JACKSONVILLE, Fla. — * Watch First Coast News at 6 p.m. Thursday to see this Special Report
A SWAT officer with the Jacksonville Sheriff's Office who admitted drinking a fifth of vodka just hours before driving his police car to a gun range for firearms training will keep his job, despite the Jacksonville Sheriff’s Office's decision to fire him.
Officer Nicholas Gifford was terminated by JSO in October after he showed up to the city's gun range with a blood alcohol level four times the legal limit. But two months later, the city’s Civil Service Board ordered JSO to reinstate him, saying the firing was “manifestly unjust.” As a result, Gifford will retain his $71,000-a-year job, likely in a diminished role.
“The Board prevented the agency from upholding its zero-tolerance policy for on-duty officers being under the influence of alcohol,” said JSO Director Larry Schmitt, who oversees the agency’s Department of Personnel & Professional Standards.
In a statement to First Coast News, he said the case “highlights the challenges law enforcement agencies face when established industry standards of policy can be upended by a small group of individuals who are not trained in those standards.”
He added that the board’s vote “does not prioritize the obligation and commitment that the Jacksonville Sheriff’s Office has to the public safety of this city.”
Gifford declined interview requests, but his attorney Phil Vogelsang issued a statement that says, in part, “We appreciate the Board’s willingness to allow this officer to continue to serve this community and the opportunity to present this case before them.”
Gifford’s intoxicated condition was initially discovered Oct. 13 by fellow officers who saw him “swerving back and forth” while driving his city-issued car to the JSO Firing Range, some 30 miles from his home. Gifford admitted to his inebriated state when the officers confiscated his gun belt.
“I’m drunk,” he told them, according to an Internal Affairs report.
A series of breathalyzer tests taken more than three hours later confirmed it. Gifford blew a .316 -- four times the state’s legal limit of .08, and a patent violation of JSO’s policy threshold of .00.
When questioned by Internal Affairs investigators on Oct. 14, the day after the incident, records show Gifford admitted he’d consumed a fifth of vodka before falling asleep around 3:30 a.m. – 4 ½ hours before his shift. He acknowledged having a serious drinking problem and reporting for work impaired previously, “probably five, 10 times.”
The eight-year officer was suspended immediately, and fired Nov. 5.
But on Dec. 16, he appealed his firing to the city’s Civil Service Board – a volunteer body tasked with reviewing discipline decisions challenged by city employees, and whose members are appointed by the mayor, JEA and the school board.
After hearing from both sides, the board concluded the decision to fire Gifford was “manifestly unjust” -- a legal term defined as "shocking to the conscience."
The Board voted to reinstate Gifford following 90-day suspension (retroactive to his dismissal date), with the condition that he undergo three random breathalyzer tests per work cycle for a year.
Those conditions did little to assuage the concerns of Board Chair Jim Register, who voted against reinstatement.
“Are we going to put this officer back in a police car with a gun?” Register asked. “I'm just -- I'm not comfortable leaving this thing and having Officer Gifford drive past me in the next days in a police car until we have some assurance that we've gotten past this horrible, horrible disease.”
Speaking after the vote to First Coast News, he said, “I just did not feel it was prudent to put this officer back in a police car. He was a SWAT officer and there had been admittedly been more than up to exceeding five times when he had done the same thing. He had just not been caught.”
But four other Board members were persuaded by Gifford’s testimony.
“My life is unmanageable with alcohol; I'm not willing to risk it again,” he told them, according to a meeting transcript. “I'm not willing to risk other individuals; I'm not willing to risk my livelihood to get drunk. It's not going to happen anymore.”
He added, “I've been scared -- I've literally been scared straight.”
DUI on Duty
Fraternal Order of Police attorney Phil Vogelsang, who represented Gifford, didn’t dispute the facts of the case. But he noted the officer had no prior discipline. And he argued the firing was unfair since “multiple” off duty officers have gotten DUIs over the past year and received only suspensions.
“It is 'manifestly unjust' to treat an officer who gets a DUI in his personal car differently than an officer who ... is charged with administrative DUI in his JSO vehicle,” Vogelsang said. “They are the exact same thing. On or off duty does not matter.”
But Lt. Michael Shell, who oversees JSO Internal Affairs, disagrees.
“There is a difference between someone who is on duty, operating a Sheriff's Office vehicle versus someone who is off duty,” he told First Coast News. “And I think that's a delineation that would be clear to almost anyone.”
Undersheriff Pat Ivey echoed that, telling the Board that Gifford – armed, drunk, in a city vehicle – posed an enormous liability.
