STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6319

)

GLENN S. EDWARDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in the above-styled matter before J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, on September 22, 1989 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: John Rosner, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Glenn S. Edwards, pro se

4694 Cherry Road

West Palm Beach, Florida 33407 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.

PRELIMINARY STATEMENT

The Administrative Complaint filed by the Petitioner seeks suspension or revocation of the Respondent's certification as a correctional officer in the state of Florida. As grounds therefore it is alleged that on or about August 27, 1986, Respondent did "unlawfully actually and intentionally touch or strike a two year old child against the will of said victim and with sufficient force to cause the victim to suffer bruises" in violation of Section 943.1395(5) and (6), Florida Statutes, and that Respondent thereby has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, requiring a correctional officer to have good moral character. Respondent timely requested a hearing on the allegations pursuant to Section 120.57, Florida Statutes.

Prior to the hearing, Petitioner filed a Motion for Leave to Amend Administrative Complaint in order to include an additional allegation that on or

about March 2, 1989, Respondent did "unlawfully actually and intentionally touch or strike a five year old child against the will of said victim and with sufficient force to cause the victim to suffer bruises." Respondent did not object to Petitioner's Motion and the Motion was granted by verbal order at the commencement of the hearing.

At the hearing, Petitioner presented the testimony of seven witnesses: Nellie Tillman Robinson, a protective investigative supervisor with the Department of Health and Rehabilitative Services (HRS), Glenn Brown, a friend of the Respondent; Paul Gish, a police officer with Palm Beach County Sheriff's Office; Tom Karnes, who at the pertinent time was a protective investigator with HRS; Debra Merritt Yohem, a school teacher of one of the children involved; Dan Lort, a sergeant with the Palm Beach County Sheriff's Office and Rod Phillips, who at the pertinent time was an internal affairs investigator/detective with the Palm Beach County Sheriff's Office. The Petitioner offered 10 Exhibits into evidence all of which have been accepted. 1/ Petitioner's Exhibit 5 was a tape recording of a statement given by Respondent to the Internal Affairs investigator for the Palm Beach County Sheriff's Department. At the hearing, ruling was reserved as to the admissibility of the tape because there was some question as to whether the Respondent had unsuccessfully attempted to invoke his fifth amendment privilege against self incrimination prior to giving the statement. However, Respondent testified at the hearing and confirmed all of the facts contained in the taped conversation. Therefore, Respondent has effectively waived his fifth amendment privilege.

Respondent testified on his own behalf at the hearing and also presented the testimony of Glenn Brown and Elaine Burton Edwards ("Ms. Burton"). Ms.

Burton was recently married to the Respondent. At the time of the allegations alleged in the Administrative Complaint and the amendment thereto, Ms. Burton was not married to Respondent but was residing with him. She is the mother of the child involved in the first incident alleged in the Administrative Complaint. Respondent offered 15 Exhibits into evidence all of which were accepted except Respondent's Exhibit 7 which was a self-serving letter from the Respondent to the Palm Beach County School Board and was not relevant to any issues in this case and Respondent's Exhibit 14 which was a series of photographs which were irrelevant to any issues in this proceeding.

A transcript of the proceeding has been filed and both parties have filed posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact:

1. The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 11, 1983 and issued Certificate Number 502-3844.

   
   

2. The Respondent was a correctional officer with the Palm Beach County Sheriff's Office beginning in January 1983.

   
   

3. On August 27, 1986, the Respondent resided with Ms. Burton (who has subsequently married Respondent and is now known as Elaine Burton Edwards) and

   two of her children. One of her children, Karl McInis ("Karl") was twenty three months old at the time and he was in the process of being toilet trained.

   
   

4. On August 27, 1986, the Respondent discovered that Karl had "messed" on the floor and/or in his pants.

   
   

5. The Respondent felt that the child's actions were deliberate and that the child needed to be disciplined. Therefore, Respondent struck the child fives times with a leather belt. There is a dispute as to the type and size of the belt used. While Petitioner contends that Respondent used his heavy Sheriff's Deputy belt, the greater weight of the evidence indicates that Respondent used a typical men's trousers belt.

   
   

6. As a result of the discipline described in paragraph 5 above, Karl suffered bruises on his buttocks and legs. Subsequent to the incident, the child was removed from the home by HRS. He currently resides out of state with his grandparents.

   
   

7. Criminal charges were brought against Respondent after HRS reported the incident to the police. However, after Respondent successfully completed a counseling program as part of a pre-trial intervention program, the charges were nolle prossed on November 10, 1988.

   
   

8. As a result of his arrest, Respondent was suspended from his job at the Palm Beach County Sheriff's Department pending the outcome of the criminal case. Respondent has not been reinstated.

   
   

9. After completing the counseling program, Respondent altered his methods of disciplining his children. On most occasions, Respondent has refrained from using corporal punishment and instead attempts to apply the assertive discipline procedures he learned in the counseling program. However, Respondent admits that on a few occasions when he felt the children did not respond to the assertive discipline techniques, he has resorted to corporal punishment.

   
   

10. On March 2, 1989, Respondent disciplined one of his children, Julius Edwards, by striking him five times on the palms of the hands with a belt.

