House Bill 1799

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    Florida House of Representatives - 2000                HB 1799

        By Representative Patterson






  1                      A bill to be entitled

  2         An act relating to Flagler County; providing a

  3         career services act for Flagler County

  4         deputies; providing for applicability;

  5         providing for status of employees and

  6         administration; creating a Career Service

  7         Appeals Board; providing for membership and

  8         duties; providing procedures and forms for

  9         complaints; providing for promotional testing;

10         providing for notice of opportunity; providing

11         application for promotion; providing for a

12         promotional oral review board; providing for

13         selection; providing for final selection for

14         promotion; providing for a promotional

15         eligibility list; providing minimum

16         requirements; providing that certain employees

17         are permanent employees; providing that certain

18         employees shall be deemed public employees;

19         providing an effective date.

20

21  Be It Enacted by the Legislature of the State of Florida:

22

23         Section 1.  Employees of Flagler County Sheriff;

24  applicability of act; permanent status of employees;

25  administration.--

26         (1)  APPLICABILITY.--The provisions of this act shall

27  apply to all commissioned and noncommissioned persons in the

28  employ of the Office of the Flagler County Sheriff, including

29  deputy sheriffs. The provisions of this act shall not apply to

30  the Sheriff or to special deputy sheriffs appointed pursuant

31  to section 30.09(4), Florida Statutes, members of the

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  1  Sheriff's Posse or Reserve Unit, and individuals appointed as

  2  part-time deputy sheriffs, as defined by the Criminal Justice

  3  Standards and Training Commission, unless any such person is

  4  also employed full time by the Office of the Sheriff. As used

  5  in this act, the terms "employee," "employ," and "employment"

  6  shall refer to all persons, whether employed or appointed, to

  7  whom the act applies. It is the express intent of this act to

  8  grant the right of public employee status to persons in the

  9  employ of the Office of the Flagler County Sheriff who do not

10  otherwise have that right pursuant to law.

11         (2)  PERMANENT STATUS; CAUSE FOR SUSPENSION OR

12  DISMISSAL.--

13         (a)  After an employee of the Sheriff to whom the

14  provisions of this act apply has served in such employment for

15  a period of one (1) calendar year, such employee shall have

16  attained permanent status in the Office of the Sheriff;

17  provided that, if an employee is terminated and rehired at a

18  later date, said employee shall be required to complete 1

19  calendar year of service from the date of the action before

20  being granted the right of appeal provided in Section 2. Any

21  employee who is required to serve a probationary period

22  attendant to a promotion shall retain permanent status in the

23  Office of the Sheriff, but may be demoted to his prior rank

24  during such probationary period without the right of appeal as

25  provided in Section 2.

26         (b)  Any employee who has achieved permanent status in

27  the Office of the Sheriff may only be suspended or dismissed

28  for just cause, provided that prior to such action the

29  employee must be furnished written notice of the proposed

30  action and offered an opportunity to respond to the reasons

31  for the suspension or dismissal. However, in extraordinary

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  1  situations, such as when delay could result in damage or

  2  injury, an employee may be suspended or dismissed for cause

  3  immediately and provided notice thereof and reasons therefor

  4  within 24 hours afterwards. Cause for suspension or dismissal

  5  shall include, but not be limited to, negligence, inefficiency

  6  or inability to perform assigned duties, insubordination,

  7  willful violation of the provisions of law or office rules,

  8  conduct unbecoming a public employee, misconduct, or habitual

  9  drug abuse. Cause for suspension or dismissal shall also

10  include adjudication of guilt by a court of competent

11  jurisdiction, a plea of guilty or of nolo contendere, or a

12  jury verdict of guilty when adjudication of guilt is withheld

13  and the accused is placed on probation, with respect to any

14  felony, misdemeanor, or major traffic infraction. The filing

15  of felony, misdemeanor, or major traffic infraction charges

16  against an employee shall constitute cause for suspension.

