DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. )
MICHAEL A. KELLY, )
Respondent. )
Case No. 03-4262PL
Pursuant to Notice, this matter came on for hearing before Robert S. Cohen, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on January 12, 2004, in Lake City, Florida.
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Whether the Respondent is guilty of failure to maintain good moral character, as required by Subsection 943.13(7),
Florida Statutes, and whether disciplinary action should be taken as a result.
The Petitioner filed an Administrative Complaint against the Respondent on August 8, 2003, charging the Respondent with making a false statement, which he did not believe to be true, under oath, in an official proceeding, in regard to a material matter, in violation of Section 837.02(1), Florida Statutes, and that the Respondent violated Section 943.1395(6) and/or (7), Florida Statutes, and Florida Administrative Code Rule 11B- 27.0011(4)(a), and that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that a Florida correctional officer have good moral character. The alleged lack of good moral character was demonstrated by the alleged false statement made by the Respondent under oath in an official proceeding.
On or about August 22, 2003, the Respondent completed an Election of Rights form in which he disputed the allegations of fact and requested a formal administrative hearing pursuant to Section 120.57, Florida Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on November 14, 2003.
At hearing, the Petitioner presented the testimony of Correctional Officer Martha Escobar, Unit Manager Joyce Joseph,
Recreational Coordinator Travis Smith, Correctional Officer Captain Ruth Shaw, Correctional Officer Maurice Gardner, and Correctional Inspector Paul French. The Petitioner offered Exhibits 1 through 6 into evidence, all of which were admitted. The Respondent presented the testimony of Correctional Officer Sergeant Donna Jean Murphy and testified on his own behalf. The Respondent offered no exhibits.
The parties were granted 14 days after the filing of the transcript, January 22, 2004, to file their proposed recommended orders. Both the Petitioner and the Respondent filed Proposed Recommended Orders, Petitioner within 14 days, and Respondent on February 13, 2004, after requesting and receiving an extension of time.
unless otherwise noted.
The Respondent was certified by the Petitioner on February 5, 1993, and was issued Correctional Certificate No. 134881.
The Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout Florida, pursuant to Sections 943.085 -
943.255, and is authorized to discipline individuals licensed thereunder who violate the law.
On November 28, 2002, Lake City Correctional Facility Correctional Officer Martha Escobar was approached by Inmate Aaron Smiley concerning his allegations of having fallen down the stairs the previous day as the result of his having been forced by the Respondent to carry six chairs up and down the stairs as a disciplinary measure.
The alleged incident had taken place nearly 24 hours before Inmate Smiley reported it to Officer Escobar.
Officer Escobar reported the statement on an incident report that she gave to her supervisor.
Officer Escobar believed that Inmate Smiley was telling the truth about the incident.
Inmate Smiley confirmed the facts previously stated to Officer Escobar to Captain Ruth Shaw who also completed a supervisory report.
Lake City Correctional Facility Inspector Paul French interviewed numerous correctional officers under oath and prepared a written report concerning the alleged chair-carrying incident.
Inspector French’s report covered the investigation of two charges: that the Respondent threatened Inmate Smiley with bodily harm if he told anyone about the alleged incident; and
that the Respondent was untruthful in his responses as to what occurred during and following the alleged incident of November 27, 2002.
No inmates who were listed as witnesses by Inspector French in his report were present to testify at the hearing.
Officer Escobar had personally witnessed inmates carrying chairs up and down the stairs for disciplinary purposes under the Respondent’s watch in the past.
Officer Escobar did not personally witness the alleged incident concerning Inmate Smiley.
Officer Escobar had never reported to her supervisors in the past that inmates had been forced to carry chairs up and down the stairs for disciplinary reasons.
Correctional Officer Joyce Joseph, who serves as a “mini warden” supervising the unit in which the alleged incident took place and another unit, spoke with the Respondent on one occasion about an incident involving an inmate under his watch carrying chairs up and down the stairs for disciplinary purposes.
Officer Joseph neither reported the chair-carrying incident involving the Respondent to her superiors nor did she personally write-up the Respondent for the incident.
Officer Joseph did not personally witness the alleged incident of November 27, 2002.
Travis Smith, the Lake City Correctional Facility Recreation Director, had been told in the past by an inmate that the Respondent had ordered him to carry chairs up and down the stairs as a form of discipline.
Mr. Smith never reported to his superiors the inmate’s statement that he had been disciplined by having been forced to carry chairs up and down the stairs.
Mr. Smith did not personally witness the alleged incident of November 27, 2002.
Captain Ruth Shaw received a report from her lieutenant, Phillip Mobley, that had been made by Officer Escobar concerning the alleged incident with Inmate Smiley on November 27, 2002.
Captain Shaw has a close personal relationship with the Respondent.
Captain Shaw had never witnessed the Respondent ordering inmates to carry chairs up and down the stairs as a form of discipline.
Captain Shaw did not witness the alleged incident of November 27, 2002.
Captain Shaw reported that Inmate Smiley told her he had tripped and fallen over chairs while carrying them up and down the stairs.
Correctional Officer Maurice Gardner had previous discussions with the Respondent concerning the Respondent’s disciplining of inmates by requiring them to carry chairs up and down the stairs.
