STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD B. WALBEY, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1789

) STATE OF FLORIDA, DEPARTMENT ) OF LAW ENFORCEMENT, CRIMINAL ) JUSTICE STANDARDS AND TRAINING ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted pursuant to Subsection 120.57(1), Florida Statutes, on October 8, 1982, in the Richard P. Daniel Building, Jacksonville, Florida. The transcript of this case was received on November 3, 1982, and has been reviewed prior to the entry of this Recommended Order. 1/

APPEARANCES

For Petitioner: Kenneth Vickers, Esquire

437 East Monroe Street Jacksonville, Florida 32202

For Respondent: Jeffrey Miller, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

ISSUES

The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to' be determined deals with the propriety of the denial of certification based upon the belief on the part of the Respondent that Petitioner does not have the requisite good moral character necessary for certification. See Subsection 943.13(7), Florida Statutes.

FINDINGS OF FACT

1. The Sheriff's Office of Jacksonville, Duval County, Florida, had submitted an Affidavit of Certification for Petitioner Harold B. Walbey, Jr. In response to that affidavit, the Criminal Justice Standards and Training Commission issued a Statement of Denial, a copy of which may be found as

   Respondent's Exhibit No. 1, admitted into evidence. The basis of denial was related to the belief that Petitioner did not evidence the requisite good moral character required for certification. See Subsection 943.13(7), Florida Statutes.

   
   

2. In particular, the denial related to a series of events leading to the revocation of Petitioner's Florida Teaching Certificate by order of the State Board of Education entered on October 12, 1979. Respondent's Exhibit No. 2 is a copy of that order of revocation together with the Recommended Order of the Hearing Officer, Division of Administrative Hearings. The revocation of the teacher's license was premised upon a conclusion of law that Petitioner had committed acts of gross immorality and moral turpitude in his relationship with junior high school female students in the school in which he taught. Those acts had sexual connotations. It was also determined in law that Respondent had lost his effectiveness as a teacher in view of the underlying circumstances.

   
   

3. Petitioner took issue with the denial of his law enforcement certificate and requested a formal Subsection 120.57(1), Florida Statutes, hearing. The matter was then referred to the Division of Administrative Hearings and a hearing was held on October 8, 1982, in Jacksonville, Florida.

   
   

4. On November 2, 1981, Petitioner was employed as a temporary or probationary employee of the Sheriff's Office, in Jacksonville, Duval County, Florida, in the position of Correctional Officer at the County Prison Farm and remains in that employment at this time. Duties of the Petitioner would include floor assignment, medication, food, preparation for commitment, booking, releasing and other functions. Among those other functions Petitioner transports female inmates, by motor vehicle, with no other law enforcement official or other person in attendance. These trips in which Petitioner has custody and control over female inmates are infrequent.

   
   

5. Officials within the Duval County Sheriff's Office who presented Petitioner's Affidavit of Certification maintain a neutral posture on the question of his certification and have vouched for Petitioner to the extent necessary to elicit a final decision from Respondent on the question of certification. The chief personnel officer for the Duval County Sheriff's Office feels that the Petitioner would make a good employee if he has become sufficiently rehabilitated following the incidents which led to the revocation of his Florida Teaching Certificate. Petitioner is well accepted by his superiors in his capacity as Correctional Officer and has received acceptable performance evaluations.

   
   

6. Petitioner has been married three (3) times and is the father of twelve

   (12) children, none of which reside with him. He is responsible for furnishing support to his children. Petitioner holds a BS degree from Edward Waters College and a Masters degree from Florida A & M University. He has served in the military, both in the Air Force and the Army National Guard. Walbey is now forty-five (45) years of age.

   
   

7. Testimony from community leaders and neighbors and acquaintances of Petitioner show him to be a person deemed to be reputable and hard working and a fine neighbor.

   
   

8. No testimony was offered related to efforts which Petitioner had made in trying to effect his rehabilitation through professional assistance on the topic of those matters which caused him to lose his teaching certificate or opportunities in which Petitioner had conducted himself with proper decorum when

   in the presence of young women following that disciplinary action. Petitioner did not concede the facts of those incidents leading to the revocation as a part of his presentation.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.

   
   

10. Petitioner has been denied his request for certification by the Criminal Justice Standards and Training Commission based upon the belief that he lacks good moral character.

    
    

11. Subsection 943.13(7), Florida Statutes, requires that an applicant who seeks employment or appointment as a law enforcement officer must have good moral character. Petitioner having demonstrated that he is otherwise qualified to receive certification, Respondent must demonstrate that Petitioner is lacking in the requisite good moral character.

    
    

12. Respondent met its burden of demonstrating that Petitioner was lacking in moral character as evidenced by the events which led to his decertification as a teacher in the State of Florida. The nature and quality of the acts which led to that disciplinary action were matters grossly immoral and matters of moral turpitude involving children in his charge. Those acts were of a sexual nature directed to female students and were not in keeping with the normal standards of behavior acceptable in the general society and were particularly reprehensible when viewed in terms of the standards expected of educators.

    These actions by Respondent also caused him to lose his effectiveness as a teacher.

    
    

13. Those activities by Petitioner which caused the Board of Education to look askance at his right to continue in that profession do not bode well for Petitioner in his efforts to receive certification by the Commission. Petitioner has shown himself to be a person not to be trusted with the welfare of persons for whom he is responsible and over whom he has high degree of

    control. In his present employment, his involvement with female inmates through the transportation process accentuates this potential dilemma, however infrequent the task. While Petitioner has been shown to be a person of noteworthy general reputation in the community, it is his past conduct with female students and his potential involvement with female inmates which must be critically examined and responded to by Petitioner, the Commission having made a prima facie showing that Petitioner lacks good moral character.

    
    

14. Community acceptance, in the general sense of that term, is not the quality of response which would tend to prove Petitioner's rehabilitation on the subject of his relationship with females who are in his charge. This evidence does not meet the burden of refuting the prima facie showing made by the Commission related to Petitioner's moral character. Petitioner could have met his burden by establishing his recognition of the problem related to females who are in his care and custody or charge, and offering satisfactory explanation of the efforts which he has made to obtain professional counseling and assistance. It is this type of evidence which would tend to remove the pale from Petitioner in his relationships with young women, whom he has been shown to be prone to acts of sexual harassment. In addition, Petitioner did not present witnesses who were young women who had been alone with Petitioner, following the

    revocation of his teaching certificate and who by their testimony might remove the suspicion concerning his conduct.

    
    

15. Finally, the mere passage of time might be a sufficient indication of rehabilitation; however, in this instance, the period between the acts for which Petitioner was found responsible and which led to his decertification as a teacher and the point of application for recognition as a law enforcement officer is not sufficient to declare Walbey rehabilitated.

In summary, Respondent had met its burden of showing that Petitioner lacks good moral character and he has failed to refute that proof by establishing his rehabilitation. It is, therefore,

RECOMMENDED:

That a final order be entered which denies Petitioner's request to be granted certification as a law enforcement officer in Florida.

DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1982.

ENDNOTE

1/ Respondent has offered a proposed recommended order. This matter has been considered prior to the entry of this Recommended order. To the extent that the proposal is consistent with the Recommended Order it has been utilized. It is otherwise rejected.

COPIES FURNISHED:

Kenneth Vickers, Esquire

437 East Monroe Street Jacksonville, Florida 32202

Jeffrey Miller, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Robert P. Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 82-001789

Orders for Case No: 82-001789