STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 03-2478PL

)

MICHAEL D. ELY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on October 15, 2003, in Pensacola, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Roy M. Kinsey, Jr., Esquire

Kinsey, Troxel, Johnson & Walborsky, P.A.

438 East Government Street Pensacola, Florida 32502

STATEMENT OF THE ISSUE

Whether the Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 20, 2003, the Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issued an Administrative Complaint against the Respondent. Such complaint alleged that the Respondent had violated provisions of Florida law which require a certified law enforcement officer to maintain the qualifications set forth in Section 943.13(7), Florida Statutes (2001). More specifically, the complaint alleged that the Respondent had used his official position as an employee of the Escambia County Sheriff's Office to inappropriately intimidate a private citizen, had used resources available to him as a deputy sheriff to run checks on his girlfriend and others, had inappropriately disclosed information regarding an arrest warrant, and had inappropriately disclosed information regarding an investigation. According to the Petitioner, such acts demonstrate the Respondent lacks good moral character.

The Respondent disputed the material allegations of fact

and timely filed an Election of Rights that sought a formal administrative hearing in connection with the charges.

Accordingly, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 9, 2003. Thereafter, the matter was promptly scheduled for hearing but was continued on Respondent's unopposed motion.

At the hearing, the Petitioner presented testimony from Respondent, Jennifer Tyson, Patty Clark, Dan Faircloth, Pat Spears, and Paul Hawke. The Petitioner's Exhibits numbered 1-

4 were received in evidence. The Respondent objected to Petitioner's Exhibit 2 on the basis of hearsay. Hearsay, while admissible in an administrative proceeding for the purpose of supplementing or explaining other evidence, shall not be sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. See § 120.57(1)(c), Fla. Stat. (2003).

The Petitioner requested official recognition of Florida Administrative Code Chapter 11B-27. Such request was unopposed by the Respondent and was granted. Additionally, the parties stipulated to the certification status and the Respondent's pertinent employment history.

The transcript of the proceeding was filed with the Division of Administrative Hearings on November 13, 2003. The parties were to have filed proposed recommended orders within

10 days of that date. The Respondent filed an unopposed request for an extension of time to file proposed orders. That motion was granted and the parties were granted leave until December 5, 2003, to file their proposed orders. All parties timely filed proposed recommended orders that have been fully considered in the preparation of this Recommended

Order. Based upon the foregoing, the Recommended Order is due in this cause on or before January 5, 2004. Findings related to acts or omissions outside the scope of the Administrative Complaint are included solely for purposes of aggravation or mitigation of the penalty in this cause. Otherwise, such findings would be deemed immaterial to the charges.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers.

2. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822.

3. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county.

4. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown.

5. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts."

6. Shortly after beginning his association with Ms.

   
   

   Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on

   September 21, 2002.

   
   

7. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He

   further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator.

8. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6.

9. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter.

   If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority.

10. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for

    himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again.

11. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good."

12. More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could

    have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be.

13. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown.

14. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations.

15. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown.

16. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

18. As the proponent of the affirmative, the Petitioner bears the burden of proof in this case to establish, by clear and convincing evidence, the allegations of the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Section 943.13, Florida Statutes, provides, in pertinent part:

    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.

    
    

20. "Good moral character" as used by the statute contemplates the ability to distinguish between right and wrong, as well as the character and conviction to abide by that difference. Moreover, persons who hold positions of trust, such as law enforcement officers, are held to the highest standard of behavior. It is critical that law enforcement officers demonstrate through their behavior honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

21. Florida Administrative Code Rule 11B-27.0011, provides, in part:

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

       1. The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

       2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not…

       3. The perpetration by an officer of acts or conduct that constitute the following offenses:

          * * *

          2. Misuse of official position, defined by Section 112.313(6), Fla. Stat..

          
          

22. Section 112.313(6), Florida Statutes, provides:

    
    

    1. MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

23. Section 943.1395, Florida Statutes, provides, in

    
    

    part:

    
    

    1. 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).

       1. 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.

       2. For the purpose of implementing the penalties provided in subsections (6) and (7), the chair of the commission may appoint one or more panels of three commissioners each to determine probable cause. In lieu of a finding of probable

          cause, the probable cause panel may issue a letter of guidance to the officer.

          However, when an employing agency disciplines an officer and the officer's employment is continued or reinstated by the agency, a probable cause panel may review the sustained disciplinary charges and disciplinary penalty, determine whether or not the penalty conforms to the disciplinary penalties prescribed by rule, and, in writing and on behalf of the commission, notify the employing agency and officer of the results of the review. If the penalty conforms to the disciplinary penalty provided by rule, the officer and employing agency shall be notified, in writing, that no further action shall be taken. If the penalty does not conform to such disciplinary penalty prescribed by rule, the officer and employer shall be notified, in writing, of further action to be taken.

