STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2143

)

GERALD T. PING, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 28, 1987, in West Palm Beach, Florida, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Gerald T. Ping, pro se

6690 Southwest 88th Trail Okeechobee, Florida 34574

ISSUE

Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character.

At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148.

2. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant.

   
   

3. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills.

   
   

4. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release.

   
   

5. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks.

   
   

6. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past.

   
   

7. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26)

   
   

8. On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home.

   
   

9. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to

   $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier.

   
   

10. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission.

    
    

11. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle,

    Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name.

    
    

12. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida.

    
    

13. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction.

    
    

14. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind.

    
    

15. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him.

    
    

16. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside.

    
    

17. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both

    hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes.

    
    

18. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent.

    
    

19. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found.

    
    

20. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution.

    
    

21. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

23. Section 943.13(7), Florida Statutes, requires that certified correction officers,

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

    Section 943.1395(5), Florida Statutes, requires:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of

    s. 943.13(1)-(10).

    
    

24. Rule 11B-27.0011, Florida Administrative Code, which defines "good moral character" for the purposes of obtaining and maintaining correctional officer certification is not helpful in the instant case. After setting forth in subsections (1)-(3) acts dealing with the use of controlled substances which "conclusively establish" one not to be of good moral character, subsection (4) provides:

    
    

    1. For the purpose of revocation pursuant to Subsection 943.1395(5), F.S., the employing agency shall forward to the Commission a report in accordance with procedures established in Rule 11B-27.003 when:

       1. An officer has been found guilty of violating Sections 790.17, 790.18,

          790.24, 790.27, 796.06, 796.07, 800.02,

          800.03, 812.014(2)(c), 812.016, 812.081,

          817.035, 817.235, 817.39, 817.49,

          817.563, 827.04(2), (3), 827.05, 828.122,

          831.31(1)(b), 832.041, 832.05(2), 837.05,

          837.06, 843.02, 843.13, 843.17,

          847.011(1), (2), (4), 847.0125(2),

          847.013(2), 847.06, 847.07, 870.01,

          870.02, 876.17, 876.18, 893.13(1)(a)3., (1)(d)3., (1)(f), (2)(a)1., or F. S.

       2. An officer has perpetrated any act which would constitute a felony or an offense under subsection (2)(a) of this rule, or committed an egregious act which establishes that the officer is not of good moral character.

          
          

25. Herein, Respondent was charged under Section 838.016, Florida Statutes, which is not an enumerated statutory section within the rule and pled nolo contendere to Section 944.37, also not an enumerated section within the rule. A plea of nolo contendere with adjudication withheld is not a conviction,

    nor does it constitute an admission of guilt. See Vinson v. State, 345 So.2d 711 (Fla. 1977), and cases cited therein at p. 713, and authorities cited supra.

    
    

26. Clearly, the underlying facts as found do not amount to a violation of Section 944.37, Florida Statutes, which reads as follows:

    
    

    Acceptance of unauthorized compensation; penalty. -- No officer or employee of the department shall receive, directly or indirectly, from any prisoner or from anyone on behalf of such prisoner, any gift, reward, or any compensation whatsoever for his services or supplies other than that prescribed or authorized by law or the department. Whoever violates this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.083.

    
    

27. Therefore, any determination of bad moral character must be made upon Rule 11B-27.011, subparagraph (b): Was Respondent's act so egregious as to constitute bad moral character?

    
    

28. Bad moral character has been defined in a variety of ways. No case with regard to corrections officers has been cited by Petitioner nor found by the undersigned after diligent search. A fitting definition of bad moral character for the purposes of the present case is a definition which is not limited by any specific statute and one which was used by the Florida Supreme Court with regard to a bar admissions case. See, Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978). That definition defines bad moral character as,

    
    

    "... acts and conduct which would cause a reasonable man to have

    substantial doubts about an individual's honesty, fairness, respect for the rights of others and for the laws of the state and nation."

    
    

29. Securing a loan in exchange for low interest on the basis of friendship falls far short of exhibiting bad moral character.

    
    

30. In license revocation cases, the burden of proof of wrongdoing and of the specific charge alleged is upon the Petitioner Agency. Revocation of a professional license is of sufficient gravity and magnitude to warrant a standard of proof greater than mere preponderance of the evidence. The correct standard for revocation of a professional license is that the evidence must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1985). Under any standard of proof, the specific charges of bad moral character have not been proven.

    
    

31. The Respondent herein may be guilty of bad judgment and paranoia, but there simply is not clear and convincing evidence of his bad moral character so as to permit revocation of his certificate. Surely, for numerous logical reasons, the agency may wish to prohibit its correctional officers from soliciting loans from inmates. Such activity gives at least the appearance of

impropriety. Such activity may result in improper pressure being placed on prisoners and it may permit lender- inmates to exert improper leverage over debtor-officers, but the agency has not seen fit to prohibit this activity by a specific rule and none of the foregoing "parade of horribles" has been proved-up in this proceeding. In the absence of a rule prohibiting the activity proved, neither revocation nor any lesser discipline is authorized.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against

Respondent.

DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143

Respondent filed no post-hearing proposals.

The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes:

1. Covered in FOF 1.

2. Covered in FOF 2.

3, 4, 7. Covered in FOF 3.

1. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4.

2. Covered in FOF 4.

1. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found.

2. Except as subordinate and unnecessary, covered in FOF 6.

3. Rejected as unnecessary.

4. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7.

5. Except as subordinate and unnecessary, covered in FOF 8.

6. Rejected as unnecessary.

14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9.

17-18. Rejected as unnecessary.

19, 20, 21. Covered in FOF 10-11, and 14.

22. Rejected as unnecessary. 23, 24. Covered in FOF 12.

25. Rejected as unnecessary.

26, 27. Except as subordinate and unnecessary, covered in FOF 13.

28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14.

1. Covered in FOF 16.

2. Except as subordinate and unnecessary, covered in FOF 17.

33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17.

36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18.

1. Rejected as unnecessary.

2. Covered in FOF 20.

3. Except as subordinate and unnecessary, covered in FOF.

COPIES FURNISHED:

Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302

Gerald T. Ping

6690 Southwest 88th Trail Okeechobee, Florida 34574

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. DOAH CASE NO.: 87-2143

CJSTC CASE NO.: C-0908

GERALD T. PING,

Certificate Number: CORR/C-0148

Respondent.

/

FINAL ORDER

This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public hearing on April 21, 1988, in Tallahassee, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was not present.

Upon a complete review of the transcript of record of hearing held on August 28, 1987, in West Palm Beach, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated December 18, 1987, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

Having reviewed the Recommended Findings of Fact (which are attached hereto and incorporated by reference) and the exceptions filed thereto, the Commission adopts the Hearing Officer's findings of fact except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law (which are attached hereto and incorporated by reference) and the exceptions filed thereto, the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Petitioner's Exceptions which are attached hereto, adopted and fully incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number: CORR/C-0908, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed. This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 28th day of June, 1988.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

COLONEL BOBBY R. BURKETT, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to GERALD T. PING, Post Office Box 237, Pahokee, Florida 33476, U.S. Mail on or before 5:00 P.M., this 28th day of, 1988.

cc: All Counsel of Record

Docket for Case No: 87-002143

Orders for Case No: 87-002143