Officer Gardner does not discipline inmates by having them carry chairs up and down the stairs.
Officer Gardner had witnessed inmates in the past carrying chairs up and down the stairs for discipline when he came on his shift immediately following the Respondent’s shift in the correctional facility.
Officer Gardner did not witness the alleged incident of November 27, 2002.
Officer Gardner and the Respondent were friends when they worked together at the correctional facility.
Sometimes inmates report incidents that are not true.
Inspector French interviewed the Respondent once not under oath and a second time under oath.
Under oath, on December 31, 2003, the Respondent stated to Inspector French that he had never ordered inmates to carry chairs up and down the stairs as a form of discipline.
The Respondent was well respected at the Lake City Correctional facility prior to the alleged incident.
If the Respondent had been found to have ordered inmates to carry chairs up and down the stairs as a form of
discipline he most likely would have received a PSN, a “problem solving notice,” which is a mild form of discipline.
The Respondent had never received a PSN or any form of discipline for having required inmates to carry chairs up and down the stairs as a form of discipline since no such incidents had ever been reported as to the Respondent in the past.
The Respondent and all correctional officers at Lake City Correctional Facility had received instruction in the past about the importance of not lying under oath.
The senior staff at the correctional facility instruct the correctional officers concerning how serious an infraction the Florida Department of Law Enforcement considers lying under oath.
The Respondent had never been untruthful to Inspector French in the past.
Sergeant Donna Murphy was aware that Officer Escobar went from cell to cell after the alleged incident of
November 28, 2002, seeking statements about the incident from inmates.
Inmate Smiley is a small individual who would have had a difficult time carrying six chairs up and down the stairs.
Sergeant Murphy had never witnessed the Respondent requiring inmates to carry chairs up and down the stairs as a form of discipline.
Sergeant Murphy did not witness the alleged incident of November 27, 2002.
The Respondent believes that the witnesses who testified against him were forced to make the statements concerning his past disciplinary practices.
The Respondent and Officer Escobar have experienced working relationship problems in the past.
During his tenure at the Lake City Correctional Facility, the Respondent received one of the highest officer’s evaluations for 2002, and he was recommended for and completed four instructor’s courses: firearms instructor, defensive tactics instructor, instructor techniques, and chemical agents instructor.
The Respondent has suffered personally as the result of losing his position at Lake City Correctional Facility. He has been forced to take a low-paying position as a youth counselor at a local community center in order to keep up with his child support payments and living expenses.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.
Revocation of license proceedings are penal in nature, State ex rel Vining v. Florida Real Estate Commission, 281 So.
2d 487 (Fla. 1973), and must be construed in favor of the one against whom the penalty would be imposed. Munch v. Department
of Professional Regulation, Division of Real Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983).
The standard of proof in this proceeding is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Heifetz v. Department of Business Regulation, Division of
Alcoholic Beverages and Tobacco, 475 So. 2d 1277 (Fla. 1st DCA 1985). The Petitioner has the burden of proving by clear and convincing evidence each of the allegations contained in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Such evidence must be supported by findings of fact that are supported by competent, substantial evidence. Pic N’ Save v. Department of Business Regulation, 601 So. 2d 245,
249 (Fla. 1st DCA 1992).
Section 943.1395(6), provides, in part:
The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(4) . . . .
Section 943.13, establishes the minimum qualifications for certification as a Florida correctional officer. Subsection
(7) provides:
Have a good moral character as determined by a background investigation under procedures established by the commission.
Florida Administrative Code Rule 33-208.002, sets forth rules of conduct and performance applicable to all Department of Corrections employees. The pertinent provisions provide as follows:
(2) Each employee shall make an immediate report to the Secretary, warden, or Officer- in-Charge of any violation of the law or the rules and regulations of the department of which he has knowledge. Such employee’s report may be required in writing at the discretion of the receiving official.
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(13) No employee shall falsify reports or records.
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(20) No employee shall knowingly submit inaccurate or untruthful information for or on any Department of Corrections record, report or document.
Florida Administrative Code Rule 11B-27.0011, sets forth the criteria for determining whether a certified law enforcement officer possesses “good moral character.” The rule provides, in pertinent part, as follows:
For purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Sections 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:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
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(c) The perpetration by an officer of acts or conduct that constitute the following offenses: . . .
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12. Making a false statement(s) of fact, under oath, as to misconduct related to an agency duty with the intent to mislead or deceive. “Agency duty” means any duty as defined by the agency head, or his or her designee.
Section 943.1395(7)(a)-(e), establishes penalties for application in appropriate cases where the Petitioner finds that a certified officer has not maintained good moral character. The penalties range from revocation of certification to the issuance of a reprimand.
The Administrative Complaint in this cause alleged that the Respondent, on or about December 31, 2002, made a false statement, which he did not believe to be true, under oath administered by Inspector Paul French, in an official
proceeding, an internal investigation, with respect to a material matter.
Section 837.02(1), states as follows: “Perjury in official proceedings: whoever makes a false statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree.”
