STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

KENNETH MANDERVILLE, )

)

Respondent. )

Case No. 03-0897PL

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on May 27, 2003, in Palatka, Florida, and conducted by Harry L. Hooper, Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie B. Binder, Esquire

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

For Respondent: Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether the actions charged in the Administrative Complaint in the case of Respondent Kenneth Manderville,

(Mr. Manderville), demonstrate that he does not have the moral

character to qualify as a correctional and law enforcement officer as provided in Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code.

PRELIMINARY STATEMENT

In an administrative complaint signed March 9, 2001, the Criminal Justice Standards and Training Commission (Commission) alleged that the Respondent, Kenneth R. Manderville, Jr., during the period June 25, 2000 through September 26, 2000, failed to maintain the qualifications required of correctional and law enforcement officers established in Section 943.13(7), Florida Statutes (2000). Specifically, it was alleged that

Mr. Manderville had sexual intercourse while on duty.

Mr. Manderville requested a formal administrative hearing and subsequently filed an Answer to the Administrative Complaint on April 4, 2001. Almost two years later, on March 13, 2003, the Commission requested that the Division of Administrative Hearings hear the case.

The matter was set for hearing on May 20, 2003, in Palatka, Florida. Subsequently it was rescheduled to May 27, 2003, and heard as scheduled.

Prior to the hearing Mr. Manderville moved to suppress any statements or evidence provided to the Putnam County Sheriff's internal affairs investigators. Before eliciting the statement

of October 2, 2000, Mr. Manderville, was given a "Garrity Warning," which informed Mr. Manderville that his testimony would not be admissible in a criminal proceeding and that he was required to cooperate in the investigation. A "Garrity Warning" refers to the case of Garrity v. New Jersey, 385 U.S. 493 (1967).

In Garrity, police officers were questioned with regard to traffic ticket "fixing." They were warned of their "Miranda rights" but were informed pursuant to a New Jersey statute, that if they did not answer questions with regard to the alleged ticket "fixing," they would be terminated from their jobs.

Fearing loss of employment, the officers gave statements. Subsequently, they were prosecuted in the criminal courts of New Jersey and their statements were used to incriminate them. On appeal, the U.S. Supreme Court held that the statements were not voluntary and could not be used against the officers in a criminal prosecution.

Mr. Manderville asserts that the state should be forbidden to use his statements against him in an administrative hearing where the result could be the loss of his certification as a correctional and law enforcement officer. The Garrity case, however, does not address the exclusion of statements, taken under the threat of employment termination, at subsequent administrative hearings.

Mr. Manderville claims support for his position can be found in the holding of State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d. 487 (Fla. 1973). In that case, a licensed real estate broker refused to file a statutorily required sworn answer to charges made against him in a professional disciplinary proceeding, and the statute provided for entry of a default if no answer was filed. The Florida Supreme Court held that filing the answer amounted to testimony, that the testimony was compelled under threat of license forfeiture, and that was held to be a severe enough sanction to invoke the constitutional protections against compulsory self- incrimination. The Court held that Mr. Vining's refusal to speak could not be the sole predicate for license revocation.

Mr. Manderville was not in the same situation as

Mr. Vining. Although termination of employment might result from his failure to answer questions, and perhaps the employment loss would be automatic should he not cooperate, he was not subject to losing his correctional and law enforcement certifications simply because of his refusal to talk. Whether or not Mr. Manderville spoke at the internal affairs inquiry, the Commission has the burden of proving the facts requiring license revocation by clear and convincing evidence.

Garrity provides an exclusionary rule for criminal cases.

Vining says that a citizen may not have his or her license or

certification revoked by default for failure to make a statement. Vining is not an exclusionary rule. Mr. Manderville failed to provide any reason for excluding his statement of October 2, 2000. Accordingly, it was admitted as evidence in this case.

The Commission offered and had admitted Petitioner's Exhibits 1, 2b, 2e, 2f, 2g, 2h, 2i, 2j, and 2g. The Commission called Betty Prevatt and David R. Stout as witnesses.

Mr. Manderville offered and had admitted Exhibits 1 through 5, 5a, and 6 through 10. Mr. Manderville called Sergeant Nicholas Jennette, of the Putnam County Sheriff's Office; Tangerlar Clark; Deborah Manderville; Ken Manderville, Sr.; Charles E. Owens; and the Respondent, Mr. Manderville.

A Transcript in this case was filed on July 3, 2003.

Proposed recommended orders were due July 14, 2003. Pursuant to a request by the parties, the time for submitting proposed recommended orders was enlarged to August 10, 2003. Both parties timely filed Proposed Recommended Orders and they both were considered in the preparation of this Recommended Order.

Citations that follow are from Florida Statutes (2000) unless otherwise noted.

