiet. Deputies who do not kow tow to the political line of the sheriff can be fired, and, a reason for firing can always be ginned up. The schemers, manipulators, back-stabbers, and brown-nosers can gain promotion through accusations against fellow deputies. Once an Internal Affairs investigation is launched, and it drags on interminably, the life of a deputy is living hell. Chief deputies become masters at conniving to gain the top position and to destroy or sideline rivals. A Chief Deputy can create factions, a sort of divide-and-rule strategy to keep hold of his position and to divide the collective bargaining effort. Golden deputies can step out of line without losing their jobs, while reliable, straight-shooting deputies can be eliminated for one small mistake. Innovation is not likely to come from deputies because innovation always entails a critique of the status quo--whatever bureaucratic momentum enjoying the favor of the sheriff--at the risk of one's career. Better simply to survive than to propose an innovative policy or program. Or, if not survive, leave for a better job.
In that bureaucratic culture fostered by a political sheriff and reinforced by a conniving, manipulative Chief Deputy, a bureaucratic reign of terror is not hard to institute and perpetuate. You do not need to victimize everyone. You only need to victimize a few to terrorize the many.
And thus we come to the truly sad and tragic story of Deputy Sheriff Ozell Powell, an Army veteran, a father, a husband, a sufferer of Multiple Sclerosis, and a victim of an unsubstantiated, vicious Internal Affairs investigation instigated by Commander Tharp and backed up by Sheriff Morgan over the non-stealing of a $2.00 baseball card. Yes, that is not a typographical error. This kinetic duo of the ECSO supported by the ECSO's General Counsel launched an Internal Affairs investigation over a two dollar baseball card that Deputy Powell had put in his pocket for safe keeping while waiting to give it to Sheriff Morgan. Deputy Powell would have his heart broken, his stress levels rise, hardship for his wife and children as they would lose their medical insurance, and he would eventually die after resigning. If you do not know, stress exacerbates and brings on episodes of MS. Thus, launching a completely unnecessary Internal Affairs investigation of a deputy with MS over a non-crime could be considered a form of unusual punishment, if not torture.
This is a story that does not make the box score, but tells you everything you need to know about Sheriff Morgan's callousness, ruthlessness, and utter disregard for the health and welfare of his deputies. It seriously calls into question his judgement as the chief law enforcement officer of the county. If you want to invoke terror, make an example of a sacrificial victim.
THE ILL-FATED ACTION AND REACTION
The termination of Deputy Powell from the ECSO on May 16, 2013, was probably preventable had Deputy Powell and Sheriff Morgan interacted differently. The sequence of events shows Deputy Powell filing an Equal Employment Opportunity Commission complaint in April 2013 against Sheriff Morgan; soon thereafter Sheriff Morgan launched an Internal Affairs investigation of Deputy Powell accusing him of stealing a $2.00 baseball card; in December 2013, Deputy Powell sued Sheriff Morgan in U.S. District Court in Pensacola alleging that Sheriff Morgan had discriminated against him on the basis of his MS illness. Such harassment is illegal of a protected person under the Americans with Disability Act.
Deputy Powell's action were ill-advised for two reasons.
One, Sheriff Morgan soon after retaliated by personally directing the Internal Affairs office to launch an investigation of Deputy Powell for stealing a $2 baseball card. And two, on September 30, 2015, the U.S. District Court in Pensacola determined that "There is no evidence in the record to support Powell’s claim of constructive discharge or any other adverse employment action." In fact, the Court noted that up until Deputy Powell filed his EEOC complaint, Sheriff Morgan had accommodated all Deputy Powell's requests for leave and accepted all his certificates of fitness for duty.
Furthermore, the Court found that Sheriff Morgan's actions of placing a surveillance camera at the front desk, requiring Deputy Powell to submit two certificates of fitness for duty, and allowing him to work at the front desk in civilian clothes without a badge and weapon "is wholly insufficient to demonstrate an objectively hostile workplace.... Even accepting his statement that he was not allowed to work in uniform or was not given his firearm and commission card, these conditions do not come close to the type of conduct that has been found to create intolerable working conditions. Absent an adverse employment action, Powell cannot demonstrate a prima facie case of disability discrimination."
