On Dec. 15, 2012, Flagler County Sheriff deputy Joseph Dailey shot and killed 32-year-old Troy Gordon in Gordon’s garage on Brownstone Lane in Palm Coast. According to the Sheriff’s Office, Gordon had been wielding a machete and acting combative and threatening toward deputies. Also in the garage was deputy Brandon Fiveash and a third deputy.
The two deputies have since been cleared in the shooting by an investigation by the Florida Department of Law Enforcement, which found that the deputies did not act improperly, according to Sid Nowell, the Sheriff’s Office’s attorney.
But Dailey and Fiveash, though they were two of the only three witnesses to the shooting, never wrote an incident report on the shooting.
The Sheriff’s Office’s policy on writing reports is unequivocal. Deputies are to write reports on such incidents as shootings within 24 hours. It’s not a state law. It’s an internal policy. But it was not followed.
Jim Manfre was not sheriff at the time, He was not to take office until almost four weeks later. Don Fleming was sheriff. But Manfre’s administration has been placed in the position to defend issues related to the absence of reports, and is defending that absence.
“There are sufficient documents to provide the public and FDLE who will investigate shootings, enough information to determine whether or not a shooting is justified or not,” Nowell said this morning. “What we’re talking about is a policy that’s quite frankly fostered by the Police Benevolent Association the [police union] where they instruct their officers essentially not to give a statement for purposes of, I guess, not incriminating themselves. I don’t know, I can only assume that it’s the right to take the 5th Amendment, I guess, and not give a sworn statement, there at the scene.”
The Sheriff’s Office’s policy, however, gives the deputies 24 hours to provide that statement, and it remains unclear how or a union can trump a sheriff’s policy. “It is a labor relations issue,” Nowell said, “that we have to resolve with the union, because it’s actually evolved into a term and condition of employment, and we can’t change that unilaterally.”
Yes, it’s in policy, Nowell said, “but the policy was not being followed for years prior to the sheriff taking office. It’s not Sheriff Manfre’s policy.”
Nowell thought, but was not certain, that the two deputies provided statements to FDLE.
The revelation about the absent reports was part of an ongoing civil case by the family of Gordon, the shooting victim, against the Sheriff’s Office. That case triggered yet another case over the release of public records and $7,000 in attorneys’ fees Gordon’s attorney is seeking from the Sheriff’s Office because of issues arising from the public record matter.
Marc Dwyer, the Palm Coast attorney with Chiumento Celis Dwyer, is representing the Gordon family. Four weeks after the shooting—by which time Manfre had taken office—Dwyer made a public record request to the Sheriff’s Office for a series of records related to the shooting, including the reports of all officers involved, not just those who were in the garage at the time of the fatal shooting. The request was honored, with the exception of the reports by the two deputies in the garage.
The Sheriff’s Office, Dwyer contends, never told him that the reports were not filed, or were not available, or had never been written. Rather, month after month, Dwyer filed more requests, only to be told, even by Nowell himself, that they were being searched for.
“The agency complied with lots of requests,” Nowell said in court this morning. “At some point it was determined, it might have been August of that year, that these two documents were not included in the response.” But it was not until March this year that the Sheriff’s Office officially revealed that there were no such reports, when a records custodian took the stand in a court proceeding Dwyer initiated over the records issue.
Since then, Dwyer has taken the Sheriff’s Office to court to recoup $7,000 in attorneys’ fees as a result of the drawn out battle to secure the documents. The sheriff’s position is that Dwyer is not entitled to the fees since all record requests were honored, and he cannot be seeking fees for records that were not turned over, whatever the delay in the Sheriff’s Office’s owning up to the fact that the records did not exist.
Dwyer, who is represented by attorney Ronald Hertel—a fellow-attorney at Chiumento Selis Dwyer—considered that argument invalid, because it grants a government agency the ability to tactically refuse to respond to a public record request month after month (and in this case more than a year) under the guise of a record not existing. That goes against the spirit of the state’s open record law, Hertel argued.
That’s the case that unfolded before Circuit Judge Dennis Craig this morning, with Nowell on one side and Dwyer and Hertel on the other. The Gordon matter, in this case, is peripheral. But the outcome of the case would go to the heart of Florida’s open record law, in a novel way: none of the 64 cases Hertel reviewed on attorney’s fees under Florida’s open record law address this particular matter, where a record does not exist. Presumably, that’s because when lawyers or reporters or members of the public ask for records that don’t exist, the government agency that is required to respond in a reasonable amount of time will reasonably and quickly reveal that there are no such records.