17         (3)  TRANSITION OF EMPLOYEES.--When a newly elected or

18  appointed Sheriff assumes office, the new Sheriff shall

19  continue the employment of all currently employed permanent

20  personnel unless cause for dismissal, as provided herein,

21  exists. However, the incoming Sheriff shall have the option of

22  maintaining the current personnel assigned to the positions of

23  Administrative Assistant, Chief Deputy, Legal Advisor, and

24  Director. If the incoming Sheriff fills the above positions

25  with new personnel, the current occupants of those positions,

26  if certified law enforcement officers, shall be reduced to the

27  rank of Captain, which rank shall be permanent unless later

28  reduced by disciplinary demotion, and their salaries may be

29  reduced accordingly. If the incoming Sheriff fills the

30  Administrative Assistant position with a new employee, the

31  current occupant of the position shall be transferred to

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  1  another position for which the employee is qualified within

  2  the Office of the Sheriff. Actions taken pursuant to this

  3  subsection affecting the Chief Deputy, Legal Advisor,

  4  Director, and Administrative Assistant positions shall not be

  5  appealable under Section 2.

  6         (4)  ADMINISTRATION.--The Sheriff shall have the

  7  authority to adopt such rules and regulations as are necessary

  8  for the implementation and administration of this act;

  9  however, nothing in this act shall be construed as affecting

10  the budget-making powers of the Board of County Commissioners

11  of Flagler County.

12         Section 2.  Career Service Appeals Boards; creation;

13  membership; duties.--

14         (1)  FUNCTION OF BOARDS.--Ad hoc Career Service Appeals

15  Boards shall be appointed as provided herein for the purpose

16  of hearing appeals of permanent employees arising from

17  personnel actions brought under office rules or policies which

18  result in dismissal, suspension, demotion, or reduction in

19  pay; provided that reprimands, oral or written, and

20  suspensions of two (2) working days or less shall not be

21  appealable to a Board; provided, however, that no more than

22  one such action of suspension may occur within 1 calendar year

23  without the right to appeal. Any such Board may also provide

24  assistance and advice to the Sheriff in matters concerning the

25  disciplinary actions, and may take any other action authorized

26  by the Sheriff.

27         (2)  MEMBERSHIP OF BOARDS.--When needed upon the call

28  of the Sheriff, or upon the filing of an appeal, an ad hoc

29  Career Service Appeals Board shall be appointed. The

30  membership of each such Board shall consist of five law

31  enforcement officers who are assigned within Flagler County.

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  1  Two members shall be selected by the Sheriff, two members

  2  shall be selected by the employee filing the appeal, and the

  3  fifth member, who shall serve as Chair of the Board, shall be

  4  selected by the four members, with the concurrence of the

  5  Sheriff and the employee requesting the hearing. The ranking

  6  officer in charge of personnel shall serve as an ex officio

  7  member of the Board, but shall have no vote. Any person shall

  8  have the right to decline to serve as a member of a Board, and

  9  persons selected to serve on a Board shall serve without

10  additional compensation or overtime compensation with respect

11  to such service; however, such service shall be considered to

12  be a regular work day for those persons serving. Once selected

13  to a Board, the members thereof shall serve until final action

14  is taken by the Board with respect to the purpose for which

15  the Board was selected, at which time the Board shall be

16  dissolved.

17         (3)  PROCEDURE WITH RESPECT TO APPEALS.--

18         (a)  An appeal of an action specified in subsection (1)

19  shall be made to the Sheriff in writing, and must be received

20  by the Sheriff no later than 15 working days after the

21  employee is notified of the action on which the appeal is

22  based.

23         (b)  A Career Service Appeals Board shall be selected

24  and must meet for purposes of hearing the appeal no later than

25  30 working days after receipt of an appeal by the Sheriff.

26         (c)  During any hearing, the employee filing the appeal

27  shall have the right to be heard publicly, to be represented

28  by a person of his or her choice, and to present any

29  evidential facts in his or her behalf, and during such

30  hearings the technical rules of evidence shall not apply. The

31  Board shall, in the conduct of such hearings, have the power

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  1  to administer oaths, issue subpoenas, compel the attendance of

  2  witnesses, and require the production of books, records,

  3  accounts, papers, documents, and testimony. In case of refusal

  4  of any person to comply with an order of the Board or a

  5  subpoena issued by the Board, or upon the refusal of a witness

  6  to testify on any matter regarding which that witness may be

  7  lawfully interrogated, a County Judge of the county in which

  8  the person refusing to comply or testify resides, upon the

  9  application of a member of the Board, shall compel obedience

10  by proceeding as for contempt. Each witness who appears in

11  obedience to a subpoena before the Board shall receive

12  compensation for attendance fees and mileage as provided for

13  witnesses in civil cases in the courts of this state. Such

14  payment shall be made by the party calling the witness; except

15  that, with respect to any witnesses called by the Board,

16  payments shall be made by the Sheriff upon presentation of

17  proper vouchers and approval by three members of the Board.