Regarding the Internal Affairs investigation, the Court found "There is nothing to show that it was based on anything other than as represented—an investigation into a suspected incident of theft. Powell was placed on paid leave during the investigation, and ultimately, the investigation exonerated him of any wrongdoing."
But, a close reading of the Internal Affairs investigation makes it clear that had anyone in a command position thought for one minute, there would have been no investigation. The factual basis for believing that Deputy Powell had stolen a $2 baseball card is completely lacking. The facts justifying the investigation are ludicrous. Given the degree of ludicrousness, the Internal Affairs investigation appears to be clearly an act of revenge by Sheriff Morgan for Deputy Powell's filing of an EEOC complaint.
THE "CRIME" OF DEPUTY POWELL
The essential facts are these: 1) On April 18, 2013, Bobby Marinin brought a baseball card inside a "grimy" envelope marked "from Bobby to Shuruff" to the administration lobby and gave it to Deputy Powell; 2) Deputy Powell put the baseball card in his pocket and the "grimy" envelope either on top of the trash can or in his desk drawer; 3) Bobby Marinin called the Sheriff's office a few times asking if the Sheriff had received the package; 4) Patricia Yvarra, an administrative assistant, finally received the call from Marinin and went to the lobby; 5) Yvarra asked Deputy Powell for the package; 6) Deputy Powell took the baseball card out of his pocket and retrieved the envelope, put the card in the envelope, and gave both to Yvarra; 7) Yvarra then went upstairs with the card in the envelope and gave them to Anita Brooks-Ingram, Sheriff Morgan's administrative assistant; 8) Brooks-Ingram then went to Commander Tharp and Sheriff Morgan to relay a story of theft; 9) Sheriff Morgan directed Brooks-Ingram and possibly others to run the theft story past Legal; and, 10) Sheriff Morgan directly ordered an Internal Affairs investigation the next day.
The complainant was Sheriff Morgan. Sheriff Morgan claimed he was the victim of a crime.
There are some other details that are contested, specifically what Deputy Powell intended to throw away and whether the "grimy" envelope was in the trash can or his desk drawer. While those facts were never determined by the IA investigators, the evidence suggests that it was the "dirty and grimy" envelope that was going to be thrown away. That quoted description comes from Bertha Lewis' interview with the IA investigators. While the description came from Sgt. Pittman, Lewis twice agreed with that description and never contradicted it, having first described it herself as "grimy." She was standing next to or near Deputy Powell when the envelope was delivered. She told the investigators (pages 36-37 pdf) that Deputy Powell had told her he intended to call Sheriff Morgan's office to have them take possession of the baseball card and that for the two hours or so since the card had been delivered that Deputy Powell had been "quite busy." In fact, Lewis' statement indicates that in the scheme of things that day, the delivery of the baseball was trivial. She certainly did not take special note of it.
In other words, amongst all the duties and tasks Deputy Powell was responsible for, processing reports and other tasks, during a time period when he was "quite busy," he had simply forgotten or been distracted enough not to call upstairs to the Sheriff's office. When asked by Yvarra to give her the package he readily gave it her without a second thought. The IA investigators noted that the surveillance camera footage showed that Deputy Powell had never left his duty station and appeared to be busy. He had certainly not made any furtive movements towards the baseball card.
The following quote is from the original statement of Patricia Yvarra and apparently formed the basis of the IA investigation (page 52 pdf):
"On April 18, 2013 at or around 14:15 hours, I went to the Sheriff's office Administration lobby to pick up a package that was left for the Sheriff from 'Bobby.' When I got there Officer Ozell Powell Jr. was working so I asked him if there was a package left there for the Sheriff from 'Bobby' he [sic] pulled a baseball card out of his shirt pocket and an envelope out of the trash can or his desk drawer and he said 'I was just getting ready to throw it away.'"
Do you see probable cause that a "petit theft" had been committed? Who stole the baseball card? Nobody. Let's launch an Internal Affairs investigation to confirm that nobody stole the baseball card.
Can you imagine if someone in Escambia County had called the Sheriff's Office and stated exactly what Yvarra stated? Do you think the Sheriff's Office would have dispatched a deputy to investigate the "theft" of a $2.00 baseball card? You can almost hear the dispatcher rolling on the floor howling in laughter.
