STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-0154

)

MICHAEL R. HARRISON, )

)

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 April 10, 1997. The hearing was conducted by videoconference with the administrative law judge presiding from Tallahassee, Florida, and the parties, their witnesses and court reporter participating in Orlando, Florida.

APPEARANCES

For Petitioner: Amy Bardill, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: H.R. Bishop, Jr., Esquire

Florida Police Benevolent Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302-1239

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Michael R. Harrison, committed the violations alleged in an administrative complaint dated June 28, 1996, and if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

In its administrative complaint, Petitioner, Criminal Justice Standards and Training Commission (CJSTC), alleges that Michael R. Harrison (Harrison), a certified law enforcement officer, violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.011(4)(b) and/or (c), Florida Administrative Code, in that he failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character. Specifically, the Administrative Complaint alleges that:

1) On or about February 14, 1995, the Respondent, Michael R. Harrison, did then unlawfully and knowingly falsify a report to law enforcement officials concerning the probable cause for a traffic stop, to wit: he falsely stated that a vehicle check indicated “not on file,” even though the teletype operator indicated a name and address to which the vehicle was registered. The information given by Respondent became a basis for a warrant to arrest a person, Terry Reynolds.

2. On or about February 15, 1995, the Respondent, Michael R. Harrison, did then

unlawfully and knowingly make a false statement, concerning material matters, to members of the Orange County Sheriffs’ Office, with the intent to mislead said officials regarding a charging affidavit.

Harrison filed an election of rights form, contesting the allegations and requesting a formal administrative hearing.

At the hearing, CJSTC presented the testimony of McCarthy McCullough and Kenneth Mohler. Two exhibits, Petitioner’s Exhibits 1 and 2, were received in evidence without objection; and a third exhibit, an affidavit of certification, was filed and received into evidence after the hearing without objection.

Harrison testified in his own behalf.

The transcript was filed on April 21, 1997. After a request for extension of deadline, the parties filed their proposed recommended orders on May 30, 1997.

FINDINGS OF FACT

1. Michael R. Harrison is certified by the Criminal Justice Standards and Training Commission as a law enforcement and correctional officer, having been issued corrections certificate number 26101 on December 18, 1985, and law enforcement certificate number 26100 on July 2, 1987.

2. At the time of the incident at issue, Officer Harrison was employed as a deputy with the Orange County Sheriff’s Office.

3. On February 14, 1995, around 4:25 p.m., Harrison was parked in the woods on Willow Street in Zellwood, Florida, doing some paperwork. He observed two young black males engaged in what he thought was drug dealing. A yellow car pulled up to them, with a white male driving. The tag on the yellow vehicle was in Harrison’s plain view. Familiar with the area, and knowing that the white male did not live there, Harrison decided to run a check on the tag. The tag itself was slightly lopsided and not well-attached, and Harrison’s instincts made him suspicious of the situation.

4. As soon as Harrison gave the tag number to the teletype operator, the yellow car began to pull away from the scene. It was apparent that the driver had noticed Harrison’s vehicle. Harrison began pursuit of the yellow car as he waited for the teletype response on the tag.

5. By the time the tag response came over the radio, Harrison was totally absorbed with his pursuit. There was rush- hour traffic and the yellow car was on U.S. Highway 441, a busy thoroughfare. When Harrison made the stop and the driver produced his license, the computer check revealed that the license was restricted “for business purposes only.” After a brief inquiry that satisfied him that the suspect was not on his way home from work, Harrison arrested the driver on what he considered was a driver’s license violation.

6. As he waited for a back-up deputy and a tow truck for the yellow car, Harrison searched the car and found a small quantity of marijuana. Harrison then charged the driver with the drug offense.

7. In the meantime, and while Harrison was still pursuing the yellow car, the report on the suspected tag came back “negative” (a valid tag). The dispatcher reported that the tag “...should appear on a ’70 Ford, two-door, yellow in color.” This was the vehicle Harrison was pursuing. Moreover, the person to whom the vehicle was registered was the driver arrested by Harrison.

8. Later, the same day as the arrest, Harrison filled out the arrest report, a form titled “Charging Affidavit.” Under the narrative statement of facts to establish probable cause, Harrison included this statement: “I ran the tag and it came back no record found.” (Petitioner’s Exhibit 1)

9. Corporal McCarthy McCullough was reviewing reports at the end of her shift at Orange County Sheriff’s Office around 1 a.m., February 15, 1995. She read Deputy Harrison’s charging affidavit and questioned the sufficiency of his probable cause for the stop. She called him in to discuss the report. He tried to explain to her what “no record found” meant.

10. Harrison admits that when Corporal McCullough talked to him, he was aware he had made an error on the form. He

    wanted to talk to his supervisor because Corporal McCullough was new on the job, but the sergeant was at school. Harrison felt he needed to amend the charging affidavit, but never did as “things just started happening too fast, and I didn’t have the opportunity.” (transcript, p.31, ll. 5-7)

11. After Harrison left the shift, Corporal McCullough, still suspicious about the probable cause, ran the tag through the teletype herself and got the response described in paragraph 7, above. The next day she talked to her sergeant, and they got a tape of the message to Harrison from the communications center.