FINDINGS OF FACT

1. Mr. Manderville holds correctional and law enforcement certificates issued by the Commission pursuant to the power

   vested in the Commission by Section 943.12(3). Mr. Manderville was employed as a deputy with the Putnam County Sheriff's Office for eight years, achieving the rank of sergeant. He was terminated for cause on October 11, 2000.

2. Pursuant to Section 943.12(3), the Commission is empowered to certify and to revoke the certification of officers.

3. Betty Prevatt (Mrs. Prevatt) is a resident of Palatka, Florida. On or about June 25, 2000, Mrs. Prevatt and her husband were involved in a domestic dispute. During the course of this dispute, her husband reached for his shotgun. As a result, Mrs. Prevatt fled her residence and ran down the adjacent highway. A helpful citizen rescued her by providing her with an automobile ride to the Putnam County Sheriff's Department.

4. Later in the evening of June 25, 2000, at the Putnam County Sheriff's Department, Mrs. Prevatt came into contact with Sergeant Manderville, during the course of filing a domestic violence complaint with the Putnam County Sheriff's Office. Subsequently, Sergeant Manderville caused the arrest and incarceration of Mr. Prevatt. Thereafter, Sergeant Manderville gave Mrs. Prevatt a ride in his patrol car to her home. While at the Prevatt home, Mrs. Prevatt told Sergeant Manderville that

   she did not wish to spend the night in her home so he told her to return to the Sheriff's Department in her automobile.

5. Mrs. Prevatt came to the Sheriff's Department, as instructed by Mr. Manderville, around 11:30 P.M.

   Mr. Manderville told her to follow him in her car. He led her to a house owned by Mr. Manderville's parents. They entered the house. Mr. Manderville was in uniform and on duty.

   Subsequently he removed his uniform and engaged in sexual intercourse with Mrs. Prevatt. Thereafter, he telephoned a woman's shelter and Mrs. Prevatt spent the night there.

6. Subsequently Mrs. Prevatt called Mr. Manderville, on more than one occasion during the course of the next few days, and inquired as to the process required to extract her husband from the Putnam County Jail. Eventually Mr. Manderville told her that he would help her win the release of her husband, and ostensibly to facilitate that purpose, instructed her to meet him at the Kentucky Fried Chicken restaurant after sunset. She did as requested and he told her to return to his parents' house. She complied with his direction.

7. Upon entering his parents' house, he insisted on having sexual intercourse again. She submitted. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Afterwards, she returned to the shelter in which she was then residing, which was located in St. Augustine.

8. On a subsequent occasion, Mr. Manderville asked

   
   

   Mrs. Prevatt to meet him at the Sheriff's Department, allegedly for the purpose of finishing paperwork regarding Mr. Prevatt.

   In response, she met him as requested. Thereafter, he took her to an interview room, had sexual intercourse with her, withdrew, and ejaculated on the carpet. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty.

9. Mrs. Prevatt's husband was released from jail a few days after his arrest but Mrs. Prevatt continued to live in the shelter. After a period of about two months, she went to the sheriff's office to retrieve her husband's shotgun. During a conversation at the Sheriff's Department, Mr. Manderville asked her to meet him after dark at the post office in Palatka. She did as asked. Mr. Manderville asked her to get in his patrol car and he then took her to his house in Mannville.

10. After arriving at Mr. Manderville's house in Mannville, he required her to disrobe, had intercourse with her twice, and took pictures of her bent over the hood of his patrol car, while nude. All of this occurred while he was on duty and, except during the sexual activity, he was attired in his uniform. This was the last time that they had sexual contact.

11. Almost three months later, Mrs. Prevatt again established a relationship with her husband. Mr. Prevatt began to inquire about Mrs. Prevatt's relationship with

    Mr. Manderville and she revealed what had occurred. On September 28, 2000, she gave a detailed report of the matter to Lieutenant Roger W. Sassaman and Detective Walter Perkins of the internal affairs section of the Putnam County Sheriff's Department.

12. On October 11, 2000, Mr. Manderville was discharged from his employment with the Putnam County Sheriff's Department.

13. Mr. Manderville asserted that Mrs. Prevatt's statements with regard to sexual activity were fabrications. He claimed that Mrs. Prevatt was infatuated with him. He asserted that she called him on many occasions in furtherance of what she wanted to be a continuing romantic relationship but that he had resisted her.

14. Mrs. Prevatt is a woman whose life has been beset with problems. At the time of the hearing she had endured an abusive marital situation for eighteen years. She has experienced problems maintaining steady employment and she has abused prescription drugs.