    
    

11. At the time of the incident described in paragraph 10, Julius was five years old. Julius and at least one other sibling from Respondent's previous marriage were living with Respondent and Ms. Burton. Respondent punished Julius because he felt the child was deliberately engaging in a pattern of obstinate conduct in an attempt to be returned to the custody of his natural mother. That conduct included eating excessive amounts of food after being instructed not to.

    
    

12. During the punishment, Julius struggled and at least one of the blows landed on his arms. As a result of the punishment, Julius had bruises on his arms which measured approximately four inches long and one inch wide.

    
    

13. As a result of the corporal punishment administered by Respondent to Julius, Respondent was arrested and ultimately adjudicated guilty of a misdemeanor for violating Section 827.04, Florida Statutes (child abuse) on March 29, 1989 in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, in case no. 89-5869MMA08. As a result of this conviction, Respondent was required to undergo additional counseling.

    
    

14. While the bruises suffered by the children in the two incidents described above are significant cause for concern, neither of the children

    required medical attention. At the time of both of the incidents in question, none of the other children evidenced bruises, they all appeared well-fed and there was no other evidence of any neglect. Indeed, the evidence reflects that the Respondent is a dedicated and caring father. He is extremely concerned about the many negative influences that affect children in our society. As a result, he believes it is important for him to discipline the children in an attempt to ensure that they choose the right path in life. Respondent contends that he was raised with a similar type of discipline and finds it difficult to understand the commotion caused by his attempts to discipline his children in the manner in which he was raised. While his motives are good, he has used very poor judgment in certain situations and imposed excessive punishment given the age of the children and the nature of their behavior.

    
    

15. Respondent has aspired to be a law enforcement officer since his high school days. He has spent hundreds of hours as a volunteer for various school projects and programs involving children. He has strived hard to be a good role model and an active member of his community. However, he needs to temper his concerns and enthusiasm with more sensitivity to the rights of others.

    
    

16. There is no indication of any deficiencies or problems in Respondent's job performance. Indeed, the only evidence introduced regarding his performance as a law enforcement officer indicated that he was dedicated, concerned and responsible.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

18. In a disciplinary proceeding such as this case, the burden is upon the regulatory agency to establish by clear and convincing evidence the facts upon which its allegations of misconduct are based. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. Section 943.1395(5) empowers the Commission to revoke the certificate of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes.

    
    

20. Respondent's conduct purportedly violates Section 943.1395(5) and (6), Florida Statutes, in that Respondent has allegedly failed to maintain the qualification established in Section 943.13(7), Florida Statutes, which provides that an officer must have good moral character.

    
    

21. The term "good moral character" in Section 943.13(7), Florida Statutes, is not defined by statute. However, the rules adopted by the Commission provide guidance.

22. Pertinent to this case, Rule 11B-27.0011(4), Florida Administrative Code, provides:

    
    

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Subsection 943.13(7), is defined as:

    * * *

    1. The perpetration by the officer of an act which would constitute any of the following

       misdemeanor or criminal offenses, whether criminally prosecuted or not:

       Sections 827.04(2).

    2. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime....

    
    

23. "Moral character" has also been interpreted by the courts. In Zemour, Inc. vs. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977), the term "moral character" used in a different licensing statute was defined as:

    
    

    Moral character, as used in this statute, means 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, and 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.

    
    

    As noted in Zemour, supra, isolated acts do not necessarily indicate bad moral character.

    
    

24. The provisions of subsection (c) of Rule 11B-27.011(4) closely track the Florida Supreme Court's interpretation of good moral character. In the context of determining whether a candidate for admission to the bar possessed the requisite good moral character, the Supreme Court of Florida determined that a lack of good moral character could be shown not only by conduct historically found to constitute moral turpitude, but also the commission of acts or conduct which would cause a reasonable man to have substantial doubt about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation. Florida Board of Bar Examiners re: G. W. L., 364 So.2d 454, 458 (Fla. 1978).

    
    

25. "Good moral character" must be viewed and interpreted within the context of the facts and the profession in question. Where the profession is

    one which requires great public trust and confidence to function effectively, the consideration of what constitutes "good moral character" must be reviewed in light of what is reasonably expected of such professionals. Accordingly, law enforcement officers, by reason of the nature of their work, are expected to uphold a high standard for honesty, fairness, and respect for others' rights and the laws of this state. The public expects law enforcement officers to conduct themselves with the highest integrity.

    
    

26. The Petitioner has sustained its burden of showing that Respondent lacks good moral character. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987). Respondent's use of excessive force in disciplining his children causes substantial doubts concerning his respect for the rights of others and, therefore, established that he lacks the good moral character required by Section 943.13(7), Florida Statutes. Rule 11B-27.0011(4)(c), Florida Administrative Code; Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978) and Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (1st DCA Fla. 1977). Furthermore, Respondent's adjudication of guilt to a misdemeanor listed in Rule 11B-27.0011(4)(b) established that Respondent is not of good moral character as required by Section 943.13(7), and defined in the rule.

