STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4737

)

MARIA SCRUGGS-WESTON, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 17, 1989, in St.

Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Elsa L. Whitehurst, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Maria Scruggs-Weston

1825 45th Street, South

St. Petersburg, Florida 33711

The issue in this case is whether the criminal Justice Standards and Training Commission (Petitioner) should take disciplinary action against the certificate of Maria Scruggs-Weston (Respondent) based upon her alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, including the requirement that a law enforcement officer have good moral character. At the commencement of the hearing, the parties entered certain stipulations on the record. Thereafter, the Petitioner called seven witnesses, four of whom were also called by the Respondent. The Respondent testified on her own behalf. Petitioner introduced eighteen exhibits, while Respondent introduced nineteen exhibits, and had one exhibit rejected. The transcript of the hearing was filed on April 27, 1989, and the parties thereafter filed proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each proposed finding of fact filed by the parties.

Following the final hearing, the Respondent filed a Motion to Dismiss, and the Petitioner filed a Response to the Motion. The basis of the Respondent's Motion was fully addressed and argued by the parties at hearing concerning a Motion for Protective Order filed by the Petitioner. See Transcript, Volume 1, pages 14 - 33. Therefore, it is recommended that the Motion to Dismiss be denied.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer by the Petitioner on September 21, 1981, and was issued certificate number 02-29370.

2. Respondent made a total of 28 personal telephone calls totalling over

   $100.00 on her state telephone credit card issued by her employer, the Florida Department of Law Enforcement (FDLE), between January 31, 1985 and May 31, 1985. At the time she made these calls, she knew it was wrong. She falsified telephone credit card bills by signing or initialing the bill and writing case numbers on the bills to conceal the fact that these were personal phone calls.

   It is FDLE policy that persons making telephone credit card calls must sign or initial the bills to verify that the calls were made on state business.

   
   

3. During January, 1985, the FDLE was brought into an interagency investigation of pornography in the Pinellas, Pasco, Hillsborough and Manatee County area. Respondent was assigned to assist an interagency task force that had been established for this investigation. She was employed as a Special Agent with the FDLE at the time.

   
   

4. Respondent developed, and was in control of, a confidential informant during this investigation who was employed at a bookstore which was involved in this investigation. Although she initially denied to other law enforcement officers working the pornography case, and later to the State Attorney's Office, that she had ever received from the confidential informant mail which was delivered to the bookstore, she was, in fact, getting mail from the confidential informant. The informant was, in some instances, opening the mail received at the bookstore and delivering information to the Respondent from such mail. In other instances, the mail was delivered unopened to the Respondent by the confidential informant, and she would steam open the envelope and read the contents.

   
   

5. During the course of an investigation into her actions, Respondent made repeated material misstatements to fellow law enforcement officers by leading them to believe that the informant was simply opening the mail and providing her information, when in fact, she actually received mail from the informant on numerous occasions and opened it herself. When her actions were discovered, she attempted to cover up what she had done by having the mail delivered back to the bookstore. From March to July, 1986, Respondent made repeated material misstatements to the State Attorney's Office, her supervisors at FDLE, and an inspector at FDLE, about mail she had received in the pornography investigation.

   
   

6. Due to concerns of the State Attorney's Office that evidence obtained in the pornography investigation may have been tainted due to it having been obtained illegally from mail delivered to the bookstore, Respondent's supervisor directed her in April, 1986, to prepare a memorandum explaining all of the mail she had received from the confidential informant. Her memorandum stated that she had only received mail on two occasions in August, 1985. In fact, she had received mail on many more occasions.

   
   

7. FDLE procedures require an agent to write a report within five to fifteen days of receiving any evidence, and to tag such evidence and make it a part of such report by reference with an exhibit number. Respondent failed to follow these procedures, resulting in inaccurate and misleading reports to her supervisors and to the State Attorney's Office concerning this matter.

   
   

8. The credibility of law enforcement officers is critical to their ability to carry out their responsibilities, and the Respondent's actions in the pornography investigation demonstrate her lack of credibility.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner alleges that Respondent has violated Section 943.1395(5),(6), Florida Statutes, by failing to maintain good moral character in her actions as a police officer as required by Section 943.13(7). Since this case involves the possible loss of Respondent's livelihood as a police officer due to her decertification as a law enforcement officer, the Petitioner has the burden to prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The legal issue in this matter is whether Respondent's actions constitute a lack of good moral character which would thereby authorize the Petitioner to take disciplinary action against the Respondent. In the case of Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), the Court defined moral character to mean

    
    

    not only the ability to distinguish between

    right and wrong, but the character to observe the difference; the observance of the rules of right conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But... repeated acts in violation

    of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature... has determined should not be entrusted with a ... license.