15. Nevertheless, it is concluded that Mrs. Prevatt's version of the story was, in pertinent parts, true, and that Mr. Manderville's version lacks credibility. In arriving at that conclusion, the following matters were considered:

    1. Mrs. Prevatt was able to describe with particularity the interior of Mr. Manderville's parents' house and the

       interior of Mr. Manderville's residence. If she had not been taken to these places, she would not have been able to glean these details. Moreover, Mrs. Debbie Manderville, who married Mr. Manderville in 1996, in her attempt to discredit

       Mrs. Prevatt's knowledge of the interior of the two houses, succeeded only in demonstrating that Mrs. Prevatt did have an accurate recollection of the interiors.

    2. Mrs. Prevatt was aware that Mr. Manderville was married to a nurse because she heard him call her at the local hospital from Mrs. Manderville's home. This call was undoubtedly made for the purpose of insuring that Mrs. Manderville would not intrude while he was present there with Mrs. Prevatt.

    3. Mrs. Prevatt knew that Mr. Manderville's entire body, except for the pubic area, was cleanly shaved, at times pertinent. Mr. Manderville confirmed this in his testimony. Had she not seen him in the nude, she would not have been aware of this.

    4. Mrs. Prevatt was able to point out a spot on the interview room carpet where she claimed semen residue would be found. Mr. Manderville, when questioned about this at the hearing, did not deny that semen residue was found at that exact spot she identified. He stated, however, that it was produced

    not from illicit activity with Mrs. Prevatt, but through self- abuse. His version regarding the presence of the semen was unbelievable.

16. Upon consideration of all of the facts and circumstances elicited at the hearing, it is found by clear and convincing evidence that on four occasions Mr. Manderville had sexual intercourse with Mrs. Prevatt while he was on duty, when she was emotionally distraught, and under circumstances where he used his power as a law enforcement officer to take advantage of her in a stressful situation.

    CONCLUSIONS OF LAW

    
    

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

18. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission that is asserting the affirmative and, therefore, the Commission has the burden of proof.

19. Because this case is penal in nature, the material allegations set forth in the Administrative Complaint must be proven by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Section 943.13(7), provides:

943.13. Officers' minimum qualifications for employment or appointment

On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional probation officer; and on or after October 1, 1986, any person employed as a full-time, part-time, or auxiliary correctional officer by a private entity under contract to the Department of Corrections, to a county commission, or to the Correctional Privatization Commission shall:

* * *

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

21. Sections 943.1395(5), (6), and (7), provide:

943.1395. Certification for employment or appointment; concurrent certification; reemployment or reappointment; inactive status; revocation; suspension; investigation

* * *

1. The employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7). If an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7), the employing agency must submit the investigative findings and supporting information and documentation to the commission in accordance with rules adopted by the commission.

   
   

2. 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).

   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. Any investigation initiated by the commission pursuant to this section must be completed within 6 months after receipt of the completed report of the disciplinary or internal affairs investigation from the employing agency or Governor's office. A verifiable complaint shall be completed within 1 year after receipt of the complaint. An investigation shall be considered completed upon a finding by a probable cause panel of the commission. These time periods shall be tolled during the period of any criminal prosecution of the officer.

   2. The report of misconduct and all records or information provided to or developed by the commission during the course of an investigation conducted by the commission are exempt from the provisions of

      s. 119.07(1) and s. 24(a), Art. I of the State Constitution and, except as otherwise

      provided by law, such information shall be subject to public disclosure only after a determination as to probable cause has been made or until the investigation becomes inactive.

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

      
      

3. 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.

1. Rule 11B-27.0011(4)(c) 5, Florida Administrative Code,

   
   

   provides:

   
   

   11B-27.0011(4). Moral Character.

   
   

   * * *

   
   

   (4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7),

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

   
   

   * * *

   
   

   (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

   * * *

   
   

   5. Engaging in sex while on duty, or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer.

   
   

2. Upon consideration of the foregoing statements of law, it is determined that Section 943.13(7) requires law enforcement and correctional officers to be of good moral character; Section 943.1395(6)(a) provides for the investigation into grounds for revocation; and Section 943.1395(7)(a) provides that a law enforcement and correctional officer's certification may be revoked for a violation of Section 943.13(7). Rule

   11B-27.0011(4)(c)5, Florida Administrative Code, defines moral character to engaging in sex while on duty, or at any time while acting under color of authority as a Commission-certified criminal justice officer.

3. Mr. Manderville engaged in sex while on duty and used his authority as a Commission-certified criminal justice officer to obtain sexual favors from Mrs. Prevatt. This was immoral and unacceptable behavior warranting revocation of his correctional and law enforcement certifications.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

Recommended that a final order be issued revoking the certification of Mr. Manderville as a law enforcement and correctional officer.

DONE AND ORDERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003.

COPIES FURNISHED:

Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services 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

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 should be filed with the agency that will issue the final order in this cause.

Docket for Case No: 03-000897PL

Orders for Case No: 03-000897PL