MEMORANDUM TO: Doug Thomas, City Manager FROM: Erin Webb, HR Manager, Policy Labor Relations Rosilyn Dickerson, HR Specialist, Policy Labor Relations RE: Investigation of Allegations Asserted by Sue Eberle Implicating City of Lakeland General Employees DATE: August 14, 2013 INVESTIGATION BACKGROUND As you are aware, on or about May 2, 2013, the City Manager's Office made the determination that the Lakeland Police Department Office of Professional Standards would continue to take the lead on investigations involving all LPD sworn and civilian employees including any Lakeland Fire Department employees that may be subject to Police and/or Firefighter Bill of Rights, but all other general employees would be reviewed by specially assigned investigators from the Human Resources Department. Current LPD employee, Debra Sue Eberle, alleged in her March 21, 2013 LPD due process hearing and subsequent investigation that eleven (11) current and former City of Lakeland general employees had engaged in conduct of a sexual nature with her dating back to 1993 when she was a BCE (Business Cooperative Education) high school student, up through approximately 2005. INVESTIGATION DIRECTIVE In a May 2, 2013 meeting with the City Manager's Office, we were instructed to take the next several weeks to clear our calendars and wrap up our pending work assignments. We were further directed to conduct a fact-finding investigation into the allegations involving the five (5) current, active general employees only, as the COL could not compel former employees to submit to an interview or discipline them and their absence from the workplace ensured that Ms. Eberle was protected from any potential harassment and/or retaliation by them.' The other six (6) individuals either resigned or separated from the COL in earlier years for reasons unrelated to the current allegations by Ms. Eberle. On or about May 20, 2013, as directed by the City Manager?s Office, we met with the OPS staff handling the investigation into the LPD and LFD personnel identified by Ms. Eberle as having engaged in inappropriate conduct with her. On or about June 6, 2013, the OPS staff informed us of the nature of Ms. Eberle's allegations involving the COL general employees. 1 We later learned from the State Attorney's Office investigation that another COL general employee, Jose Diez, was implicated by Ms. Eberle as well. Page 1 of 9 Thereafter, we were instructed by the City Manager?s Office to review the transcriptions of OPS's interviews of Ms. Eberle, which were altered to redact all information regarding LPD and LFD personnel identified by her. We relied upon the approximately ll hours of sworn testimony Ms. Eberle provided in OPS's interviews of her. (She was interviewed by OPS nine (9) times over five (5) days for a total of more than 10 hours.) After examining these transcripts, we met with the current, active general employees identified by Ms. Eberle. We later reviewed the transcripts of Ms. Eberle and two other COL employees (Jose Diez and Tiffany Dwyer) from their sworn interviews with the State Attorney's Office as directed by the City Manager's Office. EMPLOYMENT BACKGROUND OF DEBRA SUE EBERLE Debra Sue Eberle first worked at the COL as a BCE student. Her duties involved administrative or clerical work and her supervisor was Margaret Heacox. She then became employed by the COL on October 23, 2000 as a Clerk Typist II in the Risk Management Department in the Civil Service Building and her supervisor was Mabel Edwards. (Ms. Edwards resigned her employment in earlier years and, therefore, was not interviewed in this investigation.) On December 31, 2000, she was promoted to Risk Management Associate I in the Risk Management Department and her supervisor remained Mabel Edwards. Thereafter, her position changed to Office Associate 11 within the Risk Management Department, but her supervisor remained Mabel Edwards. On June 16, 2002, Ms. Eberle's Department changed from Risk Management to Health/Benefits, but her job title and supervisor remained the same. On July 13, 2003, her supervisor became Bryan Riley (the then Health Benefits Coordinator), but her position and Department stayed the same. On January 23, 2005, she was transferred due to a promotion to a Crime Analyst position at LPD, a position she holds to this date. Records indicate her supervisor in this position has always been Police Sergeant, Terri Smith. INITIAL INTERVIEWS OF IMPLICATED GENERAL EMPLOYEES On June 21 and 24, 2013, we interviewed four (4) of the five (5) general employees implicated by Ms. Eberle in her interview with LPD's OPS staff. They each adamantly denied Ms. Eberle's allegations: Bryan Fluke: Mr. Fluke first became employed by the COL on January 18, 1988. At the time of the allegations made against him (approximately 1994), he was employed as a Storekeeper at the Warehouse located at the Larson