Based upon the testimony of the numerous witnesses, all employees of Lake City Correctional Facility (or Corrections Corporation of America which operates the facility), and all but one of whom is a sworn correctional officer, the Respondent made a false statement in the context of an official proceeding, namely, the investigation by Inspector French of the alleged incident of November 27, 2002. The evidence produced at hearing does not conclusively establish that Inmate Smiley did, in fact, fall down the stairs while carrying six chairs for the purpose of discipline. Only Mr. Smiley and his fellow inmates appeared to have witnessed the alleged incident, and none of them were called to testify at hearing. The witnesses who testified were neither present when the alleged incident took place nor did they have any firsthand knowledge of what transpired, if anything, on November 27, 2002. They have all relied upon, for their testimony, hearsay statements from inmates (in some instances hearsay piled upon hearsay) who may or may not be
reliable witnesses to the alleged incident. The evidence produced at hearing does not support the reliability, or lack thereof, of the inmates who offered statements against the Respondent. The evidence produced at hearing failed to establish whether the chair-carrying incident of November 27, 2002, actually occurred. This does not mean, however, that the Respondent has not violated the standards and practices of the Petitioner by failing to maintain good moral character.
In Zemour v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied a license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are not similar to the instant case, the court’s definition of “moral character” is significant:
Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. Id. at 1105.
See Florida Board of Bar Examiners v. G.W.L., 364 So. 2d 454,
458 (Fla. 1978); See also White v. Beary, 237 So. 2d 263 (Fla.
1st DCA 1970).
The position of the law enforcement officer is one of great public trust. There can be no more basic public expectation than those who enforce the laws must themselves obey the law. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1985).
The Respondent, in his testimony attempted to establish that each of the witnesses was either being untruthful or was being coerced into testifying that he or she had either personally witnessed the inmates under the Respondent’s watch carrying chairs up and down the stairs as a form of discipline or had discussed the issue of chair-carrying as discipline with the Respondent. The Respondent’s attempt to establish bias or untruthfulness on the part of the seven witnesses called by the Petitioner or the Respondent to testify fell far short of his goal. All but one of the witnesses, Officer Escobar, appeared to have a great deal of respect for the Respondent and believed him to be a good correctional officer, at least before the circumstances giving rise to this case. The Respondent’s position that he never required inmates to carry chairs up and down the stairs as a form of discipline is not based upon any competent, substantial evidence offered by the Respondent.
The Petitioner has established, by clear and convincing evidence, that the Respondent made an untruthful statement when he testified, under oath, in the official
proceeding, i.e., the internal investigation conducted by Inspector French, that he had never required inmates to carry chairs up and down the stairs as a form of discipline.
Moreover, the fact that the Respondent appeared to be aware that his ordering of chair-carrying for discipline was a minor infraction demonstrates his lack of realization that his untruthfulness under oath constitutes a serious breach of the public trust.
The Respondent did establish one important fact with respect to his actions which might have avoided the alleged incident of November 27, 2002, from ever occurring, namely, that each of the testifying witnesses who had seen or were aware of the Respondent’s ordering of chair-carrying as a form of discipline failed to report this infraction at the time it occurred. In fact, the only time this form of discipline was reported was when an inmate allegedly received injuries as the result of being disciplined in this manner. This failure to report what each witness believed to be a violation is, in and of itself, a violation of Florida Administrative Code Rule 33- 208.002(2), which requires each employee to make an immediate report of violations of the law or the rules of the Department of Corrections. None of the witnesses to the Respondent’s behavior ever reported these violations to their superior officers at the correctional facility. Had these alleged
violations of the code of discipline been reported, the Respondent might never have been in a position where he could choose to deny their existence.
This does not excuse the Respondent’s behavior, however. The Petitioner has shown by clear and convincing evidence that the Respondent failed to maintain good moral character within the meaning of Section 943.13(7), and Florida Administrative Code Rule 11B-27.0011(4)(a), by giving untruthful testimony, which he knew to be untruthful, under oath in an official proceeding. The failure of the Respondent’s fellow correctional officers, some of whom hold high rank within the Lake City Correctional Facility, serve as a slight mitigating factor in the conclusion to be reached in this matter.
Based upon the high degree of respect the Respondent held among his fellow correctional officers prior to the incident giving rise to this proceeding; the high evaluation he received in 2002; the completion of four instructor’s courses for which he was recommended; the fact that none of his fellow and superior correctional officers ever reported the Respondent’s alleged violations of the code of discipline previous to this matter; and the fact that the Respondent has worked hard to continue to meet his financial obligations to his family, the Respondent’s certification should not be revoked. This is not meant as an excusal of the Respondent’s lying under
oath. Such a violation of the public trust is not one to be taken lightly. Moreover, the Respondent’s fellow employees' failure to report the alleged violations, while perhaps a contributing cause to the Respondent’s actions which gave rise to this matter, do not excuse the Respondent’s violation of the law. It is concluded that the Respondent was, and with a proper amount of disciplinary action, should be in the future, a valuable member of the corrections staff at Lake City Correctional Facility or another facility in Florida.
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows:
DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2004.
Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Michael A. Kelly Route 7, Box 517
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
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.