What’s inexplicable, or at least difficult to understand in this case, is why it took the Sheriff’s Office so long to say so—and, along the way, run up the Gordon family’s legal bills, then claim that it’s not responsible for those bills since no records existed.
That raised the matter of “good faith, bad faith,” as Craig put it in today’s hearing—a matter both sides wanted to stay away from. Nowell said there never was any bad faith on the Sheriff’s Office’s part. He himself, he told the court, was convinced the reports existed, and told Dwyer so, and thought it was just a matter of time before they’d be found. When he was proven wrong, he told Dwyer so—apparently before the hearing where the records custodian made the revelation official, but only after Dwyer filed his court case to press for fees.
“There was no evidence presented that the sheriff’s office did not in good faith believe the records to exist and withheld them,” Nowell said, referring to the previous court hearing where the existence and non-existence of the records was addressed. “The records did not exist and upon determining that we informed the plaintiff of their non-existence. Mr. Hertel is right about one case. There is no case that supports his position. There is none.” But Nowell also said: ““I found it hard to believe that officers did omit to file a report after the shooting, and later I was informed that that was a common practice based on PBA reps not to give a statement.”
Craig, the judge, was not comfortable ruling on the matter today, and asked for additional evidence from both sides to determine whether he should rule in accordance with a liberal interpretation of the open record law, with heavy emphasis on the spirit of the law—not just its letter—or whether he should construe the case within the strict wording of the law. Of course, Nowell is seeking a strict constructionist reading. Hertel is looking for a reading in accordance with the spirit of the law.
“I think the spirit of the law is clear,” Hertel argued before Craig. “And the cases, they all repeat the same kind of language about promoting openness and transparency in government. And if the court were to hold that coming to the mandamus hearing [that’s the previous hearing where the non-existence of the documents was revealed] and then saying, guess what, no documents, so it’s moot, too bad for you, after you’ve gone to the trouble of filing petitions, serving petitions, arguing for the petition to get the response you want, and then not to award the attorneys’ fees? The court would be basically condoning the gamesmanship of the sheriff’s office here, in just hiding the ball. That’s the opposite of transparency.”
That’s the statement that prompted Craig to wonder whether Hertel was heading toward an implication of bad faith on the sheriff’s office’s part.
“I’m trying to stay away from that language judge,” Hertel said. “I’m trying to stay away from it.”
“Hiding the ball,” Craig said, implies “some type of intentional behavior, don’t you think?”
Hertel conceded the point (at least for now), a concession that goes to Nowell’s contention: that absent intentional, or bad faith, behavior on the sheriff’s part on those months when the absence of the reports was not revealed, the Sheriff’s Office did nothing wrong, and therefore owes no fees.
The matter of neglect—absent bad faith—was never addressed, leaving open the possibility that a government agency could act under the guise of neglect rather than bad faith—that it could make a mistake and not know where its records are or aren’t—and not have to pay for that mistake, but rather have those seeking to uncover the mistake (in this case, Dwyer and his clients, the Gordon family) pay. That, in part is why Hertel was both skirting the bad faith boundary while hoping to stay away from it.
Conversely, his argument went to the “spirit of the law” because Florida’s sunshine law is to be always construed (by its own wording) in favor of openness, and a presumption of transparency that favors the public, not the government.
Either way, Craig is being cautious, knowing that he may be breaking new ground. He’s asked both sides to return with more evidence later this month, and he hopes to have a ruling soon.
Meanwhile, the larger matter of the Gordon family case against the Sheriff’s Office continues. Today’s hearing included the introduction of a document into the record that revealed that the Gordon family made an offer that would have opened the door to a settlement. The settlement figures were not disclosed. But Nowell did disclose that the Sheriff’s Office did not respond to the offer.
The matter of the Sheriff’s Office’s deputies being allowed not to write reports in the gravest circumstances is not for the court to decide. Nor did either Nowell or Manfre seek to address it today more precisely than Nowell did in court, or than Manfre did in a brief interview at the Sheriff’s Office around noon.
“Deputies don’t give up their civil rights just because they’re wearing a badge,” Manfre, himself an attorney, said.