vs. ) CASE NO. 93-3299
JOHN N. GIRTMAN, )
Respondent. )
A hearing was held in this case in Orlando, Florida on October 21, 1993 before Arnold H. Pollock, a Hearing Officer with cthe Division of Administrative Hearings.
For the Petitioner: Steven O. Brady, Esquire
The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
By Administrative Complaint dated April 2, 1993, A. Leon Lowry, II, Director of the Division of Criminal Justice Standards and Training for the Florida Department of Law Enforcement, seeks to discipline Respondent's certification as a corrections officer because, it is alleged, on June 24, 1992, he unlawfully solicited or attempted to procure another to commit prostitution, lewdness, or assignation with himself in violation of Section 943.1395, Florida Statutes. Respondent thereafter disputed the allegations of fact contained in the Complaint and requested a formal hearing. This hearing ensued.
At the hearing, Petitioner presented the testimony of Chandra Davis, a process server; and Bryant K. Doyle, a police patrol officer with the Orlando Police Department. It also introduced Petitioner's Exhibits 1 and 2. Respondent testified in his own behalf and presented the testimony of Oscar Charette, Jr.,
a corrections officer with Orange County; and Mark Lacienski, a corrections sergeant with Orange County. Respondent also introduced Respondent's Exhibits A and B.
A transcript was provided and subsequent to the hearing, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the allegations herein, Respondent was certified as a corrections officer under Certificate No. 502-5580. The Criminal Justice Standards and Training Commission is the agency in this state responsible for the certification and regulation of the conduct corrections and law enforcement officers in Florida.
On June 24, 1992, at approximately 11:45 PM, Officer Bryant K. Doyle, a four and a half year veteran of the Orlando Police Department, came across Respondent sitting in his car in a warehouse district near the 400 block of West Grant Street in Orlando. He called for backup by another unit, but before that unit arrived, the Respondent's vehicle, in which Respondent was accompanied a female, came toward him. Doyle stopped and approached the vehicle and at that time recognized Respondent from a prior contact which had occurred several months earlier. At that time, Doyle had come across Respondent in a car late at night in the same general area, again accompanied by a female. At that time, Respondent claimed he was a janitor but also showed Doyle a corrections officer certification card.
On the second occasion, because Respondent had no identification with him, Doyle ran a routine identification check and found no prior arrest record. Though he did not know the person with Respondent, he claims Respondent implied she was a prostitute. She has an arrest record in Orange County, Florida but no evidence was produced as to what the arrests were for. Doyle asked the woman to step out of the car and, taking her behind the car, questioned her. Doyle claims she indicated Respondent had picked her up and had paid her $10.00 to fondle herself. She identified herself as Ms. McKie, who resided on Michael Avenue in Orlando. Doyle contends the interview of Ms. McKie lasted for four or five minutes.
Officer Doyle then called in the information he had received from Ms. McKie and placed Respondent under arrest for solicitation of prostitution. On each occasion, at the scene, according to Doyle, Respondent cried and said he was sorry, but at no time did he deny her version of the story. There is no evidence, however, that he was made aware of it.
Petitioner was unable to present the testimony of Ms. McKie. A subpoena issued to procure her presence at the hearing could not be served on her because the address given for her turned out to be a vacant lot. Ms. McKie had not been deposed previously, and, therefore, her testimony was not available.
Respondent, testifying in his own behalf, indicated on the first incident described by Doyle, he had been visiting his brother, who resides in a Department of Health and Rehabilitative Services sponsored group home for the mentally disabled, the Golden Age Retirement Home, in the general area near where he was stopped by Doyle. Respondent is his brother's guardian, and on the night of that first alleged incident, had been visiting him somewhat late in the
evening. During that visit, his brother introduced him to his girlfriend, whom he identified as Ms. McKay, and asked Respondent to take her to the store to pick up some items for him. After leaving the local convenience store where she purchased some snack items, on the way back she got sick and Respondent pulled over to the side of the road to allow her to relieve herself.
While he was sitting there, with the auto engine running, Doyle arrived and directed him to get out of the car. When he complied, Doyle questioned him and in response, Respondent indicated he was a janitor and a corrections officer. At this time, he claims, Doyle accused him of prostitution, though Respondent denied it. Though he did not arrest Respondent, Doyle allegedly told him at that time to stay out of the area in the future even though Respondent claimed to have a lot of relatives living there. Throughout this interview, Respondent claims, Doyle was hostile and threatening.
On June 24, 1992, Respondent, who was working the 6:30 AM to 2:30 PM shift, again visited his brother late in the evening. His visit was late because, after getting off work, he had to have some car repair work done and then took his wife to dinner. By the time they got back and he was ready to go, it was after 10:00 PM. However, because, he had to get his brother to sign some papers for the Social Security Administration, he decided to go even though it was late, and since his wife did not care to accompany him, he went by himself. On the way there, he saw a female walking on the street whom he recognized as a woman named Sally (McKie). He had known her for several years as a friend of his sister, but no idea she had an arrest record as a prostitute.
Ms. McKie apparently walked out in front of his car and he stopped. He told her he was going to visit his brother, but if her destination was anywhere near his, he would give her a ride. She accepted.
On the way, Ms. McKie indicated she was having some problems and began to get upset. She directed him into the warehouse area as a shortcut, but, for some reason, he claimed instinct, Respondent decided not to take it, turned around, and went back the way he had come. As he did so, however, he met Officer Doyle who stopped him and asked him for his driver's license which he did not have with him.