    
    

27. Although the Respondent has sought revocation of Respondent's certification under subsection (5) of Section 943.1395, Florida Statutes, (1989), subsection (6) of that statute gives the Respondent discretion to impose a less severe penalty after finding a certified officer has not maintained good moral character. 2/ This case warrants application of the less severe penalties outlined in subsection (6).

    
    

28. The disciplinary guidelines are set forth in Rule 11B-27.005. Under Subsection (3)(b) of that rule, Petitioner can impose a penalty ranging from probation to revocation against an officer who has perpetrated one of the misdemeanor offenses described in Rule 11B-27.0011(4)(b). Pursuant to Rule 11B- 27.005(3)(c), the Petitioner can impose a penalty ranging from the issuance of a reprimand to revocation against an officer whose actions or conduct causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation.

    
    

29. Subsection (4) of Rule 11B-27.005 sets forth the factors Petitioner can consider in deviating from the disciplinary guidelines. The factors listed in this rule are useful in evaluating the penalty that should be imposed. Applying the pertinent factors to the evidence in his case, it is clear that the Respondent did not use his official authority to facilitate the misconduct, the misconduct was not committed while the officer was performing his duties, the Respondent has been effectively terminated from his employment for over three years, Respondent's actions were not the result of a dishonest or corrupt character, there is no evidence of prior disciplinary actions against the Respondent, Respondent has demonstrated an effort to correct his conduct, there was no pecuniary benefit or self gain to the Respondent as a result of the misconduct and revocation of the Respondent's certification would result in precluding him from pursuing his livelihood in a career which has always been his life-long ambition and could detrimentally affect his family. All of these factors mitigate towards a less severe penalty. While the Respondent was clearly guilty of poor judgement in disciplining his children, his conduct does not warrant the loss of his career. He has already suffered significantly.

RECOMMENDATION

Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore,

RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order placing Respondent Glenn S. Edwards' correctional officer certification on probation for a period of two years and requiring him to complete an appropriate counseling program for parents while refraining from any further violations of Section 943.13(1)-(10).

DONE AND ENTERED this 10th day of April 1990, in Tallahassee, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April 1990.

ENDNOTES

1/ During the hearing, Petitioner failed to move its Exhibit 4 into evidence. Subsequent to the hearing, Petitioner filed a Motion for Admission of Evidence to correct this oversight. Respondent did not object to the Motion and it is hereby granted.

2/ While subsection (6) did not take affect until July 1, 1988 (after the date of the first incident alleged in the Administrative Compliant), the Administrative Complaint was not filed until after the effective date.

Moreover, applying this subsection does not in any way prejudice Respondent and, in fact, works in his favor in the event of a finding that he has not maintained good moral character.

APPENDIX

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order where Accepted or

Reason for Rejection

1. Adopted in substance in Findings of Fact 1.

   
   

2. Adopted in substance in Findings of Fact 3.

   
   

3. Adopted in substance in Findings of Fact 3.

   
   

4. Adopted in substance in Findings of Fact 4.

   
   

5. Adopted in substance in Findings of Fact

   1. However, the Petitioner's contention as to the type of belt used during the punishment was not established by competent substantial evidence.

      
      

   2. Subordinate to Findings of Facts 6 and 14.

      
      

   3. Rejected as a summary of testimony rather than a finding of fact.

      
      

   4. Rejected as a summary of testimony rather than a finding of fact.

      
      

   5. Rejected as a summary of testimony rather than a finding of fact.

      
      

   6. Rejected as a summary of testimony rather than a finding of fact.

      
      

   7. Adopted in substance in Findings of Fact 6.

      
      

   8. Adopted in substance in Findings of Fact 11.

      
      

   9. Adopted in substance in Findings of Fact 11.

      
      

   10. Adopted in substance in Findings of Facts

       10 and 11.

   11. Subordinate to Findings of Fact 12 and 14.

       
       

   12. Adopted in substance in Findings of Fact 13.

       
       

   13. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   14. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   15. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   16. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   17. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   18. Rejected as constituting a summary of testimony rather than a finding of fact.

       
       

   19. Rejected as constituting a summary of testimony rather than a finding of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order where Accepted or

Reason for Rejection

1. Rejected as hearsay that has not been establishes by competent, substantial evidence.

   
   

2. Rejected as irrelevant.

   
   

3. Adopted in substance in Findings of Fact 6.

4. Adopted in part in Findings of Fact 6. However, the reasons the child continues to reside with his grandmother were not established by competent substantial evidence.

   
   

5. Adopted in substance in Findings of Fact 11.

   
   

6. Rejected as constituting a summary of testimony and argument rather than a finding of fact. However, the subject matter is covered in Findings of Fact 14.

   
   

7. Adopted in substance in Findings of Fact 13.

   
   

8. Adopted in substance in Findings of Fact 9 and 14.

   
   

9. Rejected as irrelevant.

   
   

10. Rejected as constituting argument rather than a finding of fact.

COPIES FURNISHED:

John Rosner, Esquire

Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Glenn S. Edwards, pro se 4694 Cherry Road

West Palm Beach, Florida 33407

Docket for Case No: 88-006319

Orders for Case No: 88-006319