18         (d)  A Board shall by majority vote dispose of the

19  appeal for which it was appointed by making findings of fact

20  and issuing a written decision. Such decision shall either

21  sustain or not sustain the action being appealed. If an action

22  by the Sheriff is not sustained by a Board, the Board shall

23  order such remedial action as is appropriate, which may

24  include reinstatement with back pay, and may modify any

25  personnel action which was the subject of the appeal. No Board

26  shall have the authority to impose on any employee any penalty

27  which is more severe than that which formed the basis of the

28  appeal.

29         (e)  The decision of the Board shall be final and

30  binding on the employee and the Sheriff, however, this shall

31  not limit or circumvent the right of the Sheriff or

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  1  sheriff-appointee to further proceedings in a court of

  2  competent jurisdiction.

  3         Section 3.  Complaints.--

  4         (1)  PURPOSE.--To provide a systematic, objective, and

  5  impartial method of investigating complaints of alleged

  6  inappropriate behavior by any personnel of the Flagler County

  7  Sheriff's Office.

  8         (2)  POLICY.--The Flagler County Sheriff's Office will

  9  respond to all complaints concerning any employee's behavior

10  and/or performance, and will conduct a thorough investigation

11  of all allegations.

12         (3)  DEFINITIONS.--For the purpose of this policy,

13  "complaint" shall be defined as any expression of

14  dissatisfaction or any allegation of conduct that is:

15         (a)  Unconstitutional;

16         (b)  Unlawful; or

17         (c)  A violation of policy/procedure.

18         (4)  PROCEDURE.--

19

20  Complaints

21         All complaints will be placed into one of three

22  categories: administrative, criminal, or possible criminal.

23         Administrative complaints will follow the chain of

24  command, when possible, starting with the immediate

25  supervisor. At the discretion of the Sheriff, an internal

26  investigation may be conducted.

27         Criminal complaints will be forwarded to the Division

28  Commander immediately. The Chief Deputy and the Sheriff will

29  be advised and an investigator will be assigned. This will be

30  an internal investigation.

31

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  1         Possible criminal complaints will be forwarded to the

  2  Division Commander immediately. The Division Commander will

  3  determine if the complaint will be investigated as a

  4  administrative or criminal complaint.

  5         Receiving Complaints

  6         Supervisors receiving or otherwise having knowledge of

  7  a complaint will conduct the initial investigation, and will

  8  obtain and document all available and related information

  9  about the allegations. He or she will notify the Division

10  Commander immediately if such allegations amount to criminal

11  conduct. The complaint form will be completed on all

12  complaints.

13

14  Harassment of Complainants

15         No deputy or other employee will ignore, harass,

16  verbally abuse, belittle, or threaten any citizen or employee

17  who files a complaint against a deputy or employee of the

18  Flagler County Sheriff's Office.

19

20  Duty Status of Deputy/Employee

21         At the discretion of the Sheriff, deputies or employees

22  may be relieved of active duty status (with or without pay)

23  pending the outcome of the investigation.

24

25  Duty to Reply/Cooperate

26         Deputies and employees of the Flagler County Sheriff's

27  Office will answer fully all questions which a supervisor may

28  ask regarding performance of official duties and will

29  cooperate with any internal investigation. Before an interview

30  with a deputy or employee is conducted, the "Garrity Rule"

31

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  1  will be read to the deputy/employee. The deputy/employee will

  2  sign the sheet containing the "Garrity Rule" that was read.

  3

  4                           GARRITY RULE

  5  I wish to advise you that you are being questioned as part of

  6  an official investigation of the Sheriff's Office. You will be

  7  asked questions specifically directed and narrowly related to

  8  the performance of your official duties or fitness for office.

