City of Marco Island headed for legal fight after terminating officer for third time
This is a six-month review of the most-read crime stories in Collier County on naplesnews.com from March 2019 to August 2019. Naples Daily News
Fired and rehired twice, embattled Marco Island police officer John Derrig will face off with the city in arbitration again after being terminated for a third time Friday.
Derrig's latest dismissal comes more than seven months after being accused of sleeping on duty and not responding to multiple medical calls for service. In total, he was accused of more than 44 policy violations including, but not limited to, multiples counts of insubordination, integrity, conduct unbecoming, untruthfulness and ethics.
Of the violations Derrig is accused of, only one charge of untruthfulness was not sustained, internal affairs documents show.
Then-acting Police Chief Dave Baer ordered an investigation into Derrig in July after it came to his attention that Derrig may have been sleeping on duty. A subsequent conversation with Sgt. Zach Kirsch revealed that Derrig had also failed to respond to four medical calls, including one in which Derrig’s vehicle sat idle for a few hours.
Officers are required to respond to all medical calls and Derrig stands accused of not only disobeying the directive but lying when confronted about it.
It appears plans to terminate Derrig have been in the works for more than a month, as he was provided notice on Dec. 13 of a pre-determination hearing.
Issues that surfaced during the hearing raise the question as to whether the city will become a three-time loser and strike out again in its attempts to rid the department of Derrig.
The city has tried and failed to remove Derrig on two separate occasions within the last decade. Arbitrators overturned the decisions and reinstated him with back pay after finding the city acted without ample cause to terminate him and harbored a certain animus against him.
In the first decision, Derrig had been fired in 2010 for being “grossly insubordinate,” untruthfulness and failing to write an accurate report.
When weighing employment decisions, arbitrators use the Seven Tests of Just Cause in the 1964 Enterprise Wire case, which includes a review of whether there were equal treatment and also the appropriateness of the penalty.
This is where the arbitrator disagreed with the city’s actions.
"What is ultimately revealed through a thorough examination of the record is the case of an intense officer, 'high performing' according to a former supervisor but a loose cannon by other accounts, whose aggressive style had endeared himself neither to the employer nor to a number of citizens," Arbitrator Thomas Humphries wrote. "Although aspects of the Grievant's action including his often hardline interactions with the citizenry do raise legitimate questions about the propriety of his conduct, the totality of the record falls short of supporting the penalty of discharge."
After Derrig was reinstated, multiple officers testified during his second arbitration hearing that the police administration was out to get him.
Along with having to be retrained, he was given tasks "belittling to a law enforcement officer." This included putting together glow sticks for a Halloween event, taking reports from walk-ins and washing police cars.
Months into his return, the complaint that led to his second termination surfaced.
He was accused of punching and kicking a South African national outside of the Bombay Club several years prior. Part of the alleged attack occurred after the person was in handcuffs.
While the department determined Derrig violated policies including misusing authority, use of force, rules of conduct, report writing and preliminary investigations, arbitrator Frank Squillace ruled that the evidence did not support the conclusions the police department arrived at. He also agreed with the union’s argument that the investigation was “faulty and contrived.”
"His behavior was not counter to good police work performance," Squillace wrote. "He did not exhibit irresponsibility or carelessness with his assignments. It is unfortunate that the police department administration had a certain animus toward Officer Derrig. Thus, the Union's claim that Officer Derrig was retaliated against, is meritorious."
The most recent investigation and the incidents referenced in his termination came shortly after Derrig complained to human resources about Baer placing “malicious documents” in his and other officers’ personnel files.
"Over my 13 years of my employment, there (were) several uninvestigated and or slanderous documents placed into my personnel file," Derrig wrote in an email to human resources manager Leslie Sanford. "These documents were never investigated per Florida Statutes, or the dispositions were never included because there was no merit to the complaint. These documents were placed inside my file to support the malicious agenda of the prior administration. These documents are insufficient on its face and should be removed."
The city attempted to distance Baer’s involvement in the case, yet he is the person who ordered the investigation.
Mike Tucker, one of Derrig’s Fraternal Order of Police representatives, has more than 20 years representing law enforcement officers, but this case has him at a loss.
During the Jan. 8 pre-determination hearing, he told the police administration that he had never seen such overreach: 44 charges for four missed medical calls.
He also questioned whether there was any clear or convincing evidence to substantiate the charges, including mixed responses as to whether the policy of responding to medical calls was strictly enforced.
As to the allegations Derrig was sleeping on duty and missed calls, his punishment was exponentially more severe than others who were caught in the act and missed criminal calls.
Officer Edward Carey has received notices of counseling for two different sleeping-on-duty incidents, including one where Sgt. Kyle Kreis took a photo of him in the act.
Carey’s punishment was placing him in a vehicle that would not allow him to recline his seat.
Officer Alan Reyes was caught sleeping in his vehicle near the Jolly Bridge on June 19. Lt. Clayton Smith pulled up to Reyes’ vehicle after Reyes failed to respond to a disturbance involving 50 people at the beach.
Smith shined a light in his eyes before tapping on the window, rousing Reyes from his sleep. Reyes denied sleeping and that there was a call to the beach.
Although Sgt. Mark Haueter suspected Derrig was sleeping on duty, records indicate he had no physical evidence to support his conclusion and did not approach his vehicle when it sat idle.
Department’s investigation questioned
Along with questioning the evidence, questions have arisen as to how the city conducted its investigation and whether the city was within its rights to act.
It would appear as if the city violated Florida statutes on at least one occasion when it provided Kirsch with a copy of Derrig’s interview to which he responded by accusing Derrig of lying again.
With there being an ongoing investigation, the law prohibits disclosure of “the identity of the officer under investigation, the nature of the questions asked, information revealed, or documents furnished in connection with a confidential internal investigation of an agency, before such complaint, document, action, or proceeding becomes a public record.”
Yet, the city furnished a copy of Derrig’s statements to Kirsch during an interview, internal affairs records show.
There is also a question as to whether the city can impose any discipline regardless of whether Derrig did or not commit the infractions.
The Officers’ Bill of Rights establishes that there is a 180-day clock to investigate and impose discipline unless the complaint was internal. The internal vs. external complaint debate began in McQuade vs. the Florida Department of Corrections.
Tucker told the police administration that it was not the intent of the legislature to let proceedings go longer than 180 days. The problem with the McQuade hearing and state statutes, however, was that there is no definition of an internal or external complaint.
The city became aware of the potential policy violations on May 23 but did not indicate when it believed the clock started.
Tucker, who sits on the FOP’s legislative board, said it was the intention of legislators to clarify the definition this year.
He warned that if the city terminated Derrig, his case could be used as the guinea pig to overturn the McQuade ruling.