STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

v. ) CASE NO. 93-2654

)

GARY L. MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on August 17, 1993, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Steven G. Brady, Regional Legal Advisor

FDLE Division of Criminal Investigations

400 West Robinson Street, N209 Orlando, Florida 32801

For Respondent: Gary L. Mitchell, Pro Se

26070 Hayman Road

Brooksville, Florida 34602 STATEMENT OF THE ISSUES

The ultimate issue is whether the correctional officer certification issued to Gary L. Mitchell should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Criminal Justice Standards and Training Commission (the Commission) presented the testimony of Gary Mitchell and had Exhibits 1, 2, 4, and 5 admitted in evidence. Mitchell presented his own testimony.

The transcript of the proceedings was filed on August 31, 1993. The parties timely filed their proposed findings of fact and conclusions of law on or before September 10, 1993. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Mitchell was certified by the Criminal Justice Standards and Training Commission on May 8, 1992, and was issued Certificate No. 37-91-502-01.

   
   

2. On April 20, 1992, Mitchell applied for a position with the Sumter Correctional Institution.

   
   

3. The employment application asked if the applicant has ever been convicted of a felony or first degree misdemeanor. Mitchell answered "No" and certified that his answers were true, correct and complete.

   
   

4. Mitchell also had to file a supplemental application which asks the applicant to list all arrests or convictions, including sealed records. Mitchell filled in N/A. Mitchell again attested that there were no willful misrepresentations, omissions, or falsifications in the supplemental application.

   
   

5. Mitchell admits to having been arrested for involuntary battery on June 18, 1964; to having been arrested for strong-armed robbery on May 10, 1965; to having been arrested for disorderly conduct on December 1, 1965; to having been arrested for burglary on January 19, 1966; to having been arrested for deceptive practices on June 15, 1966; to having been arrested for purse-snatching on August 15, 1968; and to having been arrested for attempted deceptive practices on August 27, 1968. All these arrests for various misdemeanors and felonies occurred in Illinois.

   
   

6. Mitchell admits not having divulged the arrests from Illinois on his employment application to Sumter Correctional Institution, but he claims that the omission of his arrest history on the employment application was not willful. He further claims that he chose not to list the arrest for deceptive practice on September 28, 1966, because, even though he was sentenced to a year in jail, he was granted a retrial and was cleared.

   
   

7. Mitchell also says that he thought he was seventeen when he was arrested in 1962 and therefore did not have to list his arrests because at the time, he was a minor or youthful offender. However, he was twenty-one years old when he was arrested for the burglary and was twenty-three years old when he was arrested for purse-snatching and attempted deceptive practices.

   
   

8. Mitchell also claims that despite his criminal history, he did not disclose the information because he had gotten other agencies to run searches of his criminal history background and those searches showed he had no criminal history in Florida.

   
   

9. The evidence proves that Mitchell did not disclose his criminal history on the applications because he did not think the criminal history would show up if the agency ran a background check. The rest of his claims are rejected as being unworthy of belief.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

11. Section 943.1395(6), Florida Statutes, authorizes the Criminal Justice Standards and Training Commission, upon a finding that a certified officer has not maintained good moral character, to impose one or more of the penalties set forth in subsections (a)-(d). The Commission maintains that making a false statement, in writing, regarding an arrest record, in an employment application to a correctional facility is indicative of lack of good moral character.

    
    

12. Section 943.1395(5), Florida Statutes (1991), provides:

    
    

    (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13 (1)-(10) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

    1. The commission shall cause to be investigated any ground for revocation from the employing agency pursuant to s. 943.139 or from the Governor, and the commission may investigate verifiable complaints.

    2. The request for revocation, the investigation, and all information gathered from the investigation are exempt from chapter

       119 and, except for information otherwise exempted by law, shall be opened to the public only after probable cause is determined. If probable cause is not found, all identifying information exempted by law shall be deleted from the record before it is made available

       to the public.

    3. When an officer's certification is revoked in any discipline, his certification in any other discipline shall simultaneously be revoked.

    
    

13. Section 943.1395(6) Florida Statutes (1991), further states:

    
    

    1. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13

    2. , the commission may enter an order imposing one or more of the following penalties in lieu of revocation or certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years, . . .

       3. Successful completion by the officer of

          any . . . training or such retraining as deemed appropriate by the commission.

       4. Issuance of a reprimand.

14. Section 943.13, Florida Statutes (1991), establishes the minimum requirements for maintaining certification. Subsection (7) requires:

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

15. The rules of the Commission establish the specific acts which may form the basis for certification discipline. Rule 11B-27.0011(4)(b) & (c) are pertinent to this case:

    
    

    (4)(b) 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 117.03, 316.1935, 409.325, 552.22(3), (4), (5), (6),

    (7), (10), 784.011, 784.03, 784.05(2), 790.01

    (1), 790.10, 790.17, 790.18, 790.24, 790.27,

    794.027, 796.06, 796.07, 800.02, 800.03, 806.

    101, 806.13, 810.08, 812.014(2)(d), 812.016,

    812.081, 812.14, 817.235, 817.39, 817.49,

    817.563, 817.565, 827.04(2), (3), 827.05,

    827.06, 828.122, 831.30, 831.31(1)(b), 832.041,

    832.05(2), (4), 837.012, 837.05, 837.06,

    839.20, 843.02, 843.06, 843.08, 843.13, 843.17,

    847.011(1), (2), (4), 847.0125(2), 847.013(2),

    847.06, 847.07, 856.021, 870.01, 870.02,

    876.17, 876.18, 893.13(1)(a)3., (1)(d)3., (1)

    (g), (2)(a), (2)(b), 914.22(2), 944.35(3), 944.35(7)(a) 944.37, F.S., or

    
    

    (c) 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.

    
    

16. Mitchell's explanations of why he failed to acknowledge his arrest record are rejected as being unworthy of belief. The competent, substantial evidence supports a conclusion that Mitchell knowingly failed to disclose this criminal history because he thought he would not be caught. The supplemental application specifically states that all arrests must be indicated, even those which were sealed. The clear and convincing evidence shows that Mitchell made false statements, in writing, by falsifying a supplemental application for employment in regards to his arrest record. The making of such false statements constitutes a lack of good moral character.

    
    

17. In mitigation, it is recognized that all of the criminal offenses occurred more than twenty years ago and that Mitchell has not been guilty of similar behavior during the intervening years. It is also recognized that the sole basis for his discharge from employment by Sumter Correctional Institution was his falsification of the application and the supplemental application. Accordingly, the recommended penalty is reduced from revocation to a suspension and credit should be given for the time since his termination from employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission

enter a Final Order suspending the correctional officer certification of Gary L. Mitchell for eighteen months to be imposed retroactively to the September 1, 1993.

DONE and ENTERED this 29th day of September, 1993, in Tallahassee, Florida.

DIANE K. KIESLING

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 29th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2654

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and

Training Commission

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5-12(5); 13- 15(6); 16 & 17(7); and 19(8).

2. Proposed finding of fact 18 is irrelevant and unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Gary L. Mitchell

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3(1); and 4(4).

2. Proposed findings of fact 5 and 7-24 are unsupported by the credible, competent and substantial evidence.

3. Proposed findings of fact 1 and 6 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Gary L. Mitchell

26070 Hayman Boulevard

Brooksville, Florida 32602

Steven G. Brady

FDLE Regional Legal Advisor

400 West Robinson Street, Suite N209 Hurston Building, North Tower Orlando, Florida 32801

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 93-002654

Orders for Case No: 93-002654