  9  You are entitled to all rights and privileges guaranteed by

10  the laws and Constitution of this State and the Constitution

11  of the United States, including the right not to be compelled

12  to incriminate yourself. I further wish to advise you that if

13  you refuse to testify or to answer questions relating to the

14  performance of your official duties or fitness for duty, you

15  will be subject to Sheriff's Office charges which could result

16  in your dismissal from the Sheriff's Office. If you do answer,

17  neither your statements nor any information or evidence which

18  is gained by reason of such statements can be used against you

19  in any subsequent criminal proceeding. However, these

20  statements may be used against you in relation to subsequent

21  Sheriff's Office charges.

22  NOTE: No employee can be disciplined for refusal (on fifth

23  amendment rules) to make a statement or prepare a report

24  unless he or she has been given the Garrity Admonition. An

25  employee can be disciplined for refusal (without Garrity)

26  unless it was reasonable to believe the statement would

27  implicate the employee in a violation of the law.

28  BASED ON GARRITY VS NEW JERSEY 1967 AND GARDNER VS BRODERICK

29  1968

30

31  Complaints of Criminal Activity

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  1         Complaints against deputies/employees of the Flagler

  2  County Sheriff's Office which involve facts to support

  3  criminal conduct will be grounds for criminal charges. This

  4  action will not serve to prevent the internal investigative

  5  process from dealing with the same matters.

  6

  7  Initial Complaint Non-Criminal

  8         Upon learning or receiving a complaint of inappropriate

  9  behavior, the deputy or employee receiving such information

10  shall immediately direct the complaints to the on-duty shift

11  supervisor or the supervisor of the employee involved in the

12  complaint. Supervisors receiving or otherwise having knowledge

13  of a complaint will conduct the initial investigation, follow

14  through as much as practical, and obtain and document all

15  available and related information about the allegations. The

16  supervisor should make every attempt to resolve the complaint

17  if unable to do so, the chain of command will be followed. Any

18  complaints received through communications or at the reception

19  desk will be directed to the on-duty supervisor whenever

20  possible. All complaints received will be forwarded to the

21  Division Commander whether resolved or not. The complaint form

22  will be completed on all complaints.

23

24  Confidentiality

25         Section 112.533(3), Florida Statutes, states that any

26  person who is a participant in an internal investigation

27  including the complainant, the subject of the investigation,

28  the investigator conducting the investigation, and any

29  witnesses in the investigation, who willfully discloses any

30  information obtained pursuant to the agency's investigation,

31  including, but not limited, to the identity of the employee

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  1  under investigation, the nature of the questions asked,

  2  information revealed or documents furnished in connection with

  3  a confidential internal investigation of an agency, before

  4  such complaint, document, action, or proceeding becomes a

  5  public record, as provided in the section is guilty of a

  6  misdemeanor of the first degree, punishable as provided in

  7  section 775.082, Florida Statutes.

  8         The investigator, which includes the person receiving

  9  the initial complaint, will ensure confidentiality of the

10  investigation until the final disposition has been made.

11         1.  Supervisors/Investigators will not leave reports,

12  notes, or related documents where they would be accessible to

13  unauthorized persons.

14         2.  No portion of the internal investigation reports

15  shall be copied or reproduced in any manner without

16  authorization of the Sheriff.

17

18  Internal Investigations

19         When an internal investigation has been initiated, the

20  employees under investigation shall be notified, in writing,

21  of the allegations and the names of the complainants. This

22  will be on the employee notification form, complaint received.

23         1.  In cases where advance notice would jeopardize the

24  investigation, said notification may be given just prior to

25  the interview of the employees under investigation.

26         2.  The subject employee may review the complaint and

27  all written statements made by the complainant and witnesses

28  prior to the beginning of the investigative interview.

29         At the time an internal investigation is initiated, a

30  complainant notification form will be completed and given or

31  mailed to the complainants.

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  1         The internal investigation checklist will be

  2  maintained, and appropriate entries made until the

  3  investigation is completed. The internal investigation shall

  4  be completed within 45 days, unless an extension is granted by

  5  the Sheriff because of extenuating circumstances. Upon

  6  completion of any internal investigation, a copy of the entire

  7  report shall be forwarded to the Sheriff for review, as listed

  8  below.