Power Plant. He did not supervise any employees, including Ms. Eberle. Ms. Eberle alleges that she and Mr. Fluke had a "consensual relationship," that "he would be the only one that I think that there might have even been a relationship with, 'cause I always looked up to him when I was at the power plant." She followed-up, "And then we had a relationship for awhile." She further stated, . .what happened is he got a divorce, um, when I was at the power -- or when I was at Risk Management, and that's when I - I stopped, 'cause I was like, I didn't want -- I didn't want, you know, I didn't want to just forego what I had. I didn't want my -- I didn't want my children to A to go through any of the heartbreaks that I did." She was then Page 2 of 9 asked if she ended the relationship and responded, "We've talked, you know, he'll send me birthday cards. We maybe have one downstairs now, I don't know." In his interview, when he was asked whether he ever had a sexual relationship with Ms. Eberle, Mr. Fluke responded "No" and stated that he had a close relationship with her like "best friends." He said that everyone out at the Power Plant "was real close." He stated that Ms. Eberle would say things to him like she wanted him to be her "knight in shining armor" and to "take me away." Mr. Fluke believed that he was still married around this time and that it "whatn't gon' happen" with Ms. Eberle. em; Doss: Mr. Doss first became employed by the COL on October 8, 1980. At the time of the allegations made against him (approximately 1993 to possibly 2005), he was employed as a Control Center Operator at the Larson Power Plant. He did not supervise Ms. Eberle. Ms. Eberle alleges that when she worked at the Larson Power Plant, Mr. Doss touched her on her butt, would go under her clothes and may have touched her vaginal area in his office while they were both on duty. When Ms. Eberle worked in either Risk Management or LPD, she alleges that one night she stopped by Mr. Doss' house, he un-robed her, took a video of her and placed his fingers in the opening of her vagina so he could "get better looks." She also alleges that he took pictures of her "as a 17-year old girl." Mr. Doss categorically denied all of Ms. Eberle's allegations and that he ever had any sexual contact with her. With regard to her allegation that he touched her vagina] area in the control room of the Power Plant, he stated that such an act was impossible since employees are always coming in and out of that office. Because some of conduct of which Mr. Doss has been accused may have occurred when Ms. Eberle may have been a minor, we contacted LPD and tasked them with determining whether a crime may have been committed and, if so, whether it was still actionable. LPD confirmed that at the time of their interview of Ms. Eberle they reviewed all of her allegations and determined that with respect to those made against Mr. Doss the statute of limitations had expired. Shawn Maguire: Mr. Maguire first became employed by the COL on October 17, 1988. At the time of the allegations made against him (approximately 1993 -- 1994), he was employed as a Painter at the Larson Power Plant. He did not supervise Ms. Eberle. Ms. Eberle alleges that when she was working at the Larson Power Plant, she went to Mr. Maguire's office for something and he closed the door, pulled down his pants, and said, "We can do it right here." According to Ms. Eberle, Mr. Maguire had a contractor block the office door, preventing her from exiting. She did not report the incident. Mr. Maguire did not even remember who Ms. Eberle was when questioned. He vehemently denied Ms. Eberle's allegations and informed us that he was likely physically incapable of even doing what Ms. Eberle accused him of given that around that time he was still recovering from a work--related incident. Mr. Maguire was hit by a speeding vehicle while crossing the street from the COL's employee parking lot to his workplace and he said he sustained injuries so serious that he was in a full body cast, was absent from work for months recovering, and even after he Page 3 of 9 returned to work he was incapacitated for a long period of time and had to use physical aids to get around. We pulled Mr. Maguire's worker's compensation records and confirmed that he was seriously injured from a vehicle accident in 1992 and that his recovery was Because the conduct of which Mr. Maguire has been accused may have occurred when Ms. Eberle may have been a minor, we contacted LPD and tasked them with determining whether a crime may have been committed and, if so, whether it was still actionable. LPD confirmed that at the time of their interview of Ms. Eberle they reviewed all of her allegations and determined that with respect to those made against Mr. Maguire the statute of limitations had expired. Dennis Herbert: Mr. Herbert first became employed by the