DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 97-5355
ANTHONY R. JAMES, )
Respondent. )
Pursuant to notice, a hearing was held in Tallahassee, Florida, on October 6, 1998, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Richard D. Courtemanche, Jr., Esquire
For Respondent: Theodore E. Mack, Esquire
The issue in the case is whether the Respondent is quilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
On or about May 1, 1997, Respondent filed an Answer to Administrative Complaint disputing the allegations of fact, and requested an administrative hearing pursuant to Section 120.57, Florida Statutes. Thereafter, the case was forwarded to the Division of Administrative Hearings to conduct formal proceedings.
On October 6, 1998, a formal hearing was held after several continuances. During the hearing the following exhibits were admitted into evidence: Stipulation, Petitioner's Exhibits 1 through 3. At the hearing, the Commission presented no testimony of any witnesses beyond the exhibits filed. The Respondent testified on his own behalf.
The transcript of the proceedings was ordered by the parties, and was filed with the Division of Administrative Hearings on October 15, 1998. After the hearing, the parties were granted ten days to file proposed recommended orders. Both parties filed proposed findings which were read and considered.
The Respondent was certified by the Commission on February 28, 1992, and was issued Law Enforcement certificate number 122723. (Stipulation) The Respondent was employed as a Special Agent for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, from September 13, 1991, to October 18, 1996. (Stipulation)
Kenneth Hunter is employed as a deputy sheriff with the Leon County Sheriff's Office, and has been so employed since
July 5, 1989. Deputy Hunter has known the Respondent since 1991, when they attended law enforcement academy together. Deputy Hunter and the Respondent kept in touch over that period of time.
On June 17, 1995, at approximately 9:00 a.m., the Respondent called Deputy Hunter at his residence. The Respondent told Deputy Hunter that the Respondent's brother, Reverend Gregory James, had been beaten up by Colby Richardson, and that Richardson had stolen some money from his brother, a local minister. The Respondent told Deputy Hunter that the amount stolen was $1,500.00. Some of the money which was taken was money which Reverend James had withdrawn intending to give it to the Respondent.
The Respondent stated to Hunter that the prior evening he had spoken to Colby Richardson, and that Mr. Richardson had agreed to return the money taken from Reverend James. The Respondent asked Deputy Hunter to accompany him to Quincy, Florida, to find Richardson.
When Respondent called Hunter, the Respondent was on his way to Pensacola, Florida, for a professional course, and was driving his state-issued vehicle which was equipped with a police radio and strobe light. The Respondent picked up Deputy Hunter at Hunter's residence, and introduced Hunter to Reverend James, who was riding in the back seat of the vehicle.
Deputy Hunter asked the Respondent why his brother had not reported the robbery, and the Respondent stated that his brother was well known in the community, and did not want to make "a big stink" about it.
The Respondent, Deputy Hunter, and Reverend James traveled to Quincy, Florida. While in Quincy, the Respondent spoke to two females who knew Mr. Richardson, and gave the Respondent the telephone number of Mr. Richardson's girlfriend, Rosilyn Copeland.
The Respondent telephoned Ms. Copeland and asked for and received directions to her residence.
The Respondent, Respondent's brother, and Deputy Hunter traveled to Ms. Copeland's residence in Quincy, Florida.
The Respondent knocked on the door, and when
Ms. Copeland answered the door, introduced himself as "Agent James," and introduced Deputy Hunter as "Officer Hunter." The Respondent was wearing black pants, a black polo shirt, and a black baseball cap.
A conflict in the testimony exists regarding whether the Respondent, who was wearing a badge on a chain around his neck, removed his Special Agent badge from beneath his shirt and showed it to Ms. Copeland. Ms. Copeland later believed that the Respondent was a law enforcement officer who was looking for
Mr. Richardson to recover money Mr. Richardson had stolen from
Respondent's brother. The Respondent testified at hearing, and stated he was wearing a black shirt on the day in question, and his badge could have been visible.
Deputy Hunter gave a statement to the investigator. It is noted that Hunter was also outside his jurisdiction and was the subject or the potential subject of an investigation into his activities in association with the Respondent during this incident. Hunter stated that he never identified himself to anyone they met, and that the Respondent identified himself as “Agent James” and him as “Deputy Hunter.” Hunter stated that he informed the Respondent that it was inappropriate to introduce themselves as officers, and told him not to do that.
The Respondent continued to talk with Ms. Copeland about Mr. Richardson's location, and Ms. Copeland told them that she had driven Mr. Richardson to his mother's house.