  9

10  Final Disposition

11         The Chief Deputy shall submit to the Sheriff a written

12  summary of the internal investigation and include one of the

13  following recommendations:

14         1.  SUSTAINED.--The investigation disclosed sufficient

15  evidence to prove the allegations made in the complaint. The

16  Chief Deputy's summary will reflect all violations of

17  Sheriff's Office Policy and Procedures, as well as all

18  violations of local, state, and federal laws.

19         2.  NOT SUSTAINED.--The investigation did not disclose

20  sufficient evidence to prove the allegations made in the

21  complaint. If the case is not sustained, the Chief Deputy's

22  summary will reflect one of the following:

23         a.  NOT INVOLVED.--The investigation disclosed that the

24  named employee was not involved.

25         b.  EXONERATED.--That acts which provided the basis for

26  the complaint or allegation occurred, however, investigation

27  revealed they were justified, lawful, and within accepted

28  policy and procedure.

29         c.  FALSE.--The allegation is false; the alleged

30  incident never took place.

31

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  1         d.  MISCONDUCT NOT BASED ON ORIGINAL COMPLAINT,

  2  SUSTAINED.--New substantiated misconduct not mentioned in the

  3  initial allegation was disclosed by the investigation and is

  4  sustained.

  5

  6  Upon conclusion of the investigation and final disposition

  7  rendered, the affected employee will be given a memo informing

  8  him or her of the disposition of the case.

  9         The complainants will receive a form letter advising of

10  the final disposition of the case, in addition to a telephone

11  notification, if appropriate.

12

13  CJSTC-78 FORM

14         Use the CJSTC-78 Form to report any sustained

15  allegations of non-compliance with section 943.13(4) or (7),

16  Florida Statutes, which does not result in the termination of

17  the deputy. The form must be submitted within 45 days of the

18  date the allegation has been sustained. Refer to the back side

19  of the CJSTC-78 Form for additional information and

20  instructions.

21         Section 4.  Promotional testing.--Promotional

22  eligibility tests will be held as needed.

23         (1)  Notice of this test will be distributed throughout

24  all divisions of the department by bulletin board a minimum of

25  30 days in advance of the date of the test.

26         (2)  Each member/appointee wishing to take the test

27  must apply to his or her division director through the chain

28  of command and must have been with this agency in a full-time

29  capacity for a minimum of 2 years.

30         (3)  Each member/appointee who has applied to go before

31  an oral review board will be required to have taken a written

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  1  examination and met the minimum passing score of 75 percent to

  2  be eligible for an interview.

  3         (4)  Promotional examinations shall be given on an as

  4  needed basis and the passing of such examination shall be

  5  valid for a period of 2 years.

  6         Section 5.  Notice of opportunity.--Whenever an

  7  opportunity for promotion is available within the Sheriff's

  8  office, a notice to all members will be published by the

  9  Sheriff's office.

10         (1)  This notice will be distributed throughout all

11  divisions of the agency by bulletin board a minimum of 15 days

12  in advance of the date of the oral review board.

13         (2)  The responsibility of the publication and posting

14  of said notice shall be initiated by the Sheriff to the

15  director of the division in which the vacancy occurs.

16         Section 6.  Applications for promotion.--Upon posting

17  of a notice of opportunity, each member requesting

18  consideration must apply by memorandum through the chain of

19  command to the director of the division of which he or she is

20  a member/appointee.

21         (1)  The division director of the applicant will either

22  approve or disapprove the application based on the

23  member/appointee's eligibility as specified in this act.

24         (2)  If the vacancy is in a division other than that of

25  the applying member/appointee and the application is approved,

26  the division director will submit the application to the

27  director of the division in which the vacancy occurs.

28         Section 7.  Promotional oral review board.--All

29  eligible members/appointees applying for the position shall

30  have the right to attend an oral review board on the date and

31  at the time selected by the board.

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  1         (1)  The oral review board shall have access to each

  2  applicant's personnel file.

  3         (2)  The oral review board shall make a written

  4  recommendation to the Sheriff of the top three applicants,

  5  chosen by majority vote of the board, within 3 calendar days

  6  after the interviews.

  7         (3)  The list will be in alphabetical order and signed

  8  by all five board members.

  9         Section 8.  Oral review board membership

10  selection.--Each oral review board shall be comprised of five

11  members as follows:

12         (1)  SERGEANT'S PROMOTIONAL BOARD.--

13         (a)  One Lieutenant selected by the Sheriff from the

14  division in which the vacancy occurs.

