sherman-and-diana-brown_web.jpgA Broward Sheriff’s Office lieutenant who was fired after refusing to share details of a phone conversation that she had at work with her husband has been reinstated, with back pay.

An arbitrator found that Lt. Diana Brown was insubordinate, but that other BSO employees had received lesser penalties for similar acts.
Arbitrator William P. Hobgood cited Brown’s nearly 30 years of experience in law enforcement and a relatively clean work record, with only a counseling and a pending one-day suspension in her file. He also cited Brown’s exemplary record in the Army Reserves until her recent retirement.

“For all of the above reasons, Grievant’s termination is reduced to a one-week suspension,” Hobgood wrote in his Nov. 17 ruling. “She is to be reinstated with back pay. Less the amount represented by the one-week suspension as well as any unemployment compensation and earnings from employment in other positions.’’

The total amount of pay and benefits has yet to be calculated, but Jim Leljedal, BSO’s director of media relations, said the matter has been closed.

Brown was making about $94,000 a year before she was fired.

“She is back to work over at the main courthouse and we consider the case over with,” Leljedal said.

On Monday, Dec. 15, Brown reported back to work after 18 months off the job. She has her same rank and level of pay, but said she would have liked to have been returned to her same area of assignment in North Lauderdale, and hopes her reassignment is temporary.

“I don’t think I deserved the five-day suspension, but I’ve been exonerated, so I’m happy and can’t complain,” she said on Monday, Dec. 22. “I don’t know how much money and benefits they owe me, but hopefully it will be worked out this week.”

The case began to unfold during an Oct. 21, 2006 meeting with Brown’s supervisors after a discrimination complaint was filed against her. BSO leaders decided she would be temporarily reaasigned, which led to heated exchanges between Brown and her supervisors.

During a break in the proceedings one day, Brown stepped outside. Her direct supervisor, District Chief George Jarboe, said he overheard Brown speaking on the phone with another person after she walked out of the meeting. She was accused of being insolent and disrespectful in an attempt to intimidate Jarboe during the phone call.

When the meeting reconvened, Brown was asked to disclose the name of the person to whom she was speaking. She said it was her husband, Sherman Brown, a 30-year BSO veteran who retired in 1997 at the rank of major.

When she was asked to disclose the details of the conversation with her husband, under the advice of her lawyers – Al Milian of Coral Gables and Johnny McCray of Pompano Beach – Brown refused to do so, citing spousal privilege.

She was subsequently charged with several counts of insubordination and “truthfulness in BSO matters,’’ and was subjected to at least three interrogations under the state’s “Garrity” rule, which compels public employees to answer questions.

BSO internal affairs investigators alleged in an investigative report that Brown made a call to her husband, seeking to get him to call someone else to assist her in changing the administrative reassignment to a suspension, which she preferred.

“Lieutenant Brown cited “marital privilege’’ during her third compelled Garrity statements, and was therefore insubordinate when she refused to answer the question if she was expecting Sherman Brown to intervene on her behalf when she asked him to make a call,’’ states an allegation in the internal affairs investigative report.

Milian said BSO never notified Brown that there was an employment discrimination complaint filed against her, and never gave her a reason for her reassignment. She was  suspended on May 9, 2007 and eventually terminated from employment on June 15, 2007.

The case was pending in the binding employment arbitration process until hearings took place on July 16 and Aug. 4, 2008. The final ruling was issued on Nov. 17. BSO won on the insubordination charge, but Brown prevailed in having her termination overturned.

Some observers had hoped the case might help define the line between a married couple’s right to privacy and an employer’s right to conduct investigations involving employees.

The arbitrator, however, did not address that issue.

“I don’t think it was a fair [ruling] because the issue of my spousal privilege was never ruled on,’’ Brown said, “and I really don’t think an employer should be able to force anyone to reveal their private conversations with their husband or wife.”

Diana Brown was an officer with the Pompano Beach Police Department and joined BSO after the departments merged in 1999. She has been in law enforcement for more than 29 years and is a veteran of the ongoing war in Iraq.

In 1995, she filed a racial discrimination and retaliation lawsuit that named her superiors and then-Acting Police Chief Larry De Furia as defendants.

There was a week of testimony in the lawsuit, including allegations that De Furia – who now works for
BSO as a result of the merger – used racial slurs to refer to and describe Brown. In the end, jurors rejected the discrimination claim but returned a verdict upholding the retaliation charges in the lawsuit. They awarded Brown a $100,400 judgment.

At the time of her termination from BSO in 2007, Brown’s attorneys said they believed she was a victim of continued retaliation for filing the discrimination lawsuit, but that issue was not addressed in the arbitrator’s final determination, either.

“It was clearly retaliation and I still believe BSO has conducted themselves in an unprofessional way, while wasting taxpayers’ money,” Milian said. “This is one of the worst injustices I have ever seen from any law enforcement agency, and the ruling proves it.’’

Photo by Elgin Jones/SFT Staff. Sherman and Diana Brown