STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO.: 96-3193

)

MICHAEL E. MADDOX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 17, 1996, in Melbourne, Florida.

APPEARANCES

For Petitioner: Attorney Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Attorney Vincent G. Torpy, Jr.

Suite 505

930 South Harbor City Boulevard, Melbourne, Florida 32901

STATEMENT OF THE ISSUES

An administrative complaint dated July 20, 1995 alleges that Michael E. Maddox violated various provisions of Chapter 943, Florida Statutes, and rules of the Criminal Justice Standards and Training Commission, by knowingly submitting a false instructor certification application and by corruptly using or attempting to use his official position to obtain certification as a firearms instructor when he had not met the minimum requirements.

The issues for disposition in this proceeding are whether Michael E. Maddox committed those violations, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent Maddox disputed the allegations of the complaint and requested an evidentiary hearing. The case was referred to the Division of Administrative Hearings and was heard as described above.

At the hearing, Petitioner presented testimony of Burton Tew, Andrew “Andy” Seminick, Christopher LaMontagne and Francis Gallagher. Petitioner’s exhibits B,C,D,E,F,G,H,I,L,U and W were received in evidence without objection. Exhibit Q, a transcript of interview with Michael Mathias was taken under advisement and is now rejected as substantially uncorroborated hearsay. The

exhibit remains in the record for identification only, and has not been the basis for any finding of fact. See, section 120.57(1)(c), Florida Statutes (1996 Supp.).

Respondent Maddox testified in his own behalf, and presented exhibits 25,33 and 34, received in evidence without objection.

The transcript was filed on September 30, 1996, and the parties filed proposed recommended orders on October 31, 1996. These have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent, Michael Maddox (Maddox), was certified by the Criminal Justice Standards and Training Commission (CJSTC) on December 16, 1977 and was issued certificate number 110006.

2. For approximately the last six years Maddox has been employed by Brevard Community College as Director of Criminal Justice. In that position, also referred to as training center director, Maddox is responsible for the police academy, corrections academy, probations academy and the academic degree program. He is required to ensure that the academies meet standards of the CJSTC.

3. Andrew “Andy” Seminick has worked for the City of Melbourne police department as range master for nineteen and a

   
   

   half years. He is also employed by Brevard Community College as a firearms instructor and is certified as an instructor by the CJSTC. His employment at the community college is under the supervision of Maddox.

4. Sometime around October 1993, Maddox approached Andy Seminick about putting together a firearms instructor training course for folks who could not attend at the regular time and wanted to attend nights, weekends or as independent study. Maddox intended to take the course himself and told Seminick of his intention.

5. Seminick discussed the proposed class with two other firearms instructors, Chris LaMontagne and Eric Kennard, and they agreed that the hands-on requirements at the range made it impossible to just let people come on their own time. The course was set up to be conducted on November 8, 20 and 27, December 4 and 11, and a make-up class on December 18, 1993. With the exception of November 8, these dates all fell on a Saturday. The November 8th session was the only formal classroom session; the other classes were conducted at the firing range, with some indoor discussion, but mostly field work at the range in Cocoa, about twenty miles from the police academy.

   
   

6. Approximately twelve law enforcement officers from various agencies signed up for the course, including Michael Maddox. Maddox attended one class, the first, on November 8, 1993, but did not attend any other classes. He took the pre-test on the first day, but did not take the written test or on-the- range proficiency test at the end of the course.

7. Andy Seminick turned in completion certificates for the other enrollees in the course, but not for Maddox, as, in his opinion, Maddox did not satisfy the CJSTC-mandated requirements of the course, which included forty-four hours of course time, the preparation of a lesson plan and a proficiency evaluation.

8. Sometime between January and March 1994 Maddox approached Andy Seminick and asked about making up time he missed in the firearms class. Seminick agreed to work with him, but Maddox never followed up to complete the time with Seminick.

9. As Director of Criminal Justice Michael Maddox signed certificates of training for successful participants. After the firearms instructor course described above, he signed certificates of training for the participants, including himself. These certificates state that the named individual “...has successfully completed a program of study in Firearms Instructor-

   44 hours” (Petitioner’s exhibit G). The certificates are signed

   
   

   by Maddox, with a stamped signature by the president of Brevard Community College, Maxwell King, and a type-written date “December 11, 1993”.

