CRIME

Marco Island police haven't taken action against investigator who violated officer's rights

A Marco Island police investigator violated the law when he disclosed information from an active internal affairs case but has yet to face a criminal investigation or disciplinary action despite the department's full knowledge.

During an investigation into now-former officer John Derrig, Capt. Richard Stoltenborg provided a transcript of one of Derrig's interviews to Sgt. Zach Kirsch before questioning him. 

Under Florida law, it is a first-degree misdemeanor for a participant in an internal investigation to willfully disclose information "including, but not limited to, the identity of the officer under investigation, the nature of the questions asked, information revealed, or documents furnished in connection with a confidential internal investigation of an agency, before such complaint, document, action, or proceeding becomes a public record."

More:Marco Island headed for legal fight after firing officer third time

The internal affairs investigative report and transcript from Kirsch's second interview with Stoltenborg confirm he was given Derrig's statement.

"Have you had a chance to review the statement of Officer John Derrig?" Stoltenborg asks on Sept. 16.

"Yes, I have," Kirsch responded.

Captain Richard Stoltenborg of the Marco Island Police Department (MIPD) speaks with chief Tracy L. Frazzano at a Coffee with a Cop event in a Subway on Oct. 23, 2019. Stoltenborg has been serving since 1981.

In the interview, Kirsch accused Derrig of lying after reading his comments about the sequences of events following a missed medical call.

Dr. David Thomas, a retired police officer and professor of forensic studies at Florida Gulf Coast University, said no witness should ever be allowed to read the statements of another witness.

"The problem is that it taints the outcome of the investigation," Thomas wrote in an email to the Naples Daily News. "When this usually happens it is because the investigator is looking to influence the outcome of the investigation." 

These documents, which include a footnote about the Fraternal Order of Police alleging a violation of the Law Enforcement Officers' Bill of Rights, were reviewed by Police Chief Tracy Frazzano before she terminated Derrig on Jan. 17.

Derrig came under investigation after Sgt. Mark Haueter documented a suspicious incident where Derrig's vehicle was sitting idle in a parking lot for a few hours. Haueter suspected Derrig had been sleeping on duty because his vehicle's windows were pitch black despite the car running.  

An unrelated incident was brought to Stoltenborg's attention shortly thereafter where Kirsch accused Derrig of not responding to a medical call and then being untruthful when questioned about it.

The department's investigation sustained more than 40 alleged policy violations including but not limited to integrity, truthfulness, insubordination, conduct unbecoming and failing to respond to medical calls.

More:Facing another investigation, a look at how John Derrig was taken off discredited officers list

Derrig is likely headed to arbitration to regain his job, a process he was become well-versed with while employed at the police department. Before his latest termination, he was fired twice by the department only to be reinstated by arbitrators.

The most recent reinstatement included arbitrator Frank Squillace agreeing with the union's position that the department had targeted Derrig after he returned to work.

"His behavior was not counter to good police work performance," Squillace wrote. "He did not exhibit irresponsibility or carelessness with his assignments. It is unfortunate that the police department administration had a certain animus toward Officer Derrig. Thus, the Union's claim that Officer Derrig was retaliated against, is meritorious."

His union representation has already voiced concerns about disparate treatment considering two other officers caught sleeping on duty received minimal punishment. 

One of the officers, Allan Reyes, was caught in the act after he failed to respond to a disturbance at the beach involving an estimated 50 people.

More:Why did a Marco Island police officer on leave seek info on officers sleeping on duty?

Along with the Officers' Bill of Rights violations, Stoltenborg's actions also appear to be a violation of department policy, according to statements made in other internal affairs cases.

Consultant Ken Afienko warned Kevin Hennings before his termination in 2018 of the directive prohibiting disclosure of information until it became a public record. 

"Violation of this prohibition shall subject the member to disciplinary action, up to and including termination of employment," Afienko said.

Derrig said Stoltenborg's actions were a clear violation of the law. He declined further comment, referring all other questions to his union representation.

Capt. Dave Baer  issued a statement disagreeing with the union's assertion in stating the provisions in the Bill of Rights were followed at all times.

Stoltenborg did not respond to request for comment.

Connect with reporter Devan Patel: @DevanJPatel (Twitter) or devan.patel@naplesnews.com