The Respondent asked Ms. Copeland how he could get in touch with Mr. Richardson, and she stated that she would call Mr. Richardson. Ms. Copeland contacted Mr. Richardson on the telephone, and the Respondent, who was standing outside, entered the apartment and took the telephone from Ms. Copeland. The Respondent talked to Mr. Richardson and told him that he had better give back the money.
The Respondent told Deputy Hunter to talk to
Mr. Richardson. Mr. Richardson stated to Hunter that he wanted to return the money, but was worried about what would happen to
him. Deputy Hunter informed Mr. Richardson that nothing would happen to him, and that they only wanted the money back.
Mr. Richardson stated that he didn't have all of the money, but would have it by 1:00 p.m. The Respondent gave
Mr. Richardson a pager number with which to get in touch with him when Richardson had the money.
The Respondent, his brother, and Hunter left Copeland’s, and drove to the residence of Bruce (last name unknown), where the robbery had occurred. Bruce was not there when they arrived, but they met Bruce driving up as they drove away. In the conversation that followed, the Respondent identified himself as Agent James. The Respondent was confrontational with Bruce and accused him of setting his brother up. Bruce denied having been involved, but Hunter was suspicious of Bruce’s version of events.
Deputy Hunter told the Respondent that the facts did not sound right, and that they should report the matter to local law enforcement. The Respondent, Deputy Hunter and Reverend James went to the local police department; however, they were advised that the Gadsden County sheriff had jurisdiction. They did not seek assistance from the sheriff's department because of a personal conflict between Respondent's brother and the watch officer at the sheriff's department.
Thereafter, the Respondent called Ms. Copeland to find out where Mr. Richardson was living. The Respondent, Reverend
James, and Deputy Hunter traveled to the area known as Coon Bottom in the vicinity of State Road 12 in Gadsden County looking for Mr. Richardson. They encountered three boys, and the Respondent identified himself as Agent James. He asked them if they knew where Mrs. Richardson lived, and the boys pointed out her house.
The Respondent, Respondent's brother, and Deputy Hunter went to her house and asked her where her son, Colby, was. When she asked why they wanted to know, the Respondent identified himself as "Agent James" and stated that they were looking for Colby.
Ms. Richardson stated that she did not know where he was. Deputy Hunter wrote the Respondent's beeper number on the back of his (Hunter's) business cards, gave it to Ms. Richardson, and they left.
Later that day, when Colby did not contact them, Deputy Hunter again suggested to the Respondent and Reverend James that they report the offense to the local sheriff. They obtained the mobile number of an investigator with the local Sheriff's Office. Reverend James dialed the number and handed the phone to Deputy Hunter who advised the sheriff investigator of the information as he knew it.
On March 18, 1996, eight months after the incident, the Respondent gave a sworn statement to Internal Inspector John W. Harris of the Department of Business and Professional Regulation.
Prior to giving his statement, the Respondent was allowed to review the statements previously given by Ms. Copeland and Deputy Hunter. The Respondent was placed under oath and notified that giving a false statement under oath constituted perjury.
The Respondent stated to the investigator that he was in Tallahassee on June 17, 1995, on his way to a Narcotics Investigations Identification school in Pensacola. The Respondent stated that he and Deputy Hunter traveled to Quincy in his state vehicle to find the individual identified as Colby Richardson, who had robbed his brother. The Respondent stated that he was driving his police car, carrying his weapon and wearing his badge around his neck.
Respondent stated they went to Colby Richardson's girlfriend's house, and that he introduced himself as "James" and that he introduced Deputy Hunter as "Hunter." When the Respondent was asked if he introduced himself as "Agent James" to Ms. Copeland, he stated, "No, I just said James."
When asked if he had shown Ms. Copeland a badge, he stated, "No, I can't recall showing her a badge." When he was again asked if he reached inside his shirt and pulled out his badge to show her, he stated, "No, not that I can recall."
The Respondent was asked if he showed his badge to anyone while he was near Colby Richardson's mother's house. The Respondent stated that he did not show his badge to the juveniles nor to Ms. Richardson.
Respondent admitted that he wore his badge on a chain around his neck, and that he had it on his neck when he was talking to Ms. Copeland. The Respondent believes that
Ms. Copeland knew that he was wearing a badge because she could see the outline of the badge under his shirt.
There is no evidence and it is not alleged that Respondent knew at the time of the incident that his brother had not been robbed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.
Respondent is charged with violation of Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B- 27.0011(4)(c), Florida Administrative Code, in that he failed to maintain the qualifications of having good moral character.