However, on April 19, 2013, Sheriff Morgan directly ordered that an Internal Affairs investigation commence against Deputy Powell. Sheriff Morgan loves to claim that he has three decades of law enforcement experience. Yes, it shows.
Sgt. Barnes's Internal Affairs investigation determined that the accusation of "petit theft" was "unsubstantiated."
But wait, it gets worse.
We do not know what Brooks-Ingram precisely told Commander Tharp and Sheriff Morgan. We only know what she under oath told Sgt. Scott Allday with Sgt. Wayne Pittman attending. And the story she told, sworn to be true, is so stupid that only someone intent on using any pretext for revenge would have acted on it.
Brooks-Ingram told the investigators that she first told Commander Tharp what had happened, that is, her hearsay story of what transpired in the lobby. Then she told Sheriff Morgan the same hearsay story. Sheriff Morgan then directed "us," presumably her, Yvarra, and Commander Tharp to go to Legal (see page 21 pdf).
Now, hearsay may not be exactly correct. Brooks-Ingram did not witness anything in the lobby. The only thing Brooks-Ingram witnessed was afterward Yvarra being "upset" about Yvarra's interpretation of Yvarra's observation of Yvarra's interaction with Deputy Powell.
The investigators asked Brooks-Ingram how Yvarra had reacted to what had transpired in the Administration lobby.
Here is the exact statement Brooks-Ingram stated under oath that she presumably told Commander Tharp and Sheriff Morgan of Yvarra's reaction (page 21 pdf):
"Yes she said she was pretty upset and she said uh, I can see, nobody puts trash in their pocket. Uhm if he had just reached into the trash can and pulled out the envelope with the card in it, she would have thought nothing of it. But the fact that he reached over to get the envelope out of the trash and then pulled it out of his pocket, the card, she said again that you know people don't just throw trash in your pocket to throw away later."
In closing the interview, Sgt Allday asked Brooks-Ingram if there was anything she wanted to say that he had not thought of asking her (see page 23 pdf). She told Sgt. Allday that she and Yvarra began speculating about "why would he just put that in his pocket and our first thoughts, both of us, were well I wonder if the card is worth any money." Apparently, Yvarra and Brooks-Ingram went down to Legal where they spoke with a woman named Carrisa. Having convinced themselves that Deputy Powell intended to steal the card because it was worth money, Brooks-Ingram told the investigators that "Carissa tried to look it up online and uh saw, uh couldn't, you have to become a member and all like that, uhm, what they did, what she did is pick up the phone and call a card dealer place and uhm they said it [sic] worth about ten or twenty dollars." Note, on page 17 (pdf) the card is worth $2.00, not $20 or $10 and there is no evidence provided that anyone quoted those higher figures.
And, what did Yvarra tell the investigators under oath? She was interviewed 14 minutes after the interview with Brooks-Ingram had commenced. She stated a number of things (see page 29 pdf) of relevance. She thought it "odd" that the envelope and the baseball card had been separated. She did not ask Deputy Powell why he had the card in his pocket and she did not ask what he was going to throw away. So, however "odd" she believed Deputy Powell's behavior at that moment, she had no desire to resolve the question in her mind about the "oddness." She told Brooks-Ingram "it just seemed odd to me that he pulled the card out of his pocket and the envelope from somewhere else." She continued (page 30 pdf), "I didn't think anything of it, until he pulled the envelope out of the, from somewhere else. I didn't understand why the card and the envelope weren't still together."
Sgt. Allday immediately asked Yvarra, "Did you think he was trying to steal it or..." and Yvarra interjected, "No. That thought never crossed my mind. It was just odd that it was."
So, the only witness to the "crime" of "theft," Patricia Yvarra, did not think that Deputy Powell was trying to steal the card or had stolen the baseball card. Her only reaction or interpretation of the event was that it was "odd."
Looking at the bureaucratic culture of the ECSO, what would deputies conclude? All you have to do is have a secretary believe your behavior is "odd," even if it was not; if you are already a target of the Sheriff's wrath--whether you know it or not--and the "oddness" of your behavior can be twisted and misconstrued into a criminal act, then you will be subjected to an Internal Affairs investigation. Memo to deputies: do not act odd.