    
    

12. The intent of a good moral character requirement in a professional licensing statute has been recognized by the Court as a means of protecting the public from licensees who have evidenced dishonesty in activities relating to their profession. Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981). However, the term is not restricted to the common law notion of moral turpitude. In Florida Board of Bar Examiners, re G.W.L., 364 So.2d 454, 458 (Fla. 1978), the Florida Supreme Court ruled that:

    
    

    A more appropriate definition of the phrase (good moral character) requires an inclusion

    of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

13. The Petitioner has adapted Rule 11B-27.002(4), Florida Administrative Code, which defines a police officer's failure to maintain good moral character to include the perpetration of an act which would constitute petit theft or making a false report to law enforcement, whether criminally prosecuted or not, as well as the perpetration of acts or conduct which causes substantial doubts concerning the officer's honesty.

14. Based upon these prior judicial interpretations of a good moral character requirement relating to the exercise of a licensed profession, as well as the Petitioner's Rule 11B-27.002(4), it is concluded that Respondent's activities do evidence her lack of good moral character, and do authorize the Petitioner to revoke her certification. She repeatedly made false statements and reports concerning a criminal investigation to personnel in the State Attorney's Office and FDLE. Her failure to follow established FDLE procedures for the preparation of investigative reports contributed to her misstatements about her having received mail from the bookstore through her confidential informant, and opening it herself. When her misstatements began to come to light, she tried to cover up her actions by having the mail redelivered back to the bookstore. Further, Respondent did knowingly and repeatedly use her FDLE telephone credit card to make personal long distance phone calls of a value exceeding $100.00. She falsified FDLE records associated with these calls by signing and noting case numbers next to these calls on the telephone bills in an attempt to cover up the fact that these were personal calls.

    
    

15. Respondent's actions constitute repeated violations of Section 943.1395(5),(6), Florida Statutes, in that she has failed to maintain the qualifications established in Section 943.13(7), which require that a law enforcement officer have good moral character.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent.

DONE AND ENTERED this 19th of May, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989.

APPENDIX

DOAH CASE NUMBER 88-4737

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1. 2-5. Adopted in Finding of Fact 2. 6-7. Adopted in Finding of Fact 3. 8-10. Adopted in Finding of Fact 4. 11-12. Adotped in Finding of Fact 5. 13-18. Adopted in Finding of Fact 6. 19-20. Adopted in Finding of Fact 7.

1. Adopted in Finding of Fact 6.

2. Adopted in Finding of Fact 7.

3. Adopted in Finding of Fact 8.

24-27. Rejected as unnecessary and cumulative.

28. Adopted in Findings of Fact 6 and 7. 29-31. Adopted in Finding of Fact 5.

32-33. Adopted in Finding of Fact 2.

34. Rejected as unnecessary.

35-37. Adopted in Finding of Fact 5.

38. Adopted in Finding of Fact 8.

Rulings on the Respondent's Proposed Findings of Fact:

1. Not a proposed Finding of Fact.

2. Adopted in Finding of Fact 1. A1. Not a proposed Finding of Fact.

A2-13. Rejected in Findings of Fact 4-7 and otherwise as simply a summary and argument on the evidence and not a proposed Finding of Fact.

B1-2. Adopted in Finding of Fact 2.

C. Not a proposed Finding of Fact.

COPIES FURNISHED:

Elsa L. Whitehurst, Esquire

P.O. Box 1489 Tallahassee, FL 32302

Maria Scruggs-Weston 1825- 45th Street, South St. Petersburg, FL 33711

Jeffrey Long, Director Criminal Justice standards

and Training Commission

P.O. Box 1489 Tallahassee, FL 32302

Daryl McLaughlin Executive Director

Department of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

Rodney Gaddy, Esquire General Counsel

P.O. Box 1489 Tallahassee, FL 32302

Docket for Case No: 88-004737

Orders for Case No: 88-004737