Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In a case that illustrates the potential complexities of Florida’s open records laws, a former police officer for the Palm Beach County school district has filed suit alleging that school officials violated his civil rights, unjustly defamed his character and prevented him from finding another police job. Jerry Smith alleges in a suit filed last month in Palm Beach Circuit Court that after firing him in December, school officials included false and derogatory information in his personnel file. That information was subsequently disclosed to other prospective employers, one of which cited the information as a basis for not hiring him. Smith, 32, who has since left the county, was fired by the school district following charges that he had inappropriately touched and made suggestive remarks to a female student at William T. Dwyer High School in the city of Palm Beach Gardens, according to police records. Smith’s suit alleges that he was never given an opportunity to rebut his accusers. Yet their charges were subsequently disclosed to employment investigators for the police department of Riviera Beach in Palm Beach County, which as a result turned Smith down for a job in March, according to documents obtained by Smith. His attorney said Smith also was rejected for employment by other police departments because of his school district personnel file. Those police departments were able to access the information about Smith because public school employees’ personnel files are public records under Florida law, and because job termination information about all law enforcement officers in the state is posted online by the Florida Department of Law Enforcement. In addition to the Palm Beach County School Board, named defendants in the suit include the school district’s police chief, James Kelly, and Robert Thomas, a district police officer who testified against Smith to school police investigators. The suit seeks to have Smith’s school system file purged of the harassment allegations and asks for compensatory damages for lost wages and benefits. It also seeks punitive damages against Kelly on the civil rights claim and reserves the right to seek punitive damages against Kelly and Thomas on defamation claims. Government entities cannot be sued for punitive damages. Smith is being represented by Frederick Ford, a West Palm Beach solo practitioner and former senior trial attorney in Washington, D.C., for the U.S. Equal Employment Opportunity Commission. Ford said in an interview that the courts have granted employers broad flexibility on providing employees a hearing on misconduct charges. “But the minimum requirements are notice of the alleged offense and a meaningful opportunity to be heard,” he said. “[Smith] had neither. Nobody would tell him what he was fired for.” School district spokesman Nat Harrington declined to discuss Smith’s suit. He said the district’s personnel guidelines “offer all employees due process in accordance with their employment status.” The civil rights claim is based on U.S. Code Title 42, � 1983, which is an enforcement mechanism for violations of the 14th Amendment’s due process clause and other constitutional rights. Such claims can be brought in state courts as well as federal courts. Smith was hired by the police department of Palm Beach County’s school district in April 2002. He completed the training program on an accelerated basis because he had worked for eight years as a police officer in Riviera Beach. Ford said Smith left the Riviera Beach force to escape working night shifts and because his wife taught in the public school system. Last August, Smith was assigned to Dwyer High School. On Nov. 25, he received a hand-delivered letter from the school district’s personnel department notifying him that he was under investigation, banned from school grounds and suspended with pay. The letter contained no description of any charges against him. In his lawsuit, Smith alleges that school police officials refused to inform him of the nature of the investigation or allegations. He claims he was never contacted by investigators. On Dec. 4, according to the suit, Smith was notified that he was fired as of Dec. 11. No reason was given other than the district’s right — under its collective bargaining agreement with the police union — to terminate officers at will during the 18-month probationary period at the start of their employment. According to Smith’s suit, Police Chief Kelly gave no further explanation for Smith’s termination and never informed Smith of his right to a hearing to contest the charges and clear his name, as provided for in the district’s contract with the police union. Smith alleges he only obtained a copy of the district’s investigative records in late December through a public records request by the police union. He also claims that Kelly failed to respond to his request in April for a hearing. Smith claims he was damaged by the school district when his personnel file was obtained in a background check on his employment application by the Riviera Beach Police Department in March, after he applied there for a job. In a memo to Riviera Beach Police Chief Clarence Williams, obtained by Ford through a public records request, Assistant Chief Clifton Smith wrote: “Based on the facts and circumstances, specifically the criminal investigation on Smith by the School Board police, I recommend not to hire.” Florida law enforcement personnel have limited privacy rights. Under state statute, all law enforcement agencies are required to file affidavits of separation on each fired officer with the Florida Department of Law Enforcement. From that affidavit, the department creates an “officer profile sheet,” which is publicly posted on the Internet. The FDLE affidavit form contains 20 different reasons from which employers can choose to describe reasons for separation. But Smith alleges that his rights were violated because Chief Kelly’s affidavit was false. According to the affidavit, Smith was fired for “failure to satisfactorily complete agency field training program.” Smith, however, completed the training; his probationary supervisor’s reports show no evaluation less than “acceptable.” Ford argues that since Kelly’s Dec. 4 notice of termination to Smith only references the school district’s right to terminate without cause during probation, his affidavit to FDLE should have listed “administrative termination (not involving misconduct)” as the reason Smith was fired. Ford said that Kelly’s FDLE affidavit was a cause of action for defamation — separate from the alleged due process violation — because it was “untruthful.” The police departments to which Smith unsuccessfully applied after being fired by the School Board probably would have discovered the sexual harassment allegations against his client in the course of their employment investigations, Ford said. But the affidavit indicating failure to satisfactorily complete field training would have soured his chances even if those departments had not come across the sex charges. “Either way he gets screwed,” Ford said.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.