STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-1256

)

FREDERICK L. OATES. )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida on August 30, 1984, before the Division of Administrative Hearings by its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Dennis S. Valente, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Charles T. Whitelock, Esquire

WHITELOCK AND MOLDOF

1311 Southeast Second Avenue Ft. Lauderdale, Florida 33316

This matter arose on Petitioner's Administrative Complaint seeking to revoke or suspend Respondent's law enforcement officer certification on charges of gross misconduct and gross insubordination. The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent held a certificate as a law enforcement officer from June 15, 1979 through October 1, 1983. This certificate is currently inactive. At all times relevant herein, Respondent was employed in a law enforcement capacity with the Pompano Beach Police Department.

   
   

2. On October 2, 1981, Respondent, who is black, filed a memo with the Chief of the Pompano Beach Police Department, alleging harassment of black officers and mistreatment of prisoners by police supervisors. Respondent also described an alleged beating by police in an incident which occurred on June 8, 1981.

3. The June 8 incident came to Respondent's attention weeks later in a casual conversation with a Mr. Phillip Robinson who had witnessed the incident and described it to Respondent. Respondent, in turn, reviewed the files and found no "use of force" report which led him to conclude that the incident had been covered-up. At Respondent's urging, Robinson came forward and gave his statement to the Pompano Beach Police Department regarding this incident.

   
   

4. An investigation of this incident and Respondent's other allegations was conducted by the department. Their findings and conclusions differed substantially from those of Respondent. Contrary to Respondent's contention, a use of force report had been filed. Also, Robinson did not actually see the police strike the detainee on the head nor did he observe six blows as related by Respondent.

   
   

5. It must be recognized that Respondent was urging an investigation and did not intentionally misrepresent facts which he himself sought to have determined through such investigation. However, Respondent's accusations of police brutality, official cover up, and racial harassment were at best premature, where, as with the June 8 incident, he was neither a witness nor the designated investigator.

   
   

6. The second incident on which evidence was presented arose when Respondent reported for reassignment as a "teleserve officer" on December 27, 1982. Respondent had been contacted at home and verbally told to report to Captain Sullivan at 11:00 a.m. for the new assignment.

   
   

7. Sullivan observed Respondent outside his office shortly after 11:00

   a.m. and directed him to come into the office to discuss his new duties. Respondent refused to come in stating that he had to go to the bathroom. Shortly thereafter he did return and enter Sullivans' office. An argument which involved shouting heard by other employees ensued, and Sullivan thereupon suspended Respondent and temporarily relieved him of duties.

   
   

8. Respondent was in a guarded state of mind when he reported to Captain Sullivan. He had previously been under psychological evaluation on order of the department and had only three days previously filed several memos accusing police officials of racial harassment and requesting an investigation. Without Sullivan's knowledge, Respondent recorded that portion of the conversation which took place inside Sullivan's office.

   
   

9. A transcript of this conversation revealed that Respondent was prepared to accept his new assignment, but believed that it was a desk job created to harass him. Respondent made several accusations of harassment which apparently angered Sullivan, resulting in a loud and angry exchange.

   
   

10. Respondent established through the testimony of the former city personnel director and coworkers at the Pompano Beach Police Department that he was targeted for firing by police supervisors who wanted to get rid of him. This testimony also established that Respondent was a capable patrolman who had been commended for outstanding police work by both the department and members of the public.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 943.13, Florida Statutes (F.S.) provides in part:

    After August 1, 1974, any person employed or appointed as a law enforcement officer

    . . . shall:

    (7) Have a good moral character as determined by investigation. . . .

    
    

12. Section 943.15, F.S., provides in part:

    
    

    1. Grounds for revocation or suspension of certification shall consist of:

       1. Failure of the certificate holder to maintain qualifications established in

          s. 943.13 or specific standards promul- gated thereunder as rules.

          * * *

          (c) The commission of conduct by the certificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certificate- holder's effectiveness to function as a law enforcement officer or a correctional officer.

          
          

13. Respondent is charged under the above provisions with gross insubordination and gross misconduct. A determination of guilt under these provisions requires a further finding that such gross insubordination or gross misconduct seriously reduces the certificate holder's effectiveness.

    
    

14. Here, Respondent was guilty of poor judgment in making the charges set forth in his October 1, 1981 memo. This could not be considered "gross misconduct," however, since Respondent was merely requesting an investigation of what he believed were instances of injustice. In so doing, he was exercising both a right to speak out and a duty to report suspected official misdeeds.

    
    

15. The transaction in Captain Sullivan's office was a second example of poor judgment and, to some degree, insubordination. However, the deterioration of the discussion did not constitute "gross insubordination." No operational matter was involved and Respondent did not refuse to accept his assignment.

    
    

16. Even if the incidents discussed herein had risen to the level of gross misconduct and gross insubordination, it would still be necessary to conclude that Respondent's effectiveness as a law enforcement officer had been seriously impaired prior to revoking or suspending his certificate. Here, Respondent had lost credibility with his supervisors and may have reached the point where further employment at Pompano Beach was not possible. However, the evidence established that Respondent is a capable law enforcement officer who enjoys a good reputation with coworkers and the general public. Accordingly, he has not suffered the reduced effectiveness required to function as a law enforcement officer within the meaning of the above provisions.

    
    

17. In the recent case of Sammie Lee Davis vs. Dept. of Professional Regulation, So.2d , (Fla. 1st DCA 1984), the Court distinguishes loss of

position with loss of professional certification (teaching), stating that loss of position "does not rise to the level of seriousness contemplated by courts called upon to decide license revocations." For this reason and others noted herein, conduct which may have resulted in Respondent's loss of position is not sufficiently serious to warrant certificate revocation or suspension.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in its Administrative Complaint.

DONE and ENTERED this 26th day of November, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 26th day of November, 1984.

COPIES FURNISHED:

Dennis S. Valente, Esquire Charles T. Whitelock, Esquire Department of Law WHITELOCK and MOLDOF

Enforcement 1311 Southeast Second Avenue Post Office Box 1489 Ft. Lauderdale, Florida 33316 Tallahassee, Florida 32302

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 12489 Tallahassee, Florida 32302

Docket for Case No: 84-001256

Orders for Case No: 84-001256