No prosecutable crime: GBI sexual harassment investigation into Franklin Co. officials closed

No allegation by the plaintiff rose to the level of a criminal act, according to the GBI investigation.

In March, in the process of conducting research regarding a high-speed pursuit on I-85, ConnectLocal discovered court documents of two actions against the Franklin County Sheriff’s Office (FCSO), including a claim of sexual harassment made by a former FCSO dispatcher during her application for Unemployment Insurance benefit payments. The application for benefits had been denied, and the denial upheld in an appeal. The applicant then filed documents in the Franklin County Clerk of Court’s office asking for a review of the case.


“I am requesting a Judicial Review (of) the Board of Review’s decision denying me unemployment benefits,” former dispatcher Bobbie Green stated in the March 12 filing.


ConnectLocal contacted Green for comment, but was told that, on advice of counsel, she had no comment.


On May 29, Northern Judicial Circuit District Attorney Parks White advised ConnectLocal that he had requested the Georgia Bureau of Investigation to open an investigation into Green’s allegations of sexual harassment against Franklin County Sheriff Steve Thomas and Captain Nick Fowler.


“A former employee of the Franklin County Sheriff’s Office contacted the GBI and this office with long-delayed allegations of potential sexual harassment and a civil personnel issue that, if proven, may afford an individual civil remedies against an employer,” he said in a phone interview. “However, it is not a criminal matter and the former employee was advised of that at the time. This employee then changed her allegations, and contacted this office again with different allegations, and the District Attorney’s office requested the GBI to conduct an independent investigation of the allegations.”


Explaining that all prosecutors in Georgia must abide by “rule 3.8,” Parks stated that the information collected during that investigation “has, thus far, revealed no evidence to suggest that the sheriff, nor any member of his staff, has committed a criminal offense capable of begin prosecuted based on a probable cause standard, which is the threshold for a warrant – that it is more likely than not that a crime has occurred and that it is more likely than not that we can identify who committed the crime.”


The State Bar of Georgia’s Rules of Professional Conduct, Rule 3.8, Professional Responsibilities of a Prosecutor, is included in its entirety in the FYI section at the bottom of this article.


White stressed that, especially in an election cycle, prosecutors and the GBI carry a “high responsibility to not try cases in the court of public opinion, especially when unsupported by corroborating evidence…and are prohibited from making public statements that have the likelihood of increasing condemnation of a person in the public sphere.” Given those considerations, White said, he was limited in the information he could discuss before the GBI investigation was closed.


White referred ConnectLocal to the Franklin County Sheriff and to GBI Special Agent in Charge Jesse Maddox for any further comments prior to the closing of the GBI’s case.

Several telephone calls to Thomas were not returned. A Georgia Open Records Act Request submitted on June 1 requesting records connected with the case, included disciplinary files, procedure and policy manuals and complaint records, was not replied to within the legally-required three-day response period.

ConnectLocal contacted Maddox and confirmed that the GBI had opened an investigation into the allegations made by Green. Maddox said he would advise ConnectLocal when the investigation was complete.


On Thursday, June 4, Maddox contacted ConnectLocal to advise that the investigation was complete.


“Due to inquiries from the media, we are making you aware that we are closing the case. We have conferred with the District Attorney and there is no crime related to this. There is not a prosecutable crime that has been committed,” he stated.


Maddox explained that the GBI did not examine aspects of the alleged sexual harassment a far as determining whether the alleged incidents occurred, only as to whether the alleged actions constituted a crime that the district attorney could prosecute.


According to a July, 2019 article in the Atlanta Journal Constitution, “No state law (in Georgia) specifically prohibits sexual harassment, as laws do in California, New York and Michigan. Many victims can turn to the federal Equal Employment Opportunity Commission, because sexual harassment is a form of sex discrimination that violates Title VII of the federal Civil Rights Act. Last year, Georgia residents filed 457 sexual harassment claims, the fourth highest in the nation. Only Texas, Florida and Illinois surpassed Georgia’s numbers.”