10. Michael Maddox submitted an instructor certification application to the CJSTC on March 1, 1994. The one-page form application indicates that he was applying for certification in two additional subjects: human diversity and firearms. On this form he signed both as the applicant and as the recommending training center director. His signature as training center director appears below this statement:

    Having reviewed this applicant’s credentials and abilities as required by Rule 11 B-20, F.A.C., I recommend certification or certification renewal of this applicant.

    (Petitioner’s exhibit F)

    
    

11. Burton Tew, field specialist-research and training specialist for the CJSTC, approved Maddox’ application on March 10, 1994, based on the training center director’s signature and the certificates of training that he found in Maddox’ file, including the certificate described above for the firearms instructor course.

12. Prior to June 21, 1994, but after he approved Maddox’ firearms instructor certification, Burton Tew received a

    
    

    complaint that Maddox had not completed the course. He then conducted an investigation which led to the administrative complaint that is the subject of this proceeding.

13. Maddox admits that he attended only one day of class for the course. He contends that when he signed the application recommending his own certification he was fully aware of his own qualifications, including that he had actually taught firearms before in 1977, when he worked for a different agency in Stuart, Florida. He reviewed the contents of Andy Seminick’s course and was sure that he knew the course very well without having to attend the classes. Moreover, since he had also reviewed the written exam, he did not feel he should also take that exam as a student. Maddox also argued that, as training center director, he had the authority to excuse absences from class and to approve make-up work. For himself, he did both.

14. According to a desk calendar, firing range calendar and vehicle mileage log, Maddox was at the firing range on several occasions between August 1993 and March 1994. He does not contend that he actually received instruction from the course instructors on those dates and it is obvious that he had purposes, other than his own course instruction, when he attended

    
    

    the range, since the course at issue did not commence until November 1993.

15. Maddox concedes that not only did he attend only one class session and did not take the exam, there also were no lesson plans drawn up by him and no proficiency evaluation of him in his file for the course.

16. No one disputes Maddox’ competency in shooting firearms. He may even be competent to teach others. He did not, however, satisfy the requirements of the CJSTC-approved firearms instructor course, and his explanation of why he met the requirements is disingenuous. When he signed his own certificate and his own application in his capacity as training director he willfully used his official position to obtain a benefit to which he was not entitled.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), Florida Statutes.

18. In license discipline cases such as this, the petitioner must prove the allegations of its administrative complaint with evidence that is clear and convincing. Dept. of Banking and Finance, Div. Of Securities v. Osborne Stern and Co.,

    
    

    670 So.2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.2d 292

    
    

    (Fla. 1987).

    
    

19. The administrative complaint alleges that Maddox knowingly submitted a false instructor certification application and corruptly attempted to use his official position to obtain an instructor certification when he had not met minimum requirements for the certification established in Rule 11B-20, Florida Administrative Code. The actions of Maddox are alleged to have violated sections 943.1395(6) or (7), Florida Statutes, and

    Rules 11B-27.001(4)(c) and 11B-20.0012(1)(b), (c), (d) and (f),

    
    

    Florida Administrative Code; and he failed to maintain qualifications established in section 943.13(7), Florida Statutes which require an instructor and law enforcement officer have good moral character.

20. Sections 943.1395(6) and (7), Florida Statutes provide, in pertinent part:

    943.1395 Certification for employment

    or appointment; concurrent certification; reemployment or reappointment; inactive status; revocation; suspension; investigation.

    . . .

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established

       
       

       in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

       . . .

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which as been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       1. Revocation of certification.

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

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       5. Issuance of a reprimand.

21. The rules referenced herein are those rules in effect at relevant times in 1993 and 1994. Rule 11B-20.001(1), F.A.C. requires that persons applying for certification to instruct in commission-approved courses must complete and submit an application form and complete a commission approved instructor training course. Rules 11B-35.001(6) and (7), F.A.C. provide:

    1. Training Program Reporting Requirements:

       1. The training center director, or designee, shall maintain a copy of the course schedule and list of instructors

          
          

          on file at the training school.