According to Respondent, Doyle had Ms. McKie get out of the car and go with him to the rear where, for a period which Respondent estimates as approximately thirty minutes he allegedly threatened her with arrest if she did not admit she was engaged in prostitution at Respondent's solicitation.
Respondent admits he did not hear the entire conversation and did not observe Doyle in his relationship with Ms. McKie, but he recalls the nature of the conversation. After speaking with McKie, Doyle came back to Respondent, had him get out of the car, and arrested him.
Respondent was not prosecuted on the charge for which he was arrested. A Nol Prosequi Order dated October 13, 1992 so indicates.
Even though Respondent notified his agency of his arrest, no action was taken against him by his supervisors. His appraisal report, dated June, 1993, for the preceding year which included the time of the incident in question reflects he exceeded standards, receiving 38 out of a possible 44 rating points. In that report he is described as an individual who can be depended upon to get the job done; who takes the initiative to insure those working for him have the requisite tools to do their job; accepts additional duties and puts every effort
into accomplishing a task; works well with others; and can be depended upon to be there when needed. His three prior performance appraisal records, covering the period from January, 1989 through January, 1992, also reflect ratings of either "exceeds standards" or "outstanding."
Respondent's supervisor, Sergeant Lacienski, and a fellow corrections officer and sometime subordinate, Officer Charette, both indicate Respondent has a good record and reputation within the corrections community for truth and veracity. According to Lacienski, even though Respondent's arrest was known within the correctional community, no one indicated any reluctance to work with him for that reason. This opinion is shared by Officer Charette, who asserts that Respondent's arrest for this incident had no effect on his work, and his effectiveness has not been diminished.
Respondent has worked with the Orange County Department of Corrections for more than eleven years, achieving the rank of corporal. While serving as a corrections officer over that period, he has, at various times, held various part time jobs such as security officer, psychic technician, nurse's aide, and, for a period, janitor with Duncan Janitorial Service. He has never received any type of disciplinary action during his corrections career.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Commission seeks to discipline the Respondent's certification as a corrections officer because, it alleges, he did not possess good moral character in that he "unlawfully solicit[ed], induce[d], entice[d], or procure[d] another to commit prostitution, lewdness, or assignation with him" and this alleged misconduct violated the provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c), F.A.C..
Section 943.13(7), Florida Statutes, provides that any person employed in this state as a full time correctional officer shall:
Have a good moral character as determined by a background investigation under procedures established by the Commission.
A lack of "good moral character" is defined in Rule 11B-27.0011(4)(b), F.A.C., as:
The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:
* * * Section 796.07, Florida Statutes.
This statutory provision makes it a misdemeanor in the second degree
to:
(3)(b): To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with him or another.
As used in this statute, the term "prostitution" means the giving or receiving of the body for sexual activity for hire; the term "lewdness" means any indecent or obscene act; and "assignation" means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.
Section 943.1395(5), Florida Statutes, requires the Commission to:
...revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1) - (10)....
Consistent with the terms of the statutes cited, the Commission has the burden to establish, by clear and convincing evidence, that the Respondent was guilty of the offenses alleged. It is concluded, therefore, that if the Commission established, by clear and convincing evidence, that Respondent, when stopped by Officer Doyle, had unlawfully solicited, induced, enticed, or procured his companion of the evening on June 24, 1992 to commit prostitution, lewdness or assignation with him, he would, by definition as found in Rule 11B- 27.0011(4), be guilty of a failure to maintain good moral character.
The real issue for resolution here, then, is not whether the conduct constitutes a failure of good moral character, but whether the Commission can, by clear and convincing evidence, establish that the relationship between Respondent and his companion at the time of the arrest, constituted the proscribed behavior.
Officer Doyle indicated that in the late evening hours on the date in question, he observed Respondent and a woman in Respondent's car in a lightly populated area of Orlando. He did not see them engaged in any activity other than sitting in the car. He recognized Respondent from a previous encounter under similar circumstances several months previously. He also claims the woman had an arrest record, but did not say for what she was arrested. He claims only that Respondent implied she was a prostitute.
Officer Doyle removed the female from the Respondent's vehicle and took her out of Respondent's hearing where, after an extended questioning, she allegedly told him she had been picked up and brought there by Respondent who offered her $10.00 if she would fondle herself. The female was not present to testify at the hearing in person and Officer Doyle's recitation of her out of court comments to him is hearsay evidence which cannot, by itself, form the sole basis for a finding of fact that Respondent did what he was alleged to have done. Doyle's supporting testimony that Respondent apologized to him, and that the woman had $10.00 in her possession does not, without much more, raise the standard of the evidence presented here to that of "clear and convincing."
By the same token, Respondent's comment to Doyle that he was a janitor during the previous encounter is neither incriminating nor false. Respondent denied he was engaged in any misconduct or inappropriate behavior on either occasion and gave an explanation for his presence each time. His credibility is in issue, therefore, and the testimony of his coworkers and supervisor, to the effect his reputation for truth and veracity is good and that these allegations have in no way diminished his effectiveness as a corrections officer, is given substantial weight.
Taken together, the evidence of Respondent's misconduct does not rise to the level of "clear and convincing" as is required to discipline his certificate as a correctional officer.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against the Respondent, John H. Girtman.
RECOMMENDED this 13th day of December, 1993, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3299
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
1. - 15. Accepted and incorporated herein.
1. - 3. Accepted and incorporated herein.
4. - 6. Accepted.
7. - 12. Accepted.
13. - 15. Accepted and incorporated herein.
16. & 17. Accepted.
18. & 19. Accepted.
Steven O. Brady, Esquire Florida Department of
A. Leon Lowry, II, Director Division of Criminal Justice
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