Interestingly, Sgt. Allday then ended the interview with Yvarra and asked no follow-up questions about what Brooks-Ingram had said to Commander Tharp and Sheriff Morgan, or, what Brooks-Ingram had said to Carissa in Legal, or what Carissa in Legal had done with that information. Surely, here was an opportunity to possibly impeach Brooks-Ingram's credibility, but the investigators did not take it. Why? I can only speculate, but it would take investigators with stones the size of Everest to impeach the Sheriff's own administrative assistant.
In fact, it is not clear that Yvarra witnessed any subsequent conversations that Brooks-Ingram had. It would appear that she may not have been a witness to what transpired after she told Brooks-Ingram that she had observed something "odd." After all, if Yvarra did not think that Deputy Powell had intended to steal or had stolen the baseball card, would she not have told her superiors before Sheriff Morgan told Brooks-Ingram to go down to Legal? In other words, there is no corroborating statement that anyone had tried to determine the value of the card or what had actually transpired in the lobby. It certainly appears that neither Sheriff Morgan nor Commander Tharp ever asked Yvarra if she thought that Deputy Powell had tried to steal or had stolen the baseball card.
It also appears that the impetus to launch the IA investigation came not from Yvarra, who was a witness, but from Brooks-Ingram who had no first-hand knowledge of the event in question. Yet, the IA record does not contain the initial statements that Brooks-Ingram told Commander Tharp and Sheriff Morgan. Sheriff Morgan apparently used hearsay evidence of dubious value to launch an Internal Affairs investigation against a Deputy who had recently filed an EEOC complaint against the Sheriff.
What is clear is that at no time did Sheriff Morgan and Commander Tharp reason that the most probable explanation for the separation of the "grimy" envelope and the possibly pristine or cleaner baseball card is that Deputy Powell, a squared-away troop, did not want to dirty his uniform or clothes. For all Sheriff Morgan's experience in the U.S. Air Force and whatever experience Commander Tharp has in law enforcement, that simple idea--keeping one's uniform or clothes clean and saving yourself some money at the cleaners--never entered their mind. These two brilliant law enforcement officials could not fathom Deputy Powell's reason for putting the "grimy" envelope in his trash can or desk drawer and the cleaner baseball card in his pocket.
That Brooks-Ingram's statement is ludicrous is not at issue. Sheriff Morgan using that ludicrous statement to launch a vindictive attack on Deputy Powell via an Internal Affairs investigation is the issue.
Deputy Ozell Powell believed, wrongly it turned out, that he was being discriminated against on the basis of his disabled condition and filed an EEOC complaint against Sheriff Morgan. Very soon thereafter, Sheriff Morgan used a ludicrous hearsay statement from his administrative assistant who did not witness the event--an alleged theft of a $2.00 baseball card by Deputy Powell--to launch an Internal Affairs investigation of Deputy Powell. The other administrative assistant who interacted with Deputy Powell in taking possession of the baseball card and giving it to Sheriff Morgan's administrative assistant never thought that Deputy Powell had stolen or had intended to steal the baseball card. On the basis of groundless speculation--it is odd to put a "grimy" envelope in a trash can or your desk drawer and keep the cleaner baseball card in his shirt pocket--Sheriff Morgan launched an Internal Affairs investigation of Deputy Powell for theft. Any rational person would conclude that Sheriff Morgan's action did not reveal sound legal judgement, an efficient use of Sheriff Office resources, and was, in fact, a cowardly act of revenge on Deputy Powell for having filed an EEOC complaint. Sheriff Morgan may have rightly felt miffed that Deputy Powell had filed an EEOC complaint after Sheriff Morgan had treated Deputy Powell fairly for a couple of years or so. But, from the point of view of the Sheriff, using Deputy Powell as an example of how easy it is to launch an Internal Affairs investigation, Sheriff Morgan could intimidate his subordinates and instill fear. He could make them fear that the slightest, most innocuous behavior deemed "odd" by an administrative assistant could be met with an Internal Affairs investigation. The other message was that if you file an EEOC complaint, it is almost guaranteed that I will make your life a living hell by finding grounds to launch an Internal Affairs investigation. And, the message it gives to favored officers and deputies, if you harass someone in a protected status and that person is a real or imagined opponent of the Sheriff, I have your back. Even if the factual basis is ludicrous beyond belief, no deputy could feel safe. If that is not bureaucratic terrorism, then what is it?