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State inquiry confirms Sheriff's Office wrongfully altered records

STORY BY EILEEN KELLEY, (Week of April 11, 2013)
Photo below: Sheriff’s department attorney Jim Harpring

A lengthy investigation by the Florida Department of Law Enforcement and the State Attorney’s Office determined a Sheriff’s Office commander altered public records and subsequently destroyed original documents when he inflated staffing records to give the perception that the barrier island is patrolled by more deputies than is the case.

The record tampering added the names of deputies who were out sick, on vacation or not even assigned to patrol work to records to make it appear the sheriff's office provided more consistent island patrol coverage.

The documents were changed after Vero Beach 32963 requested them early last year to see whether they supported Sheriff Deryl Loar’s claim that the northern and southern ends of the barrier island are patrolled 24 hours a day, seven days a week.  Even after the records were altered, they showed that during the month of February, there was no sheriff’s patrol car on the island 21 percent of the time.

Capt. Don Smith – who changed the records – will not face fines or any punishment because his  tampering was done under the direction of sheriff’s department attorney Jim Harpring, according to the State Attorney's Office.

“Even if the advice he received from an attorney is incorrect, it was reasonable for him to seek the counsel of someone who was trained in law,"  wrote Assistant State Attorney Ryan Butler. "Penalizing him for following an attorney’s misadvice is not equitable under these circumstances.”

Under state law, a public official who violates a state statute can be fined up to $500 for the civil infraction. Any public official who knowingly violated state public record laws is guilty of a misdemeanor.

Harpring’s involvement in the matter is a concern because he oversees the internal affairs department at the Sheriff’s Office, and made the decision not to conduct an internal investigation into the record tampering after FDLE suggested Loar's office look into the issue. That decision came two months before the State Attorney’s Office referred the records issue to FDLE for investigation.

Loar, who said he was too busy to meet with an FDLE investigator until after his re-election campaign, told the investigator Harpring essentially oversees all public records requests.

Vero Beach 32963 e-mailed Loar on Friday afternoon asking him to respond to five questions, most of which involved Harpring’s day-to-day role in overseeing public records when it was clear the attorney told Smith to essentially break the law by altering public records.  The sheriff also was asked about Harpring’s role in deciding whether to conduct an internal investigation given his own involvement in the wrongdoing.

Loar had not responded by the time we went to press Monday night.

The issue of patrols surfaced early in 2012 when Indian River Shores Town Manager Richard Jefferson sent a letter to residents of two subdivisions his town wanted to annex, claiming his police department could provide better service than the sheriff.  Jefferson called the sheriff’s presence on the island virtually non-existent.

Loar disputed that.

Vero Beach 32963’s subsequent examination of records provided by the Sheriff’s Office, however, showed the island was not being patrolled around the clock.  Even the altered records later provided by Smith still showed the island without coverage more than one-fifth of the time.

The FDLE investigation supported the Vero Beach 32963 findings. The agency found 12 cases where Smith added the names of deputies to the records when in fact they were not working. The investigation also revealed Smith added the names of deputies four times to more than one shift in the lineups when other records indicate the deputies worked just one shift.

In 22 cases, FDLE found that deputies’ names were added even though time their card records suggest otherwise.  The agency also pointed out that the system in place at the sheriff’s office is flawed because the multiple methods used to track deputies were riddled with errors.

The FDLE interviewed 12 deputies, the sheriff, Smith, Harpring  and a handful of other employees. It also reviewed payroll records, speed shift records – which are akin to a calendar used to keep track of assignments, training and vacation days  –  and the three sets of patrol records given to Vero Beach 32963

Shortly after Vero Beach 32963’s initial stories on the records, Harpring  got a call from an FDLE inspector who wanted to give him a heads up that someone had called the  department anonymously to complain Smith had changed the documents requested by the newspaper.

The inspector advised Harping that the call was a courtesy and said he wanted to give the sheriff’s office an opportunity to look into the matter.