COL on July 2, 2001. At the time of the allegations made against him (approximately 2000 -- 2005), he was employed as a Safety Officer and was assigned to work at the Larson Power Plant. He did not supervise Ms. Eberle. However his mailbox was located in the Risk Management office where Ms. Eberle was then employed. Ms. Eberle alleges that sometime between 2000 and 2005, she believes Mr. Herbert wanted to be more than co--workers and have some kind of relationship with her. However, she admits that they did not have any type of sexual contact and that there was no touching, pictures, emails, or texts with him. Mr. Herbert stated that he had no sexual contact with Ms. Eberle and denied all of her allegations. He claimed that he saw Ms. Eberle when he went over to the Risk Management Department to pick up his mail each week and do other related work. He stated that he knows Ms. Eberle's husband and would engage in conversation with her about her sons. Gary Gonyer: The fifth employee identified by Ms. Eberle, Gary Gonyer, refused to meet with us without a Utility Workers Union of America representative present even though we made it clear that this interview was solely part of a fact--finding investigation and not a disciplinary meeting and we had no authority to discipline him. Because Mr. Gonyer refused to attend the meeting without a union representative, the City Manager's Office instructed us not to meet with Mr. Gonyer at this point in time. On June 27, 2013, a meeting was held with the City Manager's Office regarding our findings in the initial interviews referenced above. SECOND ROUND OF INTERVIEWS OF IMPLICATED GENERAL EMPLOYEES Because the allegations involving the five (5) general employees were so dated (1993 to approximately 2005) and four (4) of the five (5) original employees implicated by Ms. Eberle denied her allegations, in a follow-up meeting with the City Manager's Office on July 3, 2013, it was agreed that we would interview each of the general employees a second time. The primary purpose of these second interviews was to obtain the names of their co--workers and supervisors employed by the COL at the time of the alleged misconduct for purposes of substantiating Ms. Eberle's allegations that may have violated City policy, as it would be nearly impossible to determine who worked with the implicated employees so many years ago through any other means. We also subsequently learned on June 25, 2013 from the State Attorney's Office investigation that a sixth general employee, Jose Diez who is employed in the COL's Page 4 of9 Department of Information Technology had been implicated by Ms. Eberle. Ms. Eberle gave sworn testimony that Mr. Diez engaged in inappropriate conduct with her and two other COL employees, Tiffany Dwyer and Wendy Wilcox. Between July 15 - 18, 2013, we met again with four (4) of the original five (5) general employees identified by Ms. Eberle to obtain from them the names of their co--workers and supervisors who were employed by the COL during the time of the conduct alleged by Ms. Eberle. We also re--questioned the implicated employees with respect to Ms. Eber1e's allegations. Bryan Fluke: Mr. Fluke identified the following individuals as having worked with him during the time of Ms. Eberle's allegations: David Piatt, Phillip Hutchinson, David Come, Fulton Johnson, Bradley N. Copeland, Lourdes Duncan, Stanley Kerr, Diane Bonfanti, Leroy (contractor - last name unknown), Scott (contractor -- last name unknown), Terry Vaughan, and Dale Bombard. When questioned again as to whether he had engaged in any type of sexual conduct of any kind with Ms. Eberle on or off duty or on City property, Mr. Fluke again responded Jerry Doss: Mr. Doss identified the following individuals as having worked with him during the time of Ms. Eberle's allegations: Dale Suggs, Donald Raines, Lester Packard, Donald Bradley, Mark Shanks, David Pendry, Jack Hall, Billy Keen, Douglas Settles, and Robert Bridges. Mr. Doss again denied having engaged in any sexual conduct with Ms. Eberle in the control room at Larson Power Plant, but this time he refused to answer any questions about any sexual contact with Ms. Eberle which occurred off duty and outside of work. Shawn Maguire: Mr. Maguire could only remember that there was a Plant Manager at the time of the Ms. Eberle's allegations but he could not remember that individual's name. Human Resources' records indicate that James Cecil Kight was Mr. Maguire's supervisor of record at the time. Mr. Maguire again denied Ms. Eberle's allegations and maintained that they did not engage in any type of sexual conduct of any kind with Ms. Eberle on or off duty or on City property. Mr. Herbert: Mr. Herbert identified the following individuals as having worked with him during the time of Ms. Eberle's allegations: Deborah Stefanski, Sandra Cochran, M. Barbara Jordan, Karen