Section 943.1395(6), Florida Statutes, provides that the commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(4), or who intentionally executes a false affidavit established in Sections 943.13(8), 943.133(2), or 943.139(2), Florida Statutes.
Section 943.13(4), Florida Statutes, provides that an officer shall not have been convicted of any felony or misdemeanor involving perjury or (making) a false statement, or have received a dishonorable discharge for the Armed Forces.
This is not applicable to the Respondent under the facts presented.
Section 943.13(8), Florida Statutes, provides that an officer execute and submit to his employing agency an affidavit- of-applicant form attesting to this or her compliance with subsections 1-7 of Section 943.13, Florida Statutes, relating to the officer’s qualifications. This provision is not applicable to the Respondent under the facts presented.
Section 943.133(2), Florida Statutes, provides that prior to the employment or appointment of any officer, the chief of the employing agency is required to attest to compliance by the employing agency with subsection (1) of Section 943.133(2). That section provides that the employing agency is fully responsible for the collection, verification, and maintenance of documentation establishing that the applicant complies with the requirements of Sections 943.13 and 943.131, Florida Statutes. This provision is not applicable to the Respondent under the facts presented.
Section 943.139(2), Florida Statutes, provides that in case of separation from employment or appointment, the employing agency shall execute and maintain an affidavit-of-separation for setting forth the facts and reasons for the officer’s separation, and transmit a copy to the commission. If the officer is separated for his or her failure to comply with Section 943.13, Florida Statutes, the notice (to the commission) must so specify.
Any officer who is separated from employment or appointment (under such circumstances) must be permitted to respond to the separation in writing to the commission setting forth the facts and reasons for the separation as the officer understands them. This provision is a reporting requirement for agencies employing officers. It is not a basis for disciplining an individual officer, although the officer might be disciplined by the Commission for the same reasons that the employing agency discharged the officer. In such a case, the Commission would have to allege and prove the underlying facts upon which discipline was based.
The Commission seeks to discipline the Respondent for failing to maintain good moral character. The Commission asserts two grounds which it asserts demonstrates the Respondent’s lacks good moral character. The first ground is that the Respondent misused his position, as defined by Section 112.313(6), Florida Statutes, contrary to law. The second ground is that the Respondent made false statements to the officer investigating the first allegation.
Regarding the second ground, the facts reveal that the Respondent was interviewed by the investigator eight months after the incident. The Respondent was allowed to review the affidavits of other participants to the events. Their affidavits stated that the Respondent had identified himself as a law enforcement officer and had shown his badge. After reviewing
their statements, the Respondent made and signed a statement that he could not remember if he had shown anyone his badge, and did not identify himself as a law enforcement officer. The Respondent did not deny trying to get back money allegedly taken by force from his brother while driving his police car, carrying his gun, and wearing his badge around his neck under his shirt.
The Respondent’s recollection of events and those of other witnesses differed regarding whether he used his identification or title. His statement about showing his badge is that he could not remember; however, he denied introducing himself as “Agent James.”
The facts show Hunter and Copeland swore that the Respondent identified himself as "Agency James." The Respondent swore that he did not. Using his official title was material to the allegations against him. Notwithstanding his admissions that he was driving his police car, carrying a weapon, and wearing his badge a round his neck under his shirt, the Respondent technically made a false statement of a material fact.
The other issue is whether his attempt to recover the money constitutes “misuse of public position” as defined by Section 112.313(6), Florida Statutes. Section 112.313(6), Florida Statutes, provides generally that no public officer shall corruptly use his official position to secure a special privilege, benefit, or exception for himself or others.
The Petitioner must show that Respondent’s attempting to recover the money was done with wrongful intent and was inconsistent with the proper performance of his public duties.
The facts indicate that the Respondent acted under color of his authority as a law enforcement officer. What he sought to do, i.e., recover the money, benefited someone. The remaining question is whether he acted “corruptly” as the term is defined in Section 112.312, Florida Statutes.
In the case of Blackburn v. State Commission on Ethics,
589 So. 2d 431, (1st DCA 1991), the court stated that it was quite apparent that the primary concern of the statements of legislative intent and purpose lies in avoiding conflicts of interest by public officials in matters under their charge, and eliminating private gain, directly or indirectly, by financial compensation or otherwise, in carrying out their official duties. See page 435, supra. In discussing whether it was a violation for a county commissioner to have a county employee draft a position paper which the commissioner utilized in her election advertising, the court found that this was “an incidental benefit” where the commissioner was otherwise entitled to have the paper prepared in the context of her official duties. The county commissioner argued to the court that her intent was two fold: to inform the public on a matter of importance to residents of the county and to assist in her reelection campaign. The court found the first purpose valid, and found no basis for
converting the valid purpose into an illegal act simply because the information was also used in a political campaign (personally beneficial).