The GBI is not involved in civil matters, Maddox stated.


“The investigation showed that the facts revealed no prosecutor crime and we will be closing the case with no further action,” he said.

Case history and allegations:

On Mov. 21, 2019, Bobbie Green resigned from the Franklin County Sheriff’s Office, providing written notice on to the department on her final day of work claiming sexual harassment and a hostile work environment as the reason for her resignation.


On Nov. 25, 2019, Green filed with the Georgia Department of Labor for employment benefits.


On Dec. 13, 2019, GDOL filed a Claims Examiner Determination denying Greens application for benefits.


“If you quit your most recent employer without good reason connected with work, you cannot be paid unemployment benefits. Law says you have to show that you quit for good work-connected reason. You quit your job because you were not satisfied with working conditions. You were basically doing the job you were hired to do. You were being paid as agreed and working the hours as agreed. There was no significant change in the job to make it unsuitable. You did not quit for good work-connected reason, therefore, you cannot be paid unemployment benefits,” stated the form.


On Dec. 24, 2019, Green filed an appeal, stating “...am appealing the process due to the denial of employment based on my resignation. I was forced to leave my job due to sexual harassment, retaliation and hostile work conditions that entailed constant harassment and retaliation. The circumstances surrounding my resignation forced me to resign due to the stress I was enduring. The Incidents I experienced would lead any rational person to the conclusion they were not wanted. The slander, lack of training, failed promises were a definite indication that my presence was no longer wanted, only I had not done anything to warrant termination or treatment.”


An appeal hearing was set for Jan. 21. The telephone hearing was conduced by Unemployment Insurance Appeals Tribunal Supervisor Karen Watkins, with Green participating on her own behalf, Chief Deputy Jimmy LeCroy representing the FCSO, and FCSO Deputy Mark McCarty as witness for Green, who identified McCarty as her “partner.”


Following is Green’s narrative of the incidents that led to her decision to resign her position and to the filing of allegations of sexual harassment against Thomas and Fowler, as well as allegations of a hostile work environment and retaliatory actions.


“On Jan 19, 2016, I started as an admin dispatcher (and) trained for a short period of time, 2-3 weeks. During this time the sheriff would ask me to go on details or trips with him,” Green stated. “We became friends and although he would make inappropriate comments, I looked past them because I was grateful to have a job. The relationship became uncomfortable when he began to send porn and say that is what he wanted to do to me. He constantly called me while I was working and harassed me. He came to my house on several occasions, but one time he came to question me regarding a relationship I had with one of the deputies. After scolding me, he tried to hug me, and when he did, he rubbed his hand across my breast.”

Green stated that she had contacted an attorney in Atlanta at that time, but had decided not to continue with the lawsuit out of fear of the loss of her job.


“After deciding not to continue with the lawsuit, I sent Sheriff Thomas a text, asking him to stop sending me inappropriate messages, harassing me and not to make any more advances to me. A week later he came to the office and apologized. The harassment from the Sheriff stopped until around August 2019 when he became paranoid with the upcoming election and approached me several times at work asking if I had told anyone what he did,” Green stated in her official complaint. She acknowledged that she had not made any official report about Thomas’ actions and behavior.

“The sexual harassment that I did report to the agency involved Captain Nick Fowler. I considered Nick a friend and my supervisor. For the first year we had a good and respectful friendship. The bizarre behavior started in January 2018. He began to behave obsessively. Staying at the sheriffs office his full 12-hour shift, walking me to my car, making unusual comments and compliments, complaining about his marriage. The deputies began to take notice and ask if I was OK and if I had noticed his behavior – the deputies talked to Major Johnny Bannister about Nick’s off behavior,” Green’s complaint states.