15         (b)  One Sergeant from any other division selected by

16  the majority organization of agency members/appointees such as

17  the Fraternal Order of Police or the Police Benevolent

18  Association. It shall be the responsibility of the

19  representative organization to provide the Sheriff with

20  documentary proof of such majority.

21         (c)  These two members will select a nonranking

22  member/appointee from the division in which the vacancy

23  occurs.

24         (d)  These three members will select a member/appointee

25  from any rank from any division.

26         (e)  These four members will select an individual from

27  a list of qualified persons furnished by the Sheriff.

28         (f)  The board chair is to be elected by a majority

29  vote of the board members. All board members will have equal

30  vote in all actions of the board.

31         (2)  LIEUTENANT'S PROMOTIONAL BOARD.--

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  1         (a)  One Captain to be selected by the Sheriff.

  2         (b)  One Lieutenant to be selected from any other

  3  division by the majority organization of the department.

  4         (c)  These two members will select a Sergeant from the

  5  division in which the vacancy occurs.

  6         (d)  These three members will select a member/appointee

  7  from any rank from any division.

  8         (e)  These four members will select an individual from

  9  a list of qualified persons furnished by the Sheriff.

10         (3)  All new ranks shall attend an oral review board as

11  outlined in this act, with proper rank selections determined

12  in the same manner as for Sergeant or Lieutenant.

13         Section 9.  Final selection for promotion.--The final

14  selection for the promotion will be made by the Sheriff from

15  the top three applicants recommended by the oral review board.

16         Section 10.  Promotional eligibility list.--

17         (1)  Individuals who have passed the written portion of

18  the examination will remain on the promotional eligibility

19  list for a period of 2 years. During this time, they will not

20  be required to pass another written examination.

21         (2)  Individuals who have been placed on the "top

22  three" list by an oral review board, but not selected for

23  promotion, will remain eligible for similar promotion for a

24  period of 3 months.

25         Section 11.  Minimum requirements for

26  promotion.--Minimum requirements for ranks currently

27  established in accordance with the Career Service Act are as

28  follows:

29         (1)  To be eligible for promotion to the rank of

30  Sergeant, an applicant:

31

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  1         (a)  Shall be certified by minimum state law

  2  requirements, if applicable, in the field in which the vacancy

  3  occurs.

  4         (b)  Shall meet departmental guidelines for specialized

  5  functions.

  6         (c)  Shall have completed a minimum 3 years' service

  7  with the Sheriff's office prior to filing application for

  8  promotion.

  9         (d)  In the event there are less than three eligible

10  persons for the rank of Sergeant, persons with 2 years'

11  service to the department may apply.

12         (e)  If the position is certified, the applicant shall

13  have met qualification standards on the firearms range within

14  the previous 12 months.

15         (2)  To be eligible for promotion to the rank of

16  Lieutenant, an applicant:

17         (a)  Shall have held the minimum rank of Sergeant for

18  12 months after probation.

19         (b)  Shall be certified by minimum state law

20  requirements, if applicable, in the field in which the vacancy

21  occurs and shall meet agency guidelines for specialized

22  functions.

23         (c)  If the position is certified, the applicant must

24  have met qualification standards on the firearms range within

25  the previous 12 months.

26         (d)  In the event an insufficient number of eligible

27  persons meet the guidelines set forth in paragraphs (a)-(c),

28  the applications may be opened up to next lower rank

29  requirements.

30         Section 12.  All commissioned and noncommissioned

31  persons in the employ of the Office of the Sheriff of Flagler

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CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2000                HB 1799

    719-113-00






  1  County on the effective date of this act who have served for a

  2  period of 1 calendar year or more as of such date shall be

  3  permanent employees subject to the provisions of this act. All

  4  other employees shall become permanent employees subject to

  5  the provisions of this act upon reaching their 1-calendar-year

  6  service anniversary date.

  7         Section 13.  All full-time deputy sheriffs employed by

  8  Flagler County shall be deemed public employees and shall

  9  enjoy all rights granted public employees by law, including

10  the protection granted public employees by law, including the

11  protection afforded by part VII of chapter 112, Florida

12  Statutes.

13         Section 14.  This act shall take effect upon becoming a

14  law.

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