Lukhaub, James Olds, and Bryan Riley. Mr. Herbert again denied Ms. Eberle's allegations and maintained that they did not engage in any type of sexual conduct of any kind with Ms. Eberle on or off duty or on City property. We also met with Gary Gonyer for the first time and he had UWUA representative, Robert Upthegrove, present with him. Gary Gonyer: Mr. Gonyer first became employed by the COL on September 29, 1997. At the time of the allegations made against him (approximately 2000 -- 2002), he held the positions of Traffic Control Technician and Traffic Control Foreman. He did not supervise Ms. Eberle. Page 5 of 9 Ms. Eberle alleges that she had sex with Mr. Gonyer at his home between 2000 and 2002 when she was employed in the Risk Management Department. Mr. Gonyer admitted that he and Ms. Eberle had consensual sexual relations, but not on City work time or on City property. He stated that he had sexual relations with her two times at his home while she was on her lunch break and he had the day off from work and that Ms. Eberle drove herself over to his house for those encounters. He stated that they were friends at work. Mr. Gonyer identified the following individuals as having worked with him during the time of Ms. Eberle's allegations: Donald Thomas, Gerald Holbrook, Richard Bibby, Robert Gandy, Kenneth Piotraschke, Mickey (last name unknown), Isaac (last name unknown), James Olds, M. Barbara Jordan, and Mimi Fernandez. We met with Jose Diez this same week as well. Jose Diez: Mr. Diez first became employed by the COL on February 11, 2008 and currently holds the position of IT Support Analyst He has never supervised Ms. Eberle. Ms. Eberle alleges in her State Attorney's Office interview that Mr. Diez was flirtatious, talked with her about having "sex and things," and that in approximately 2012 he wanted her to go into a closet with him at LPD so he could be "touchy, feely." However, she alleges she told him that she did not feel comfortable with that because "we had cameras out in the hallway." Ms. Eberle further alleges that fellow employee Wendy Wilcox (Engineering Tech - LE) told her that Mr. Diez "touched me one day or he touched me and I touched him or something" but she does not provide a timeframe for when this conduct allegedly occurred. She also claims that fellow employee Tiffany Dwyer (an LPD Crime Analyst who resigned on May 4. 2013), told her that Mr. Diez put his hand down her pants in the break room at LPD but also does not provide any timeframe. With respect to Ms. Eberle, Mr. Diez stated that she was just an acquaintance at work and he assisted her with IT issues over the phone just like he assists everyone else at the COL. He stated that she would make sexual jokes and comments to him when she spoke with him on the IT helpdesk phone line and he just laughed and moved on from the subject. (We confirmed that helpdesk calls are not recorded.) He said he was told of Ms. Eberle's reputation of being a troublemaker, that she had done sexual things with employees at LPD, and that he should avoid her. Upon further questioning, Mr. Diez failed to identify where he heard this information. Mr. Diez was shocked by Ms. Eberle's allegations that he did anything inappropriate with Wendy Wilcox. He stated that Ms. Wilcox works at one of the Power Plants and he has assisted her in her office with IT issues, that he has never touched her or seen her outside of work, and that he provided her with his cell phone number for work-related IT issues because of the nature of her work. Mr. Diez did not supervise Ms. Wilcox. Mr. Diez claimed that the incident with Tiffany Dwyer was a misunderstanding as to their friendship. Mr. Diez did not supervise Ms. Dwyer. He stated that Ms. Dwyer kissed him and put his hand on her breast, that he took his hand off and they had a discussion about what had Page 6 of 9 just happened. He stated that this occurred outside the LPD break-room and that there were no witnesses present. He said that he does not understand why it happened but that it was a misunderstanding and that even if Ms. Dwyer's version of the events are different from his, he still maintains his version is correct. He said that they both agreed it was a mistake and resumed their friendship. (Under questioning by the State Attorney's Office, Ms. Dwyer corroborated Mr. Diez's account of what occurred between them, although she claims that their kiss was mutually initiated. She does not identify how Mr. Diez's hands came to be on her breasts while he states that she placed one of his hands on her breast.) Thereafter this same week, we interviewed Wendy Wilcox about Ms. Eberle's allegations that Mr. Diez engaged in inappropriate behavior with her. Ms. Wilcox stated that she has never thought that Mr. Diez's behavior was sexually inappropriate. She said that she has Mr. Diez's cell phone number so that she can contact him regarding