“I approached Captain Nick Fowler as a friend and explained to him that he was starting to make me feel uncomfortable. He left the office and returned hours later and sat in a chair a couple of feet away from me and would awkwardly stare in my direction. He eventually asked me what was wrong with me, and if he did something wrong. I informed him that he and I were not in a relationship and that his behavior is unacceptable. He asks if him and I were going to be in a relationship and when I told him no he walked out. Later, he came back in the office and asked me why I wasn't interested in him, and I told him I didn't have to explain myself. He proceeded to ask more questions and was becoming more irritated, and he angrily asked “why the fuck would you fuck Luke and not me” and proceeded to call Luke names. Jimmy Justice was a witness to the altercation.”

Green stated she reported the incident to Bannister on March 5, 2018. She stated that several weeks later, Fowler was required to apologize to her, and was moved to a different shift, but that no other action was taken by the sheriff or administration. Green asserted that Fowler continued to defame her character to other employees at the Sheriff’s office. Green acknowledged that Fowler did not physically touch her during any incident, nor did she claim that any further incidents of harassment occurred with either Thomas or Fowler, but that the defamation contributed to a hostile work environment where to the point where she felt unwanted in her job and felt she would not be allowed to advance her career. These factors led to her decision to resign her position, she said.

During the telephone hearing, after Green made her statements, LeCroy was allowed to comment and to ask Green questions. LeCroy’s questions to Green were solely related to the person to whom she made the report of harassment, stating that the person she reported the incident to was not her direct supervisor, as required by the policy manual. LeCroy did not offer confirmation or denial of Green’s allegations regarding Thomas or Fowler.

Following the conclusion of the hearing, a DOL decision upholding the denial of Green’s benefit claim was issued. According to the document, the issued to be divided by the hearing was “Whether the claimant had a good work connected cause for leaving he employer.”

The decision summarized Green’s allegations, and stated “The testimonial and documentary evidence revealed that the claimant knew how to lodge a complaint about threatening behavior and received a response after doing so. There for the failure to complain about the sheriff's behavior was within her ability to control. An individual is free to resign employment at any time and for any reason. However, with regard to unemployment benefits, the claimant did not give the employer an opportunity to address the 2016 and 2017 incidents which led to her 2019 resignation. Since she failed to show good work connected cause for leaving available employment. Disqualification for unemployment benefit is required.”

FYI

Chapter 11 – OFFENSES AGAINST PUBLIC ORDER AND SAFETY Article 2 – OFFENSES AGAINST PUBLIC ORDER § 16-11-39.1 – Harassing communications; venue; separate offenses; impact on free speech

Universal Citation: GA Code § 16-11-39.1 (2015)

(a) A person commits the offense of harassing communications if such person:

(1) Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;

(2) Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication;

(3) Telephones another person and intentionally fails to hang up or disengage the connection; or

(4) Knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person's control to be used for any purpose prohibited by this subsection.

According to Without My Consent, a non-profit victim services organization that has a Georgia chapter, “...harassing communication requires the defendant to make the communication with the purpose of annoying or harassment. A... victim may be unable to use this statute in circumstances in which there is evidence that the caller had not initially intended to threaten him or her during the call.” Organization documentation also states that “Any person who transmits or posts a photograph or video depicting only himself or herself engaged in nudity or sexually explicit conduct.” not liable under anti-harassment laws.

GEORGIA Equal Employment Opportunity Commission:

Sexual Harassment

It is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.


Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.


Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.


Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).


The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

  1. refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

  2. refrain from making any effort to prevent the accused from exercising a reasonable effort to obtain counsel;

  3. Reserved.

  4. make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or that mitigates the offense;

  5. exercise reasonable care to prevent persons who are under the direct supervision of the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under subsection (g) of this rule;

  6. not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

  7. the information sought is not protected from disclosure by any applicable privilege;

  8. the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

  9. there is no other feasible alternative to obtain the information; and

  10. except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

The maximum penalty for a violation of this rule is a public reprimand. [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4: Misconduct. [2] Reserved. [3] Reserved. [4] Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. [5] Paragraph (g) supplements Rule 3.6: Trial Publicity, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6 (b) or 3.6 (c): Trial Publicity.

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