STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2769

)

CAMERON D. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on February 22, 1990, in Gainesville, Florida.

APPEARANCES

For Petitioner: Joseph S. White

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

For Respondent: Cameron D. Smith, pro se

1138 Northeast Second Avenue Williston, Florida 32696

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaint, are correct and, if so, what penalty should be imposed.

PROCEDURAL STATEMENT

On March 17, 1989, the Criminal Justice Standards and Training Commission filed an Administrative Complaint against Cameron D. Smith, alleging falsification of official records. Mr. Smith, on April 7, 1989, filed an election of rights form disputing the allegations of the complaint and requesting a formal hearing. The Division of Administrative Hearings scheduled and noticed the hearing. Upon the motion of the Respondent, and without objection, the hearing was twice continued.

Petitioner presented the testimony of David Gordon, Brett Wallen, Michael Yawn, Henry H. Hinson, and Wilson H. Martin and had two exhibits admitted into evidence. Respondent testified on his own behalf and presented the testimony of Randy Harold, Robert Giudice, Patricia Swan, Francis X. Cahoon, David Gordon, Steven Dyson, Michael Yawn, Woodrow Jones, L. D. Turner, and Gary I. Nordquist. Respondent had two exhibits admitted into evidence.

A transcript of the hearing was filed on March 12, 1990. Proposed recommended orders were not filed by either party.

FINDINGS OF FACT

1. At all times relevant to this case, Cameron D. Smith (hereafter "Respondent") was certified by the Criminal Justice Standards and Training Commission (hereafter "Petitioner") and was issued certificate numbers 04-86- 222-04 and 14-84-502-02.

   
   

2. During the months of August and September, 1987, the Respondent was employed as a correctional officer at the Gainesville Road Prison (now Gainesville Work Camp), a unit of the Department of Corrections (hereafter "DOC"). Each week, the Respondent worked from midnight to 8:00 a.m. Friday through Tuesday, and was off on Wednesday and Thursday.

   
   

3. On occasion, the Respondent has suffered recurring pain and incapacity related to a foot injury which occurred in June, 1986. At one time, surgery to correct misalignment of a bone in his foot was scheduled, but was cancelled when the condition improved. The Respondent has obtained medical treatment when such was warranted.

   
   

4. The DOC time sheets used by employees to record time worked include a code which identifies one option for leave time as "worker's comp" time. (The evidence does not establish any relationship between the DOC's "worker's comp" time and Chapter 440, Florida Statutes, setting forth the state's worker's compensation system. Therefore, the referenced statute has been disregarded in preparation of this Recommended Order.)

   
   

5. The Department of Corrections pay period is a biweekly period ending on the day that time sheets are due. The relevant pay periods are from August 7 to August 20, 1987, and from August 21 to September 3, 1987. Records which specifically identify the days worked by the Respondent at the Road Prison are in evidence.

   
   

6. During the period from August 7 through September 1, 1987, the Respondent claimed several days of leave time due to his continuing foot ailment, and marked "worker's comp" leave time on his DOC payroll time sheets.

   
   

7. On August 13, 1987, the Respondent became employed as a part-time stock clerk at a newly-opened Walmart store on Archer Road in Gainesville. The Petitioner introduced evidence indicating that the Respondent worked at Walmart on Mondays, Wednesdays, and Fridays from 5:00 p.m. to about 10:00 p.m. The Respondent asserted that worked on other days or at other times as his services were required. The greater weight of evidence, including Walmart payroll records, supports the Respondent. Walmart's payroll records demonstrate that, during some weekly periods, the Respondent worked total hours in excess of the approximate fifteen which would result were the Petitioner's evidence correct.

   
   

8. Walmart pays employees on the day following close of the weekly pay period. Pay is computed from employee time cards which are punched by a time clock at the start and finish of each employee's shift. The relevant pay periods are from the Respondent's employment on August 13 to August 14, 1987, from August 15 to August 21, 1987, from August 22 to August 28, 1987 and from August

   29 to September 4, 1987. Records which would specifically identify which days

   the Respondent worked at Walmart are not in evidence. The evidence identifies the number of hours worked during each pay period.