Two days later, Harpring sent a memo to Loar and  Undersheriff Bud Spencer. In it, he said an internal investigation wasn’t needed because Smith never altered documents.

“Based on my full knowledge of all of the facts and circumstances surrounding this matter, I have determined that no further inquiry is necessary. The allegation that Captain Smith ‘altered’ an official document when replying to a public records request is unfounded and there is no basis in fact for this allegation,” Harpring wrote.

But as it turns out, Harpring was the one who told Smith it was OK to add additional names to the records, according to the FDLE report.

Smith told FDLE investigator Mike Stephenson that he had gone to Harpring, and sought his OK to add names of deputies that work in ranch and grove, crime prevention, and the K-9 unit to the patrol line ups to better reflect the true manpower of the sheriff’s office.  

“I went to our attorney and I said, ‘You know as far as am concerned any – all of these guys they are working hard,’" Smith told Stevenson. "'If something happens, they will jump to calls, they will back someone up.' I’m sure you guys have all been police officers, you know how it works. And my feeling those guys should be on the lineups. And the chief and attorney said we will get back to you. So I got this – I got this response from our attorney, and that’s from our attorney, saying, yeah I agree those guys should be on there. You should list all the guys because they are out there working ... So I went through as fast as I could, because I know she (the reporter) had the first set of records. And I got them done as fast as I could.”

Vero Beach 32963’s stories on the altered records first appeared in April 2012.  In July, attorney Bob Meadows – brother of the campaign manager for Lt. Bill McMullen, who was running against Loar in his bid for re-election – filled an official complaint with the State Attorney’s Office contending the record changes were designed to bolster Loar’s campaign.

Subsequent to that, Loar and his top lieutenants took the position in interviews with FDLE and the State Attorney’s office that the stories which had appeared earlier were all politically motivated, even though the McMullen campaign had nothing to do with the original Vero Beach 32963 reporting.

While Loar claimed he was too busy to meet with an FDLE investigator until after his re-election campaign was successfully concluded in August, he subsequently was interviewed.

According to transcripts of interviews conducted by FDLE, Loar appeared evasive when asked repeatedly about what he knew and didn’t know with regard to the altering of records. 

“I will tell you there’s no intent on anybody’s part to mislead anybody. What happens is you have several ways of documenting who’s working  and how those got combined, or lack thereof, I think at best would be – would be sloppy, at best. But there was no game or intent to say, hey, you know, let’s put these numbers down there,” Loar said.

On several occasions, Loar deflected investigators’ questions and – instead – claimed the newspaper’s stories were part of a negative campaign orchestrated by his election foes.

Over the summer, Stephenson drove to Smith’s home to interview him.  Smith came to the door, but he refused to answer questions. Instead, he gave the investigator a piece of paper with phone numbers of an attorney. 

In late August, Smith sat with investigators and his attorney.   Like Loar, he too maintained he was the target of a smear campaign.

Two months later, Butler of the State Attorney’s Office, which was doing a simultaneous investigation, called Stephenson and told him Smith may have broken the law by permanently altering the records.

With that information in hand, Stephenson visited Smith and his attorney again in December.

Sometime after that visit, Stephenson turned his investigation – which is about five inches thick – over the State Attorney’s Office for its review.

The State Attorney’s Office looked at two Florida statutes: Official Misconduct and Retention of Public Records.

With the misconduct statute, the state would have to prove that Smith was a public servant; that he falsified an official record, that he acted with a corrupt intent and acted with the intent to obtain a benefit from any person or to harm any person.

The first two standards were met, the State Attorney's Office concluded. The only evidence that there was corrupt intent on Smith’s part was circumstantial, Butler said.

“There is no question that Smith created the amended line-ups and did so inaccurately,” Butler wrote.

Butler added, however, that the FDLE investigation highlighted the need for the command-level employees in the Sheriff’s Office to receive additional training on how to maintain public records.