The court found specifically that the definition of “corruptly” in Section 112.312(7), Florida Statutes, [now 112.312(9)] requires that the conduct complained of be done with wrongful intent and that the act or omission be inconsistent with the proper performance of the person’s public duties.
The act of initiating an investigation or other law enforcement activity without proper authority and with the intent to benefit one’s self or another constitutes a violation of Section 112.313, Florida Statutes, if the Petitioner shows that investigative activity was undertaken with wrongful intent. Demonstrating wrongful intent goes beyond a mere showing that the person initiated unauthorized investigative activity, and requires showing a mental resolve to do wrong.
In this case, the interaction of the Respondent and
Ms. Copeland and the interaction the Respondent and the juveniles is instructive in analyzing his conduct in light of the statutory issues. In both instances, Ms. Copeland and the juveniles were directly or indirectly aware of the Respondent’s status as a law enforcement officer.
The thrust of the contact with the juveniles was to find Mrs. Richardson, the mother of Colby Richardson. In doing so, according to Deputy Hunter, the Respondent identified himself
as an officer, and asked the juveniles if they knew what house Mrs. Richardson lived in. The boys responded by pointing out the house, and the trio proceeded to Mrs. Richardson’s. There was no indication of coercion or intimidation and the purpose of the Respondent's mission was not discussed with the boys. In this case, the Respondent’s actions gave no indication of investigative activity, and is not a misuse of position.
On the other hand, the thrust of the contact with
Ms. Copeland was to find Colby Richardson in order to recover the money. This intent and purpose was communicated by the Respondent to Ms. Copeland. His actions and manner were overtly coercive in obtaining her cooperation with his undertaking.
There was no authority for the Respondent to initiate this activity. The Respondent’s actions were undertaken under color of his authority as a law enforcement officer without proper authorization.
No evidence was offered that this act of the Respondent was inconsistent with the proper performance of his public duty; however, it is generally accepted knowledge that in a free society, a law enforcement officer may not initiate investigations or other similar law enforcement activities without proper authority. It is concluded that the Respondent’s interaction with Ms. Copeland was inconsistent with the proper performance of his public duties. The last element of proof is whether the Respondent’s acts were done with wrongful intent.
There are no cases cited which clarify the meaning of “wrongful intent.” Wrongful is defined by Webster’s Dictionary as “wrong, unjust, unlawful, and illegitimate,” and intent defined as “the state of mind with which an act is done.” Acting with wrongful intent is acting with a state of mind to do a wrong, unjust, unlawful or illegitimate act. It is beyond negligence, and requires the active mental resolve to do wrong.
In this case, according to Hunter’s testimony, he cautioned the Respondent not to use his title after he introduced himself and the other to Copeland. Having already asserted himself as a law enforcement officer, the Respondent could not “take it back.” However, he continued to conduct himself in an officious manner with Copeland and did not break off the encounter. After leaving Copeland’s, the Respondent continued to seek Richardson. These acts were intentional and with knowledge he was acting improperly after Hunter’s warning. His actions were intentionally wrong, or "corrupt" under the law. The Respondent’s acts after Hunter’s warning constituted misuse of his public position, and thereby a failure to maintain good moral character contrary to Section 743.1395(7), Florida Statutes.
The Commission’s guidelines for disciplinary action indicate that the other disciplinary and remedial actions taken by the individual’s employing agency should be considered in arriving at an appropriate penalty. In this case, the Respondent was discharged. This is a severe penalty, but not remedial.
Clearly, the Respondent’s actions were inconsistent with basic law enforcement knowledge.
The Petitioner proved that the Respondent made a false statement about a material issue to Inspector Hess and that the Respondent misused his position.
In mitigation, the facts show a technical violation of the false statement provision in a sworn statement in which the Respondent was otherwise truthful and cooperative. The Respondent was discharged from his position and there was no evidence of prior discipline. Further, there was no significant impact upon the persons with whom the Respondent interacted.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, (1995), and that Respondent's certifications be suspended for a period of twelve months and until he presents evidence to the commission that he has taken such courses as the commission may direct on professional responsibility.
DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998.
Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement
Theodore E. Mack, Esquire Powell & Mack
A. Leon Lowry, II, Director Criminal Justice Standards
and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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 should be filed with the agency that will issue the final order in this case.