   
   

9. On August 17-18, 21-25, and 28-31, 1987, the Respondent claimed worker's compensation leave time from his DOC employment. The Respondent's supervisor refused to approve the time sheets which included the worker's compensation leave time. The supervisor believed that the Respondent was working at Walmart during the periods of time for which worker's compensation leave had been requested. Such claims are approved only when the employee is incapable of working.

   
   

10. The Administrative Complaint alleges that the Respondent falsified official records of the Department of Corrections. The apparent falsification of official records relates to the claim of "worker's comp" time on DOC time sheets during periods when the Respondent allegedly worked at his Walmart job. Upon reconciliation and review of payroll records from both employers, the evidence fails to establish that the Respondent worked at Walmart on dates when he was unable to work at the Road Prison.

    
    

11. From August 7 through August 14, 1987, the Respondent worked his full DOC shifts. He became employed by Walmart on August 13. For the period ending August 14, 1987, he worked 11.76 hours at Walmart.

    
    

12. From August 15 through August 21, 1987, the Respondent worked Saturday and Sunday at the Road Prison, claimed worker's compensation leave on Monday, Tuesday and Friday, and had Wednesday and Thursday off. For the period ending August 21, 1987, he worked 14.76 hours at Walmart. There is no evidence that the Walmart hours were worked on either Monday, Tuesday or Friday.

    
    

13. From August 22 through August 28, 1987 the Respondent did not work at the Road Prison, claiming five days worker's compensation leave, with the usual Wednesday and Thursday off. He worked no hours at Walmart during this pay period.

    
    

14. From August 29 through September 1, 1987, the Respondent claimed worker's compensation Saturday through Monday and worked his usual shift beginning on Tuesday. There is no evidence that the Respondent worked at Walmart during this period.

    
    

15. One witness testified to having seen the Respondent working on a ladder in a "Newberry Road" Walmart while claiming worker's compensation time, the implication being that, were the Respondent suffering a foot ailment, he would not be on a ladder working at Walmart. The witness was unable to identify the date upon which he saw the Respondent working at Walmart and did not document the information, but reported it to his supervisor. The supervisor was likewise unable to identify the date of the incident. There is no evidence that the Respondent was ever employed in a "Newberry Road" Walmart store, if one exists. The Respondent denied having climbed a ladder during his employment with Walmart. The Respondent's testimony related to his employment at Walmart is accepted.

    
    

    CONCLUSIONS OF LAW

    
    

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

17. In a license revocation proceeding, the agency has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987). In this case, the burden has not been met.

    
    

18. Paragraph number 2 of the Administrative Complaint filed in this case alleges as follows:

    
    

    On or about dates between August 3, 1987 and September 1, 1987, Respondent Cameron D. Smith, did then unlawfully and knowingly while employed as a correctional officer, falsify official records of the Florida Department of Corrections.

    
    

19. At the hearing, it became clear that the alleged falsification of official records related to the Respondent's alleged employment at Walmart while on extended worker's compensation leave from his employment with the Petitioner. It has not been established by clear and convincing evidence that the Respondent actually worked at Walmart on days when he was unavailable to work as a correctional officer. The evidence fails to establish that the Respondent unlawfully and knowingly falsified official records.

RECOMMENDATION

Based on the foregoing, it is hereby

RECCOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order dismissing the Administrative Complaint against Cameron D. Smith.

DONE and RECOMMENDED this 10th day of April, 1990, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 10th day of April, 1990.

COPIES FURNISHED:

Joseph S. White

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

Cameron D. Smith

1138 Northeast Second Avenue Williston, Florida 32696

James T. Moore Commissioner

Post Office Box 1489 Tallahassee, Florida 32302

Jeffery Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 89-002769

Orders for Case No: 89-002769