VOLUSIA EXPOSED

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Is Volusia County's recent policy change, regarding law enforcement misconduct investigations, in compliance with Florida law?

Are Volusia County officials purposely violating Florida's public record laws in order to keep embarrassing situations out of the media?

Updated
December 13, 2011

"Sic semper tyrannis"
Thus Always to Tyrants
Motto - Commonwealth of Virginia

PLEASE BE ADVISED - this situation is currently being heavily reviewed and investigated by VolusiaExposed.
We anticipate regular updates to this developing situation. Please see updates at the bottom of this article.

It has been recently reported, in the Daytona Beach News Journal, that Volusia County government officials have modified their procedures regarding the release of public records involving misconduct allegations filed against law enforcement officers.

Florida law requires that law enforcement officer's internal affairs investigations be released, as public records, once the investigation has been completed or becomes inactive.(F.S. 112.533 and F.S. 119)

Florida Statutes 112.531 to 112.535 are commonly referred to as the Florida Officer Bill of Rights.

The Florida Officer Bill of Rights assigns several time limitations on law enforcement and correctional agencies regarding their internal misconduct investigations.

Prior to this recent change of policy, Volusia County would immediately release, as a public record, the completed internal investigative findings report.

VolusiaExposed.Com suspects that Volusia County's recent policy change is directly related to their desire to do some damage control regarding some recent, highly publicized scandals coming out of the Volusia County Department of Public Protection (VCDPP).

The VCDPP contains several divisions, such as Fire Services, the County Jail, the Beach Patrol, EVAC, Emergency Management and the County Medical Examiner's office.

In the particular, the Volusia County Beach Patrol's underage sex scandal has caused a great deal of embarassment to county officals. Due to this scandal, the county finds itself as a defendant in some federal lawsuits. These lawsuits are slated for courtroom hearings in early January.

Recently, it came to the attention of VolusiaExposed that, other sexually based scandals were possibly developing within the corrections division of the VCDPP. VolusiaExposed received information that at least two Volusia County correctional officers had been placed under investigation for engaging in unprofessional relationships with female jail inmates. Accordingly, VolusiaExposed made a public records request for those internal affair investigations.

On October 16, 2011 - VolusiaExposed sent the below email to the Volusia County Divison of Corrections (VCDC) records custodian, Lt. Larry Langdon. Within that email, we made a public records request for the internal affairs investigations on the two subject correctional officers. Notice in the below email response from L.t Langdon (October 19, 2011) , he does not deny that these matters are being investigated, but rather that they are still under "administrative review"!

We suspect that Volusia County might be attempting to delay the release of documents attached to these new sex scandals, within the VCDPP's Corrections Division, until after the federal lawsuits have been resolved regarding the VCDPP's Beach Patrol sex scandal. In short, Volusia County must attempt to negate the accusation (in the federal suits) that the VCDPP / Beach Patrol allowed a longstanding culture of sex abuse to exist within the VCDPP. Obviously, the release of records regarding the alleged sex scandals with the Corrections division of the VCDPP does not serve the county's agenda of denying the existence of such a culture.

After the publication of the November 2, 2011 News Journal article, VolusiaExposed requested a copy of any documents that supported the county's policy change. In response, we received a copy of Assistant County Attorney Nancye Jones' October 27, 2011 email to several ranking county officials, whereas Jones' supports her opinion, that Florida Attorney General Opinion 95-59 (AGO 95-59), authorizes Volusia County to withhold the release of public records pending the finalization of pending disciplinary actions against law enforcement officers.

After a detailed review of AGO 95-59, VolusiaExposed holds the opinion that Volusia County's refusal to immediately release law enforcement officer's investigative files upon completion of the IA investigation are possibly violations of Florida law, in the particular, F.S. 112.533 and F.S. 119.

VolusiaExposed.Com sent the below email to Volusia County officials in an attempt to gain some clarity regarding the county's position, and to express our concerns. We invite you to read our email to Volusia County officials.

Volusia County Spokesman, Dave Byron did provide the below response to our concerns.

Notice that in Mr. Byron's response, he implies that the Volusia Sheriff Department's Directive 26 - will be incorporated into all law enforcement / correctional agencies within Volusia County Government.

And as promised by Mr. Byron, we did receive an email from Volusia County Sheriff's Public Information Officer, Gary Davidson.

Mr. Davidson confirms VolusiaExposed.Com's position that the County Personnel Board is a post disciplinary procedure, therefore is NOT a pre-disciplinary hearing, as discussed in AGO 95-59.