       2. The training center director, or designee, shall determine the start and end dates of each certification course.

       3. The training center director, or designee, shall forward a completed Training Report form, CJSTC-67, as incorporated in 11A-1.006, F.A.C., to the Bureau of Standards within fifteen working days following the completion of a course. The Division will maintain student training files verifying completed courses.

       4. The training center director, or designee, shall insure that all records for all courses are maintained within the training school. Such records shall

          include the names of all attending students, grades, test scores and test materials, course content, instructor certifications, attendance records, course schedules, and any other pertinent information. Audits will be completed on each course.

    2. Each student shall be required to attend all sessions of any training course in which he/she is enrolled.

       1. No student shall be considered to have successfully completed a training

          course if he/she has any unexcused absences.

       2. If a student has any unexcused absences, the student must retake the training course.

       3. The training center director, or designee, must maintain accurate daily attendance records for each training course.

       4. The training center director has the authority to excuse student absences

and approve appropriate course make-up work.

22. Rule 11B-27.011(4)(c), F.A.C. provides:

(4) For the purposes of the Commission’s implementation of any of the penalties enumerated in subsection 943.1395(6) or

(7), F.S., a certified officer’s failure to maintain good moral character, as required by subsection 943.13(7), F.S., is defined as:

. . .

(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...

23. Rules 11B-20.0012(1)(b), (c), (d) and (f), F.A.C.

provide:

11B-20.0012 Revocation of Certification.

(1) The certification of a criminal justice instructor shall be revoked if the instructor fails to maintain any of the requirements set forth in 11B-20.001(1),(3) (a)-(b), F.A.C., or, who:

. . .

1. Willfully compromises or circumvents the trainee attendance requirements set forth in 11B-31.001, F.A.C.

2. Willfully compromises or circumvents the trainee performance requirements set forth in 11B-31.002, F.A.C.

3. Intentionally and materially falsifies criminal justice training documentation.

. . .

(f) Commits an act or acts establishing a lack of good moral character as defined in Rule 11B-27.0011(4), F.A.C.

1. There is no evidence that Respondent Maddox is guilty of violating section 943.13(4), Florida Statutes (relating to convictions of certain crimes) or that he intentionally executed a false affidavit. The application form which he submitted was

   
   

   not an affidavit. However, Petitioner met its burden of proof that Maddox willfully and intentionally represented that he successfully completed the requisite firearms instructor course when he did not. His misrepresentation was made in the patent abuse of his official position as training center director.

2. Counsel for Petitioner urges revocation of Maddox’ instructor certification and revocation of his law enforcement certification. Since Maddox did not qualify for the firearms instructor certification, that revocation is appropriate. Revocation of his law enforcement certification, however is not supported by the disciplinary guidelines established by the CJSTC.

3. Section 943.1395(8)(d), Florida Statutes requires adherence to the disciplinary guidelines and penalties described in sections 943.1395(6) and (7), Florida Statutes and in rules adopted by the commission. As cited above, sections 943.1395(7), Florida Statutes describes a range of penalties. Rule 11B- 27.005(3)(c), Florida Administrative Code, is more specific:

11B-27.005 Revocation or Disciplinary Actions; Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.

. . .

(3) When the Commission finds that a certified officer has committed an act which violates section 943.13(7), F.S.,

it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

. . .

(c) For 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, as described in 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b) above, the action of the commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation.

Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following:

Violation Penalty

. . .

5. Abuse of Official

Position Suspension

. . .

Maddox’ violation is mitigated by the lack of evidence of prior disciplinary actions, but is aggravated by his use of official authority and motivation of self-gain.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED that the Criminal Justice Standards and Training Commission enter its Final Order finding that Michael E. Maddox failed to maintain good moral character and failed to qualify for

certification as a firearms instructor, and imposing the following penalties:

1. revocation of his firearms instruction certification;

   
   

   and

   
   

2. suspension of his law enforcement certification for a

period of two years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1996.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996.

COPIES FURNISHED:

Paul D. Johnston, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Vincent G. Torpy, Jr., Esquire Suite 505

930 South Harbor City Boulevard Melbourne, Florida 32901

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003193

Orders for Case No: 96-003193