issues with the servers in her work area and that all of their calls are work-related. She stated that she calls Mr. Diez directly instead of the helpdesk for her IT issues because Mr. Diez is the individual with the expertise to fix the Department servers at the Power Plant and she prefers to go straight to the source. WITNESS INTERVIEWS Later in the day on July 18, 2013, in a meeting with the City Manager's Office, we discussed the interviews conducted between July 15 - 18, 2013. We informed the City Manager's Office that we obtained the names of thirty-eight (38) current and former co-workers and supervisors from both the original five (5) employees implicated by Ms. Eberle as well as from other long-time COL employees. Because Ms. Eberle's allegations are so dated and the City has no ability to compel former employees to participate in an investigation, the City Manager's Office instructed us to interview only those co--workers and supervisors who are currently employed by the COL. From August 2 7, 2013, we interviewed the following fifteen (15) current, actively employed co--workers and supervisors of the original five (5) employees implicated by Ms. Eberle:2 Deborah Stefanski M. Barbara Jordan Bryan Riley Sandra Cochran James Olds Dale Suggs Richard Bibby Donald Raines Mark Shanks Douglas Settles James Cecil Kight Margaret Heacox Terry Vaughan Dale Bombard 2 We were unable to interview Lourdes Duncan as she has been absent from work due to a personal matter. Page 7 of9 Karen Lukhaub None of the fifteen (15) employees interviewed could substantiate Ms. Eberle's specific allegations. E--MAIL COMMUNCATIONS With the COL resources available, we charged the City's Information Security Officer with retrieving and reviewing all existing E-mail communications between the six (6) currently employed implicated general employees and Ms. Eberle. None of the E-Mail correspondence found corroborated Ms. Eberle's specific allegations. However, the E-Mail communications between Ms. Eberle and Mr. Fluke clearly showed that they had, in fact, engaged in explicit conversations. Bryan Fluke: On August 7, 2013, we met with Mr. Fluke. We probed again into whether he had ever had a sexual relationship with Ms. Eberle either on or off duty or on City property. We reminded Mr. Fluke of his responses to these inquiries in two prior interviews. He again responded, "No" to these questions. After questioning him about his E-Mail correspondence with Ms. Eberle, however, he admitted to having a consensual sexual relationship with her, but denied that they ever did anything inappropriate on work time or on City property. CONCLUSION After conducting our investigation as outlined above, our findings indicate that Ms. Eberle's specific allegations regarding the (6) general, active employees implicated that may have violated City policy cannot be substantiated. However, it should be noted that our investigation was impacted by several limitations. Debra Sue Eberle's lack of details and her ambiguities with respect to the dates of the alleged conduct in her sworn testimony taken by OPS and the State Attorney's Office presented challenges for us and those interviewed. Moreover, the length of time that has lapsed between the conduct alleged and the interviews of the six (6) general active employees affected their responses as well as our inquiries and ability to probe further. FINDINGS Based on all of the foregoing, we make the following findings in our investigation into Ms. Eberle's allegations that six (6) current, general COL employees engaged in conduct of a sexual nature with her: Bryan Fluke: In three (3) separate interviews in this investigation, Mr. Fluke denied having a sexual relationship with Ms. Eberle. He subsequently recanted upon being confronted with his inappropriate, explicit E-Mail correspondence with Ms. Eberle. We were able to substantiate that Mr. Fluke had a consensual sexual relationship with Ms. Eberle. We further substantiated that he was untruthful in this investigation and that he engaged in inappropriate E-Mail communications with Ms. Eberle on work time using City resources, which violate City policy. Jose Diez: We were able to substantiate that Mr. Diez engaged in inappropriate conduct of a sexual nature with another employee outside of the break-room at LPD. Although both he and the other employee maintain that this conduct was consensual, it was inappropriate and a violation of City policy. Page 8 of 9 Gary Gonyer: We were able to substantiate that Mr. Gonyer engaged in consensual sexual relations with Ms. Eberle at his home when both were off-duty, which is not a Violation of City policy. As for the remaining implicated current employees, Mr. Doss, Mr. Maguire, and Mr. Herbert, there was not enough evidence to either substantiate Ms. Eberle's specific claims or show that City policy was violated. Page 9 of 9