Robert Finn, the Flagler County sheriff’s deputy fired a year ago for failing to take action regarding a car going down the wrong way on an I-95 ramp moments before the car crashed and its occupant was killed, was ordered reinstated by an independent arbitrator. But Finn will not get back a year of lost wages and benefits.
The arbitrator’s decision reveals confusion within the sheriff’s office regarding the agency’s pursuit policy, though it’s less clear to what role the confusion played in the deputy’s lack of response, as the deputy also failed to take other required actions–or to hear key dispatch updates–that did not involve a pursuit.
Early the morning of April 16, 2018, Wendell Parker, a 32-year-old resident of Miami Gardens, took a wrong turn and ended up driving north on I-95’s southbound lanes near Palm Coast Parkway, from where he wrongfully merged. Moments later he crashed head-on into the car Cynthia Soto was driving south. The 35-year-old Flagler Beach woman was critically injured.
Finn was on duty that morning. Just after 2 a.m.–minutes before the fatal crash–he was dispatched to a medical call in Palm Coast’s C-Section, requiring him to take I-95 to Palm Coast Parkway. As he exited the highway, his lights and sirens on, he had to swerve to avoid a collision with a car heading down the exit ramp, going the wrong way. The car was Parker’s.
Finn could have stopped him. He did not do so. He kept driving to the medical call, where he discovered that the situation had been resolved by the time he got there. In fact, a call had come over the radio at 2:11 a.m. saying the medical issue had been cleared, when Finn was just exiting the highway. Finn would tell investigators he did not hear that call over the sound of his siren.
By then, Parker was dead. Finn got a dispatch call at 2:13 informing him of a two-vehicle collision on I-95, just north of the Parkway exit. Finn responded, getting there at 2:20 a.m., where he assisted in the crash response and, after shutting off his body camera, spoke to a sheriff’s commander, telling him of his earlier encounter with the car going the wrong way down the ramp.
The sheriff’s office reassigned Finn to the 911 dispatch center as it conducted an internal affairs investigation into his performance that morning. The final report found unsatisfactory and incompetent performance, with disciplinary action including a range of measures up to and including termination. He was seemingly fired on July 9, 2018: that was the day the sheriff’s office issued a release to media announcing the firing.
In fact, he wasn’t, quite yet: he was to be paid through July 23. He was fired on July 24, when the undersheriff sent him a memo, ratifying what had been his planned firing.
Finn, a member of the Coastal Florida Police Benevolent Association, the police union, filed a protest, as is his right under the union contract, and the matter went to arbitration before Arbitrator Peter Prosper. Prosper held a quasi-judicial hearing at the Flagler County courthouse last March to examine whether the sheriff’s office had just cause to fire Finn.
On Monday, Prosper issued a 17-page ruling finding that it did not.
Prosper did so despite the sheriff’s office’s contention that Finn “intentionally disregarded his most basic obligation as a law enforcement officer to take appropriate action on the occasion of a crime or other condition requiring police action,” according to the formal position the agency took at the hearing. “Deputy Robert Finn saw a vehicle drive the wrong way onto a highway and did nothing – he made no attempt to apprehend the driver despite clear probable cause, he made no real attempt to stop the vehicle from driving the wrong way on the highway, and he did not even call it out over the radio. Instead, he continued responding as a backup to a medical call.
Finn, according to the arbitration report, had claimed to sheriff’s officials that “when he got to the top of the ramp, he thought he saw the vehicle correct itself and turn right on the highway with the flow of traffic. The [sheriff’s office] argues that Finn’s testimony is not credible and that reality is that he continued to go down the ramp and on to Route 95.” The sheriff’s office’s position was that “Finn could have driven straight across Palm Coast Parkway and re-enter the highway going north to try to pull over the car. The Employer emphasized that Deputy Finn did not take the most basic police action that he could have taken, that is, call it out.”
The union’s position was that procedurally, the sheriff’s office violated Finn’s due process rights by failing to provide him a so-called Loudermill hearing before he was fired. The hearing was held on July 20, or 11 days after the agency announced Finn’s firing in the release to the press. The release had noted that Finn had 10 days “to appeal his disciplinary termination,” but did not go into the details of the required hearing.
To the union, Finn had not been afforded the opportunity to tell his side through such a hearing, a “blatant violation of due process,” according to the union’s position as reflected in the arbitrator’s report. But Prosper rejected that argument.
“Regarding the issue of whether Deputy Finn’s actions or inactions were deserving of termination,” the union’s position goes on, “the Union characterized several factors that it said would show that Deputy Finn was not guilty of the charge.” Among those, that Finn did think Parker’s vehicle made the corrective turn at the end of the ramp, that general agency orders forbid deputies from pursuing anyone by going the wrong way down a divided highway, and that had he asked permission to do so he’d have been told not to.
There is a sharp and potentially consequential conflict in how the rule is being interpreted, according to the arbitrator’s report: “Commander [Chris] Sepe, on the other hand, (the Internal Affairs investigator) testified that protocols forbidding pursuit of a vehicle going the wrong way down a divided highway were only guidelines, not mandatory rules to be followed. The Undersheriff testified for the Employer that the general orders were not guidelines, but were in fact rules that must be obeyed. The Union argues that Deputy Finn cannot be held violative of a rule or regulation that senior personnel cannot agree on its application.” Sepe is now a chief. The undersheriff was Jack Bisland, who has since retired.
Even if Finn had crossed the Parkway to get back onto I-95 and driven the right way to catch up with Parker, I-95 is divided by guardrails “and there was no way that Deputy Finn could have crossed the median as alleged,” the union states, while a Florida Highway Patrol traffic homicide investigator “testified that there was nothing that Deputy Finn could have done to stop the vehicle and prevent the crash.” The union also considered Finn’s firing disproportionate in light of his seven years of service, his lack of disciplinary issues and his many commendations.
Prosper could not fault Finn for not chasing after the car going the wrong way, both because of written regulations and obvious safety issues. “The wisdom of attempting to intercept a vehicle in that manner is dubious,” he wrote. But he didn’t buy Finn’s argument that he had followed the right procedures after seeing the car go the wrong way. “There is no indication by Deputy Finn that he had established with certainty that the driver had turned around,” Prosper found. “Not being sure if he was correct, it was incumbent on Deputy Finn to alert his dispatcher, or attempt to follow the vehicle going the wrong way rather than continuing south on the highway. Deputy Finn erred in not contacting his dispatcher.”
Prosper sought to place some distance between Finn’s actions and his responsibility for the death of Wendell Parker, but by no means an absolving distance: “The accident that occurred was very serious, one in which an innocent person was very seriously injured. The proximate cause of the accident was the fact that an individual was driving his car north on a southbound highway. There is no way to determine if the actions or non-actions by Deputy Finn had any direct influence on the accident. The totality of the information presented does not indicate that conclusion. Nonetheless, Deputy Finn erred several times and disobeyed rules and regulations of Flagler Sheriffs Office for which he remains responsible and accountable.”
The union asked for his reinstatement and that he be reimbursed his year of lost wages and benefit. Prosper agreed with his reinstatement, but “without pay and benefits” for what amounts to exactly a year.
“Although we disagree with the decision of the arbitrator,” the Sheriff’s Mark Strobridge is quoted as saying in a release the agency issued Wednesday, ” the discipline he imposed is still substantial and we will abide by that decision as it is a collective bargaining agreement requirement and we believe in the process of law.” The release states that Finn will return to work as a deputy in the Community Policing Division. “He will receive additional training to aid in his performance. He will be expected to perform his duties up to the standards of an FCSO Deputy Sheriff,” the release states.