Mr. Davidison goes on to explain VCSO's Directive 26 is the pre-disciplinary process that VCSO has used for years to ensure that Volusia County deputies rights are not violated while being investigated for misconduct.

Interestingly, we invited you to compare VCSO Directive 26 to County Merit Rules 86-455 - we believe you will find that both are very similar in wordage.

So, if the VCSO pre-disciplinary procedure is basically County Merit Rule 86-455, and all county department's are obligated to be following County Merit rules, what is NEW?

VolusiaExposed.Com sent Mr. Byron and Mr. Davidson another email attempting to gain further clarity of the county's NEW policy.

Although it is clear that VCSO Directive 26 does contain some time limitations attached to misconduct investigations, County Spokesman, Dave Byron sent us an email response whereas, he clearly denies the existence of these time limitations.

County Spokesman, Dave Byron is either clearly ignorant of the statutory requirments attached to misconduct investigations, or he has opted to totally ignore them.

However, in Mr. Davidson's second response, he does acknowledge the existence of the statutory time limitations, that are in addition to county directives, regarding the disposition of misconduct investigations.

In the particular, we appreciate Mr. Davidson's inclusion of VCSO Directive 52.1.52 which clearly indicates that misconduct investigations must be concluded in a reasonable amount of time, and are not to exceed the statutory requirement of F.S. 112.532 (180 days).

Directive - 52.1.52
"The impact of cases that reflect on the integrity of the Department
and employee morale necessitates an expeditious resolution.
Therefore, complaints investigated by the Internal Affairs Unit shall
be completed within a reasonable time period. This time period will
not exceed the statutory requirements of FSS 112.532"

VolusiaExposed suspects that Volusia County officials have "cherry picked" a rather dated Attorney General Opinion, in an attempt to side step their obligations to release officer misconduct investigation in a timely manner.

We support this opinion as follows:

1. AGO 95-59 was a VERY strict opinion on the investigative procedures in place within the Cape Coral police department. AGO 95-59 clearly states that any pre-disciplinary process (as defined in AGO 95-59) is INCLUSIVE (emphasis added) to the investigative process. Florida Statute 112.532(6)(a) assigns a time limitation of 180 days on misconduct investigations, therefore, in our opinion, the pre-disciplinary process would suffer from the very same time limitation.

2. Finally, it is of great significance that in AGO 95-59, the Attorney General notes F.S. 112.533(2)(b) it states that an investigation / administrative review on a law enforcement officer becomes open to public record release when it becomes "inactive." The Attorney General also noted the fact, that F.S. 112.533(2)(b) further states -"an investigation shall be presumed to be INACTIVE if no finding is made within 45 days after the complaint is filed."

We further support our opinion by providing pages 28-30 of the 2011 Legal Guide for public records within law enforcement agencies, as published by the Florida Attorney General's office.

Thank you for reading this. This web page will be updated as the situation develops. Feel free to send your comments to our website's email address.

UPDATE - December 13, 2011 -

In support of our argument that, absent any criminal charges, an internal investigation into a law enforcement or correctional officer becomes open to public record release after 45 days, regardless if the investigation is complete, we offer the following quote from the Florida State Attorney's below web page.

"A complaint is presumed to be inactive, and hence subject to disclosure, if no finding is made within 45 days after the complaint is filed. Section 112.533(2)(b), F.S. See City of Delray Beach v. Barfield, 579 So. 2d at 318 (trial court's finding that complaint was inactive, despite contrary testimony of law enforcement officers conducting the investigation, comes to appellate court "clothed with its own presumption of correctness--especially, as here, where there is other record evidence which sustains it")." (look at subject 11 within the below list Florida Attorney web article)

Therefore, we disagree with County Spokesman, Dave Byron - when he states in a recent email, that - "The Gardner IA remains open and active. As such it is not subject to public disclosure under Section 112.533 (2) (a) Florida statutes. -- Dave Byron, Community Services Director"

END OF DECEMBER 13TH UPDATE

UPDATE - December 7, 2011 -

On December 7, 2011 - VolusiaExposed.Com sent Volusia County officials an email which detailed our position, that per Florida Statutes and supported by Florida case law and Attorney General opinions, - certain internal affairs records are now 45 days old and therefore, should be made available for public inspection. We invite you to review our email at the below web link.

END OF DECEMBER 7TH UPDATE