12. The tape reflects the exchange between Harrison and the dispatcher when he gave the tag number to the dispatcher and asked for a “28-29,” which is code for a vehicle registration and check to see if the car was stolen or wanted for any reason. The answer, as acknowledged by Harrison at hearing, was the “negative” with information describing the car and driver stopped by Harrison.

13. The statement by Harrison on his charging affidavit is patently false. Although no one formally administered an oath to him before he signed the form, his signature appears under this printed statement: “I swear and affirm the above statements are correct and true.” His signature is next to that of another law enforcement officer or correctional officer with

    this statement: “Sworn to and subscribed before me, the undersigned authority”. (Petitioner’s Exhibit 1) These statements and the title of the form itself were ample notice to Harrison that he was swearing to the truth of his handwritten report of the arrest and its probable cause.i

14. Aside from his specious argument that he was not really “swearing” to the document, Harrison’s defense is that he never intended to make a false statement. Instead, he never listened to the dispatcher’s response, as he was intent on pursuing his suspect and was concerned for his safety in the pursuit. His instincts were that the driver had intended to deal drugs back on Willow Street, an area where he did not belong, and that because the tag was awry, there was some problem with the vehicle.

15. When he was questioned by Corporal McCullough a simple admission that he had not listened properly to the dispatcher would have credited his excuse of a “mistake.” Instead, he stuck to his story and tried to explain what “no report” meant. His account of the incident is disingenuous and supports a finding that the report was intentionally false, perhaps from an overabundance of zeal to justify a stop that yielded two offenses.

16. After the incident was referred to Internal Affairs, Harrison was dismissed from his position. He had been a deputy

    for six years without any suspensions or discipline for duty work. He and his partner once shared a commendation of “deputy of the month.”

    CONCLUSIONS OF LAW

    
    

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

18. The Criminal Justice Standards and Training Commission must prove the allegations of its complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987). The Commission met its burden of proof.

19. Section 943.1395, Florida Statutes, provides 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 has 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.

       (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

       (b) The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

       ...

       (d) An administrative law judge assigned to conduct a hearing under s. 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or

       (7) must, in his recommended order:

       1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and (7) and the rules adopted by the commission for the type of offense committed.

       2. Specify, in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

       
       

       Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation of the penalty. Any deviation from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the administrative law judge. (emphasis added)

       
       

20. The sections referenced in Section 943.1395(6), Florida Statutes, above, relate to conviction of crimes of perjury or false statement and the intentional execution of a false affidavit related to employment or separation from employment. These are not relevant to the specific charges against Harrison.

21. Failure to maintain “good moral character” referenced in Section 943.1395(7), Florida Statutes, includes acts or conduct which constitute false statements. Rule 11B- 27.0011(4)(c)6., Florida Administrative Code. It also includes acts which would constitute criminal offenses, whether criminally prosecuted or not. Rule 11B-27.0011(4)(b), Florida Administrative Code.

22. The disciplinary guidelines are found in

    
    

    Rule 11B-27.005, Florida Administrative Code. The making of false reports that would constitute a misdemeanor offense merits revocation, according to Rule 11B-27.005(5)(b)4., Florida

    Administrative Code. The misdemeanors which are referenced in the rule include Section 837.05, Florida Statutes, which proscribes knowingly giving false information to any law enforcement officer concerning the alleged commission of a crime, and Section 837.06, Florida Statutes, which proscribes knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duty.

23. Under the disciplinary guidelines at Rule

    
    

    11B-27.005(5)(c)6., Florida Administrative Code, the making a false statement which does not constitute a crime may be punished by a range of penalties from probation to revocation.

24. While the agency proved by clear and convincing evidence that Harrison intentionally made a false statement, it did not specifically prove the elements of the misdemeanor offenses described in paragraph 22, above, and thus the most severe penalty is not mandated by rule.

25. Harrison’s offense was serious, was bad judgment, and evinced his calloused disregard of procedures for a legal arrest. There is no evidence of prior discipline in a ten-year law enforcement career; Harrison has already been penalized by losing his job. The most severe level of discipline, revocation, is unwarranted.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Criminal Justice Standards and Training Commission enter a final order finding that Michael R. Harrison knowingly made a false report, imposing one year’s suspension of his certificate and two years’ probation, with the further requirement that he complete appropriate retraining specified by the Commission.

DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida.

_

Hearings

Hearings

MARY CLARK

Administrative Law Judge Division of Administrative

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

this 27th day of June, 1997.

COPIES FURNISHED:

Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

H.R. Bishop, Jr., Esquire Post Office Box 11239

Tallahassee, Florida 32302-1239

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

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.

i These facts distinguish this case from Youngker v. State, 215 So. 2d 318 (Fla. 4th DCA 1968) where the notary failed to administer the oath and the defendant might reasonable have concluded he was signing something less than a sworn statement.

Docket for Case No: 97-000154

Orders for Case No: 97-000154