“To say that somehow that's not different than a DUI in your personal vehicle ... that's -- I think that's just trying to do a Jedi mind trick on the Board.”
Standard discipline for an officer who gets an off-duty DUI is a five-day suspension. But there isn’t much precedent for cases in which an officer is caught drunk-driving a police car. Ivey said he could recall only two cases in the past five years. He said those officers either quit or resigned.
But Vogelsang brought up a 1999 case in which a top JSO official -- Assistant Chief Bobby Deal – actually crashed his police car while drunk and was allowed to remain on the job, following a suspension. Court records confirm Deal pleaded guilty to DUI, but the case file itself has been destroyed. JSO has been unable to locate the arrest report.
Ivey tried to explain to Board members why Gifford wasn’t just arrested, which would have bolstered JSO’s case for termination.
“There was a lot of chiefs and only one Indian, so to speak, if you will,” Ivey began.
Ivey said the officers at the gun range called two different supervisors and got different instructions from each. One said to bring Gifford to Internal Affairs for a breath test; the other said not to remove him from the scene. The latter advice didn’t reach officers until Gifford was already headed downtown, Ivey said.
Gifford’s blood alcohol level was certainly high enough for a DUI conviction, but because the breath test was compulsory -- part of JSO’s administrative investigation into his conduct -- it could not be used as part of a criminal case. And removing Gifford from the scene complicated charging him criminally.
“From a criminal standpoint, you've already removed him from the scene, and you have all those challenges now,” Ivey explained. “You can order him to do the administrative blow, but you've essentially messed up the DUI investigation. So, that's why. It would have been done, but those guys -- experts on the SWAT side -- they messed that up.”
According to the Internal Affairs report: “If proper enforcement action had been taken at the scene, a DUI investigation would have been warranted and would likely have resulted in a criminal prosecution.”
Plans to Appeal
After the vote, Chair James Register said he believed the board had “set a horrible precedent.”
JSO Director Schmitt agreed.
“’Manifestly unjust’ in legal terms … means you are absolutely shocked that the employer fired an employee for these actions,” he told the Board.
“What your decision says tonight is, as a Board, you are shocked that a police officer could drive a police car with a .31 blood alcohol content, having done it repeatedly at least five times up to 10 times, gone to a gun range where they were training with live ammunition that day -- and you're shocked that we would fire them. That defies logic for me.”
He added, “The Sheriff made [his] decision. The decision was termination. You substituted your judgment for the Sheriff's judgment. The Sheriff is elected by the citizens of Duval County, and you just reversed the citizens' decision to elect their Sheriff and make those decisions. That is manifestly unjust.”
Schmitt says JSO plans to challenge the Board’s decision in Circuit Court. JSO has also filed paperwork with the Florida Department of Law Enforcement seeking to have Gifford’s law enforcement certification revoked.
Gifford is currently serving his 90-day suspension and has not yet returned to duty.
Statement from Gifford’s attorney Phil Vogelsang:
“Our member served his country and served the City of Jacksonville without any prior discipline in his career. He was entitled to a hearing in front of the neutral Civil Service Board as part of his due process. The Board after hearing all of the facts decided that termination was manifestly unjust and gave Mr. Gifford a lengthy suspension. We appreciate the Board’s willingness to allow this officer to continue to serve this community and the opportunity to present this case before them.”
Statement from JSO Director Larry Schmitt
“Although we empathize with the officer’s personal situation, we are obligated to the community we serve to hold our officers accountable for their actions.
As stated in the Civil Service Board Disciplinary Hearing Final Order (attached), the board found that there was sufficient cause for the discipline imposed. The following facts of the case are undisputed, including:
- DUI at almost four times the legal limit, in a police car, while on duty, with intention to engage in live firearms training.
- The officer admitted he had previously reported to work as a sworn police officer while under the influence of alcohol, approximately five to ten times.
Under the disciplinary guidelines of the Jacksonville Sheriff’s Office, the offenses committed warrant termination. The Civil Service Board only has the authority to change discipline if the discipline imposed is “manifestly unjust” (a legal term defined as being “shocking to the conscience”). The board decided, by a 4-2 vote, that JSO’s decision to fire an employee who committed these serious offenses was shocking to their conscience. The Board prevented the agency from upholding its zero-tolerance policy for on-duty officers being under the influence of alcohol.
Therefore, the Jacksonville Sheriff’s Office will be appealing the Civil Service Board’s decision.
This case highlights the challenges law enforcement agencies face when established industry standards of policy can be upended by a small group of individuals who are not trained in those standards. The decision made by the Civil Service Board does not prioritize the obligation and commitment that the Jacksonville Sheriff’s Office has to the public safety of this city.”