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CITY OF MARCO ISLAND Police Department 51 Bald Eagle Drive Marco Island, Florida 34145 239-389-5050 Memo To: Officer Tige Thompson Cc re) Py From: Chief Alfred Schettino y Cc: David T. Harden, Interim City Manager Alan Gabriel, City Attorney Matt Sellers, PBA Employee Representative Date: March 18, 2019 Re: Notice of Disqualification Recommendation At the direction of the Interim City Manager, | was tasked with determining whether the recent letter received from the Office of the State Attorney (“SAO”) has rendered you unfit to perform the essential functions of your position as Police Officer. The City of Marco Island (the “City”), the Police Department (the “Department”), and our citizens require Police Officers to be able to fully and faithfully perform the duties of the position. Unfortunately, your designation by the SAO as someone whose credibility is so comprised that its prosecutor's office refuses to use you as a witness for any of its cases has rendered you unable to fully and faithfully perform the duties of the position. The facts that support the above decision are detailed in a letter to me from Richard Montecalvo, Chief Assistant State Attorney, dated February 15, 2019, wherein Mr. Montecalvo states that his prior determination regarding your credibility remains unchanged — i.e., your credibility is so damaged that you cannot serve as a SAO witness. He further states that your recent involvement in several cases has resulted in nolle prosequi dispositions. The SAO’s designation is commonly referred to as the “Brady List,”* which essentially means you have been identified as an officer the SAO believes has falsified or suppressed evidence that is materially * “Brady” refers to the United States Supreme Court case Brady v. Maryland, which requires prosecutors to disclose constitutionally relevant defense evidence, including possible exculpatory evidence or evidence about the credibility of a police officer expected to testify (i.e., “Brady Material’. 1 ial" relevant to a defendant's guilt or punishment. As such, the SAO has determined that you have no value to its prosecutor’s office as a witness. This Department has no control over the SAO’s Brady List, but the SAO’s determination has nevertheless fatally undermined your ability to perform your job. The reason being, the SAO has stated that you cannot testify. By extension, an officer who cannot be counted on to testify also cannot be counted on to make arrests, investigate cases, or carry out any other police functions that might lead to being a witness. On a more elementary level, your job description specifically includes the following essential functions: “Participates in investigating criminal law violations occurring within the City limits (i.e. obtaining evidence, compiling information regarding crimes, preparing cases for filing of charges, testifying in court, etc.)”; “Works a uniformed shift in the performance of security patrols, traffic control, investigations, and first aid at accidents and detection, investigation and arrest of persons involved in crimes or misconduct”; “prepares cases for giving testimony and testifies in court proceedings”; and having the “[aJbility to establish and maintain effective and cooperative working relationships with those contacted in the course of work.” Your Brady List designation by the SAO has rendered you unable to fully and faithfully perform these duties, as you do not meet the qualifications for the position. Your appearances in court, along with other duties that may lead you to the witness stand, are sufficiently significant parts of your job, such that being Brady-listed has rendered you incapable of performing your job. Although actual testimony in court does not constitute a large amount of your work day, the Brady-listing would be triggered by your contact with any matter that would proceed to court in the future. Moreover, serving as a witness is an essential function of your job, irrespective of the frequency. You being Brady-listed for dishonesty has a direct bearing on your ability to carry out the essential duties of a police officer. It demonstrates your unfitness or incapacity to discharge the responsibilities of the position and specifically relates to and affects the administration of the job. Further, it directly affects the rights and interests of the public and is of substantial significance. Moreover, by being Brady-listed, you no longer have an effective working relationship with the SAO, which is another job qualification. The City has no authority to compel the SAO, which is an independent entity, to rescind its decision. In fact, after several years, the SAO remains steadfast in its determination that your testimony holds no value for its purposes. In other words, the passage of time has not led to your removal from the Brady List, but solidified and reaffirmed it. The SAO is statutorily responsible for coordinating court appearances of all witnesses subpoenaed in criminal cases, including law enforcement personnel. Accordingly, the SAO is acting within the scope of its authority to ensure that you are fit for that duty. While the SAO is not your employer, its actions have a bearing on your prospects to remain a Police Officer with this agency since its role in the criminal justice system is inextricably connected to your position. It is not uncommon that an 2 outside entity might control a licensing, certification, or other similar requirement that is necessary for an employee to fully and faithfully perform the duties of the position. When that outside entity renders a decision that precludes an employee from fully and faithfully performing the duties of a position, the employer has no choice but to remove the employee. The Interim City Manager will decide whether your situation warrants removal. Consequently, | have no option but to inform the Interim City Manager that you cannot perform the essential functions of the position of Police Officer. The Interim City Manager will decide whether you should be removed as a Police Officer. However, before a final determination regarding your employment status is made, you will be offered a Pre-Determination Meeting with the Interim City Manager, during which you will be provided with an opportunity to provide him with any information that you believe may mitigate or negate the proposed action. If you wish to participate in such a meeting, it has been scheduled to take place on March 22, 2019 at 10:00am. The meeting will take place at City Hall in the City Manager's conference room. After the meeting, Interim City Manager Harden will make a final determination based on the information he has available at that time, Until this determination is made, you will remain on Administrative Leave. The supportive documents are attached hereto. Should you have any questions regarding this matter, please feel free to contact me. Marco Island Police Department