Lawmakers won't have to testify in fired trooper lawsuit

Case stems from traffic stop of Jacksonville state Rep. Charles McBurney

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TALLAHASSEE, Fla. - A state hearing officer has ruled that nine House and Senate members will not have to testify in the case of a fired Florida Highway Patrol trooper who alleges that lawmakers are given breaks on speeding tickets.

Trooper Charles Swindle's firing stemmed from a November 2012 traffic stop of Rep. Charles McBurney, R-Jacksonville, on Interstate 10 in Madison County. He said McBurney was driving 87 mph -- which McBurney disputed -- but did not write a speeding ticket.

The trooper gave McBurney a $10 citation for failing to have proof of insurance, though McBurney told investigators he had proof of insurance. McBurney filed a complaint that, ultimately, led to Swindle's dismissal.

Swindle, who will challenge his firing during a hearing Wednesday at the state Public Employees Relations Commission, sought to bolster his case with testimony from lawmakers who had been pulled over -- and who, Swindle's attorney alleges, received preferential treatment.

But hearing officer Gregg Riley Morton sided with the House and Senate in issuing orders Friday that quashed the subpoenas. Morton pointed to a state appeals-court ruling this month that indicated lawmakers have legislative "privilege" from being required to testify about their official duties and the legislative processes.

"It is unclear that the privilege would extend to testimony involving events surrounding a traffic stop,'' Morton wrote in an order dealing with the House members. "Nevertheless, even assuming that the legislative privilege does not apply … I am not certain at this point that the representatives' testimony about the nature of their traffic infractions would be relevant to a defense against the specific charge against Swindle. Moreover, even if I were to determine that their testimony is relevant, I believe that the evidence Swindle seeks is likely to be available from other sources, such as testimony by the ticketing officers or other agency personnel and the tickets or other public records."

Sidney Matthew, an attorney for Swindle, said Tuesday he was not seeking testimony about the lawmakers' legislative duties.

"Legislators get a break on speeding tickets,'' Matthew said. "Now, they get a break on not having to testify about breaking the laws that they make."

The subpoenas sought testimony from Sen. Jeff Clemens, D-Lake Worth; Sen. Charlie Dean, R-Inverness; Sen. Joe Negron, R-Stuart; and Sen. John Thrasher, R-St. Augustine. Also, they sought testimony from Rep. James Grant, R-Tampa; Rep. Ed Hooper, R-Clearwater; Rep. Seth McKeel, R-Lakeland; Rep. Keith Perry, R-Gainesville; and Rep. Alan Williams, D-Tallahassee.

Swindle contends in the appeal that the highway patrol has long had a "quid pro quo leniency policy" when stopping lawmakers for speeding. He argues that the policy, at least in part, comes from not wanting to anger lawmakers who decide whether troopers get raises.

Lawmakers received speeding tickets in at least some instances cited in the case. But Matthew wrote in a case document that lawmakers received breaks on fines because troopers listed them as going 6 to 9 mph over the speed limit, when they actually were going much faster.

The Department of Highway Safety and Motor Vehicles, which includes the highway patrol, has disputed that such a quid-pro-quo policy exists. Also, in a document seeking to quash the subpoenas, the Senate questioned whether lawmakers were treated differently from other motorists who are pulled over for speeding.

"Practically speaking, none of the (Senate) members can possibly know whether or not they received preferential treatment relative to any other motorists in this state who were also cited for driving at an unlawful speed,'' the Senate document says. "Moreover, in the incidences involving Senators Thrasher, Dean and Clemens, each senator was pulled over for speeding, and each senator was ticketed for speeding. At most, one might argue that these legislators may have received leniency, but this leniency would appear no different from that periodically displayed to other motorists."

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