vs. ) Case No. 91-7936
WILLIAM H. COCHRANE, )
Respondent. )
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on March 3, 1992, in Port Charlotte, Florida. The following appearances were entered:
Whether Respondent has failed to maintain the qualifications of a correctional officer to have good moral character, as alleged in the Administrative Complaint.
Petitioner filed an Administrative Complaint against Respondent on June 3, 1991, charging that Respondent failed to maintain good moral character in order to maintain his certification as a correctional officer. Respondent denied the allegations, and demanded a formal hearing by filing an Election of Rights on July 25, 1991. This matter was referred to the Division for hearing on December 6, 1991. Petitioner filed a Motion for Leave to Amend the Complaint on February 20, 1992, which was granted without objection.
Following discovery by the parties, the formal hearing was held. At the hearing the Petitioner presented the testimony of three witnesses, and one exhibit was admitted in evidence. One exhibit offered was excluded. Respondent testified himself, and offered no exhibits in evidence.
Both parties agreed to file their proposed recommended orders within 10 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on April 8, 1992. Petitioner filed its proposals on April 17, 1992. Respondent has not filed proposed findings as of the date of this order. The proposed findings have been given careful consideration, and have been incorporated where appropriate. Specific rulings on proposed findings are addressed in the Appendix attached to this order.
The Respondent, William H. Cochran, was certified by the Petitioner as a correctional officer on November 20, 1989, and was issued corrections certificate number 33-89-502-05, and at all times relevant hereto was a certified officer.
The Respondent was employed as a Correctional Officer I officer by the Department of Corrections, and assigned to the Charlotte Correctional Institution, a state correctional institution, in Port Charlotte, Florida.
On or about February 17, 1990, the Respondent approached Ruth Rivera- Silva, another Correctional Officer I at the Charlotte County Correctional Institution, and engaged her in conversation.
The Respondent initiated the conversation with casual, small talk, and then presented Officer Rivera-Silva with a business proposition.
Officer Rivera-Silva and the Respondent knew each other, because they had gone through the academy together.
The business proposition the Respondent made to Officer Rivera-Silva consisted of her assisting him in bringing marijuana into the Charlotte Correctional Institute for sale to inmates.
The Respondent expressed a need for extra money for himself, and he wanted to help her obtain some extra money, because she was a divorced mother with two children.
The Respondent had been approached by inmates Smith and Bass who requested his help in bringing marijuana into the institution to them.
According to the Respondent's plan, he was supposed to meet with one of the inmate's friends and pick up the marijuana from her.
The Respondent would then give the drugs to Officer Rivera-Silva, and she would bring in approximately two pounds of marijuana a week by carrying the marijuana into the institution in her lunch box. Respondent indicated that no one ever checked the contents of the lunch boxes.
The lunch boxes were to be dropped off in the recreation department for inmates Smith and Bass to pick up.
The Respondent speculated that he and Officer Rivera-Silva would each make approximately one thousand dollars per week.
After the Respondent initially approached Officer Rivera-Silva in February 1990, requesting her assistance in this illegal plan, she immediately reported the details of the plan to Colonel Richardson of the CCI.
The Charlotte County Sheriff's Office was contacted, and an investigation into the matter was initiated.
An electronic recording devise was planted on Officer Rivera-Silva, and she had four additional conversations with the Respondent.
The electronic bugging system allowed Deputy Juan Acosta, the lead investigator, to listen to the conversation between the Respondent and Officer Rivera-Silva, and at the same time record the conversations on audio tape.
Deputy Acosta was present and listened to all four of these bugged conversations between the Respondent and Officer Rivera-Silva.
In the last monitored conversation on February 24th, the Respondent indicated that evening he would receive a call at the Babe Ruth Field, meet with the contact lady, and meet with Officer Rivera-Silva the next morning as planned.
Respondent was placed under close observation, and he was observed at the Babe Ruth Field, and, while there, he received and made a couple of phone calls. Then he returned to his residence.
The next morning, the Respondent left his residence, and traveled in the direction of the correctional facility. As he pulled into the parking lot of the institution, Deputy Acosta and the other officers confronted him.
A search of the car's interior was conducted, but no contraband was found.
The Respondent was escorted into the administration building where an interview was conducted.
Initially, the Respondent indicated that Deputy Acosta and the other officers had the wrong guy, and that they were making a mistake.
Deputy Acosta played the taped conversations for the Respondent, then he said, "You got me, I'll tell you what you need to know."
The Respondent stated that he was just saying those things, because he wanted to date Officer Rivera-Silva, and was trying to impress her.
At the hearing, Respondent indicated that this plan was completely Officer Rivera-Silva's idea.
The Respondent was not arrested, and was never criminally prosecuted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085-943.255, Florida Statutes (1989), and to discipline those licensed thereunder who violate the law.
The Petitioner has the burden to prove, by clear and convincing evidence, the violation Section 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 943.13(4), Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):
Have a good moral character as determined by a background investigation under procedures established by the Commission.
Section 943.1395(5) provides:
The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10) ...
Section 943.1395(6)(1989), Florida Statutes, establishes certain lesser penalties for violations in appropriate cases.
In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are entirely dissimilar to the instant case, the court's definition of moral character is significant.
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.
Such definition should be used in the case before this tribunal. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of "good moral character," in a case involving admission to the bar,
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.
See also, White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).
Rule 11B-27.011(4)(b), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:
(4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6) a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:
The perpetration by the officer of an
act which would constitute any felony offense, whether criminally prosecuted not, or
The perpetration by the Officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not, or
The perpetration by the office 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.