       3. An administrative law judge assigned to conduct a hearing under ss.

    120.569 and 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with,

    1. 943.13(4) or (7) must, in his or her 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 or she 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.

24. The disciplinary guidelines referenced above are found in Florida Administrative Code Rule 11B-27.005. For an act constituting a felony, whether prosecuted or not, the penalty recommended is revocation of certification. For an act that would be considered a misdemeanor, whether prosecuted or not, the penalty ranges from probation to suspension of the certification. And, for an act or conduct not constituting a crime (such as misuse of official position) the recommended penalty is suspension. Subsection (6) of the rule lists the aggravating and mitigating circumstances that may be applied:

    1. Aggravating circumstances:

       1. Whether the certified officer used official authority to facilitate the misconduct.

       2. Whether the misconduct was committed while the certified officer was performing other duties.

       3. The number of violations found by the Commission.

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, to include a prior Letter of Guidance or Letter of Acknowledgment.

       5. The severity of the misconduct.

       6. The danger to the public.

       7. The actual damage, physical or otherwise, caused by the misconduct.

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

       10. Whether the misconduct was motivated by unlawful discrimination.

       11. Any behavior constituting "domestic violence" defined by Section 741.28(1), Fla. Stat.

    2. Mitigating circumstances:

    1. The officer's employment status in a position requiring Criminal Justice Standards and Training Commission certification at the time of the final hearing before the Commission.

    2. The recommendations of character or employment references.

    3. The lack of severity of the misconduct.

    4. The length of time the officer has been certified by the Commission.

    5. Any effort of rehabilitation by the certified officer.

    6. The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.

    
    

25. The Petitioner has established by clear and convincing evidence that the Respondent failed to maintain good moral character. First, in continuing to associate with a person of questionable background and influence (after a superior officer warned him of such conduct) the Respondent demonstrated remarkably poor judgment. By allowing that person to so influence him that he would, under color of his official position, telephone a private citizen with a complaint and attempt to coerce that citizen so that a child and her parent would be satisfied is inexcusable. In so acting it is concluded that the Respondent violated Section 112.313, Florida Statutes.

26. Additionally, it is concluded that the Respondent inappropriately disclosed information regarding an arrest

    warrant to Ms. Brown. In so acting it is concluded the Respondent hindered, rather than assisted, the execution of an arrest warrant.

27. It is also concluded that the Respondent used resources available to him at the Sheriff's Office for personal purposes. He ran background checks on his girlfriend and her associates solely for personal reasons. While in some instances those checks did lead to arrests on outstanding warrants, the impetus was clearly his personal interest.

28. Prior to his involvement with the girlfriend, the Respondent had established himself as an excellent deputy. According to Lt. Spears, Respondent's supervisor, the acts complained of in this cause are the result of "a whole bunch of biology and a lot of bad judgment." Regrettably, the Respondent did not reverse his course of conduct, and by the time he disclosed the arrest warrant information to the girlfriend, according to Lt. Spears, many of his peers were unhappy with the Respondent's behavior.

29. With regard to the Patty Clark incident, it is undisputed that the Respondent used his official position and authority to facilitate the misconduct established in this record. The entire incident was avoidable. The Respondent allowed his relationship to cloud his judgment.

30. Specifically with regard to aggravating and mitigating circumstances in this cause, it is concluded that the Respondent offered no mitigating information other than his prior record with the Sheriff's Office as presented through the supervisor. Lt. Spears' comment that the Respondent is "salvageable," does not erase the acts of poor judgment established in this record. Moreover, how the Respondent plans to avoid another lapse in judgment is unknown. Had a single incident occurred perhaps the Respondent's conduct could be excused. In this case, however, his behavior it was a continuing series of acts. First, the Respondent associated himself with Ms. Brown and her friends of questionable reputation. Then, the Respondent knew about, and assisted with the delivery of, what he believed were controlled substances to her. Next, the Respondent discovered a crack pipe at his residence that he presumed was either Ms. Brown's or one of her friends. Sometime in the midst of all this the Respondent called Patty Clark and attempted to coerce her regarding the incident with Ms. Brown's child. And finally, the Respondent let Ms. Brown know that the Sheriff's Office was looking for her friend with an arrest warrant. If "biology" led to all of these independent acts of poor judgment, the Respondent may not be a good candidate for law

enforcement. The Petitioner established that the Respondent failed to maintain good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty.

S

DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-9675

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004.

COPIES FURNISHED:

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 Division of Criminal Justice

Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Roy M. Kinsey, Jr., Esquire

Kinsey, Troxel, Johnson & Walborsky, P.A.

438 East Government Street Pensacola, Florida 32502

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 case.

Docket for Case No: 03-002478PL

Orders for Case No: 03-002478PL