Two elements are necessary to establish the commission of criminal solicitation. These elements are set out in Section 777.04, Florida Statutes:
(1) The Respondent solicited Officer Rivera-Silva to commit introduction of contraband upon the grounds of a state correctional institution, and (2) During the solicitation, the Respondent encouraged or requested Officer Rivera-Silva to engage in specific conduct, which would constitute the commission of introduction of contraband upon the grounds of a state correctional institution. Pursuant to the Standard Jury Instruction approved by the Florida Supreme Court, "solicit" means to ask earnestly or try to induce the person solicited to do the thing solicited. Additionally, the Standard Jury Instructions states that "it is not necessary that the Respondent do any act in futherance of the offense solicited". In the case at bar, clear and convincing evidence established that on or about February 19, 1990, the Respondent did unlawfully solicit Officer Ruth Rivera-Silva to possess and/or introduce cannabis upon the grounds of Charlotte Correctional Institution.
The Petitioner presented direct evidence at the formal hearing through Officer Ruth Rivera-Silva and Deputy Juan Acosta which established that the Respondent did solicit Officer Rivera-Silva to engage in illegal conduct. The Respondent initially approached her on February 19, 1990, made a business proposition, and continued to discuss his plan, and requested her assistance in four subsequent conversations. The Respondent gave Officer Rivera-Silva a detailed description of his plan. Which included the Respondent meeting with the contact lady, and picking up the drugs. Then, he would deliver the drugs to Officer Rivera-Silva, and she would put the drugs in her lunch box, bring it
into the prison and leave the lunch box in the recreation department for inmates Bass and Smith to pickup. By bringing in approximately two pounds a week, they would each make about one thousand dollars per week. After these conversations, Officer Rivera-Silva believed that the Respondent was sincerely asking and encouraging her to help him bring cannabis into the Charlotte Correctional Institution. Furthermore, Deputy Juan Acosta testified that he listened to the four electronically monitored conversations between Officer River-Silva and the Respondent in which he heard the Respondent outlining the specifics of his illegal plan and requesting the assistance of Officer Rivera-Silva. Deputy Acosta also stated that in listening to these conversations, the Respondent's tone of voice was that of a serious nature. Their testimony is credible.
The Respondent's testimony at the formal hearing is not credible. The Respondent's testimony that this plan was completely Officer Rivera-Silva's idea, and that he never told her to bring contraband into the facility is ludicrous. After all, Officer Rivera-Silva is the person who reported this plan to her superiors immediately after the initial conversation. She agreed to cooperate fully with investigation by wearing a "wire" to record their conversations and simultaneously allow Deputy Acosta to listen to them. Deputy Acosta's testimony regarding the conversations corroborated Officer Rivera- Silva's testimony.
The Respondent also stated that he did not want to have anything to do with "Officer Rivera-Silva's plan". However, after their initial conversation, the Respondent had four additional conversations with Officer Rivera-Silva about this illegal plan where he discussed drug amounts, money and how the plan would work. The Respondent never reported any of this information to his superiors. At the formal hearing, the Respondent admitted that he suggested the idea of bringing the marijuana into the facility through her lunch box. Additionally, the Respondent admitted to saying those things that Deputy Acosta heard when he was confronted by Deputy Acosta and interviewed. At that time, the Respondent told Deputy Acosta that he only said those things to get Officer Rivera-Silva to go out with him. However, portions of the Respondent's testimony at the formal hearing contradicts his prior statement to Deputy Acosta. Thus, the Respondent's testimony at the formal hearing is highly suspect, because it varies from his earlier statement to Deputy Acosta.
The Respondent's conduct on or about February 19, 1990, constituted the crime of solicitation. Florida Statute Section 777.04(4)(c) makes solicitation a third degree felony if the offense solicited is a second degree felony. The offense solicited is the unlawful introduction of cannabis upon the grounds of any state correctional institution, and it is a second degree felony, pursuant to Section 944.47(2), Florida Statutes. Charlotte Correctional Institution is a state institution. Accordingly, the Respondent's conduct violated Rule 11B-27.0011(4)(a) which defines moral character violations as "the perpetration by an officer of an act which would constitute any felony offense whether criminally prosecuted or not, or . . ." According to this rule, the fact that the Respondent was never prosecuted for the crime of solicitation is immaterial. Additionally, the Respondent's conduct gave rise to substantial doubts concerning his honesty, fairness or respect for the laws of the state. Thus, his misconduct violated the good moral character standard as it is defined in case law and in Rule 11B-27.0011(4)(a) and (c).
Clear and convincing evidence has established that the Respondent committed misconduct which violated Rule 11B-27.0011(4)(a) and (c), Florida Administrative Code. According to the applicable case law and administrative rules, these violations establishes his lack of good moral character. The
position of correctional officer is one of great public trust and confidence. There can be no more basic public expectation than that those who maintain the incarceration of society's law breakers must themselves obey the law. City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1989).
Rule 11B-27.005(3)(a), Florida Administrative Code, requires a range of penalties from suspension to revocation for the commission of any act which constitutes a felony whether criminally prosecuted or not. The misconduct of the Respondent in this incident is serious because in a prison setting this type of conversation between two correctional officers is no joking matter, and it is looked upon quite seriously at the institution. This type of conduct cannot and should not be condoned in any manner. Therefore, the seriousness of the Respondent's misconduct merits revocation of his correctional officer certification.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good
moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED.
DANIEL M. KILBRIDE
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's proposed findings of fact. Accepted in substance: Paragraphs 1 - 32 Respondent's proposal findings of fact.
Respondent did not file proposed findings as of the date of this order.
James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
