STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

MARVINA K. JOHNSON, )

)

Respondent. )

Case No. 04-2031PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 12, 2004, in Bradenton, Florida, before Fred L. Buckine, a duly-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: Marvina K. Johnson, pro se

7016 49th Place, East Palmetto, Florida 34221

STATEMENT OF THE ISSUES

Whether Respondent, a certified correctional officer, while under oath, did make false statements, which she did not believe

to be true, in an official proceeding regarding a material matter, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

By notice dated May 7, 2004, Rod Caswell, program director, Division of Criminal Justice Professionalism Services, served Respondent by certified mail with a copy of the following Administrative Complaint:

The Criminal Justice Standards and Training Commission, hereinafter referred to as the Commission, filed this Administrative Compliant against the Respondent, Marvina K. Johnson. The Commission seeks to impose disciplinary action upon the referenced individual based on the following allegations:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on September 17, 1991, and was issued Correctional Certificate Number 62620, and on June 23, 2000, was issued Instructor Certificate Number 211202.

   
   

2. On or about November, 24, 2003, the Respondent, Marvina K. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Sgt. William Diamond and Investigator Nancy Schoff in an official proceeding, to wit: internal investigation, in regard to a material matter.

   
   

3. The actions of the Respondent did violate the provisions of Section 837.02(1) or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rules 11B-27.0011(4)(a) and/or 11B- 20.0012(1)(f), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section

   943.13(7), Florida Statutes, which require that a Correctional Officer and Instructor in the State of Florida have good moral character and which gives rise to a disciplinary action against Respondent's certification.

   
   

4. This Administrative Complaint is issued pursuant to Sections 120.60, 943.12(3) and 943.1395(6) and/or (7), Florida Statutes. Any proceeding concerning this Complaint shall be conducted pursuant to Section 120.569 and 120.57, Florida Statutes, and Rules 11B-27, 28-106, 28-107, Florida Administrative Code. Mediation is not available under Section 120.573, Florida Statutes.

WHEREFORE, it is alleged that the Respondent, Marvina K. Johnson is guilty of violating Sections 943.1395(6) and/or (7), and/or 943.13(7), Florida Statutes, and/or Rules 11B-27.0011(4)(a) and/or 11B- 20.0012(1)(f), Florida Administrative Code.[1]

NOW, THEREFORE, the Florida Criminal Justice Standards and Training Commission hereby complains against Marvina K. Johnson and alleges that an appropriate penalty as provided in Section 943.1395(6) and/or (7), Florida Statutes, should be imposed for the reasons set forth above and in accordance with the Election of Rights form (to which is attached an Explanation of Rights form) attached hereto and incorporated herein. [emphasis added]

By notice dated May 11, 2004, Respondent requested a final hearing disputing allegations in the Administrative Complaint.

On June 9, 2004, Petitioner forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a final administrative

hearing in this matter, pursuant to Subsection 120.57(1), Florida Statutes (2004). This case was assigned to the undersigned and, in response to the parties' Joint Response to Initial Order, was scheduled for final hearing in Bradenton, Florida, on August 12, 2004.

At the final hearing, Petitioner presented the testimony of Sergeant Gaythel Siplin, Administrative Division, Court Security Bailiff's Office, Manatee County Sheriff's Department, and Sergeant William Diamond, Internal Affairs, Special Investigation Unit, Manatee County Sheriff's Department.

Petitioner offered two exhibits (P-1, an authorization form, and P-2, a 25-page, Internal Investigation Report, dated

November 25, 2003),2 which were accepted into evidence. Respondent (now known as Mrs. Straubel) testified on her own behalf and offered one post-hearing submittal (R-1, copy of her marriage license to Bruce Straubel on August 16, 2004, in Manatee County, Florida), which was accepted into evidence.

A Transcript of the final hearing was filed with the Division of Administrative Hearings on August 27, 2004.

Respondent and Petitioner filed Proposed Recommended Orders, respectively, on September 1 and 3, 2004, both of which were considered by the undersigned in preparation of this Recommended Order.

FINDINGS OF FACT

Based upon observation of the demeanor and candor of each witness; stipulations by the parties; documentary materials received in evidence; and evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004), the following relevant and material facts, arrived at impartially and based solely on information presented at the final hearing, are determined:

1. Deputy Marvina K. Johnson was certified by the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), on September 17, 1991; was issued Correctional Certificate Number 62620; and, on

   June 23, 2000, was issued Instructor Certificate Number 211202. At all times material, Ms. Johnson was employed by the Manatee County Sheriff's Department (Sheriff's Department) until her dismissal in November of 2003.

2. At some time during the month of June 2003, Ms. Johnson met Bruce Straubel in a local gym. Shortly after their initial meeting, the two became romantically involved. This romantic relationship progressed to the point that Mr. Straubel moved into Ms. Johnson's residence; thereafter, they established joint bank accounts and shared housekeeping and household expenses. At all times heretofore, Mr. Straubel was working in the construction industry.

3. The evidence demonstrated that Ms. Johnson did not know and that she was not informed by Mr. Straubel that he was a convicted felon serving five years' probation at the time of their initial meeting in June and throughout the first few months of their relationship. The evidence of record demonstrated that it was not until early August 2003 that

   Ms. Johnson became aware of Mr. Straubel's criminal past.

   
   

4. Sergeant Gaythel Siplin, Ms. Johnson's co-worker, testified that she was invited to Ms. Johnson's residence for a party where she was introduced to Mr. Straubel by Ms. Johnson. Sergeant Siplin, throughout the course of the evening, correctly assumed that Ms. Johnson and Mr. Straubel were seemingly truly romantically involved. From her apparent concern and her

   20 plus years as a correctional officer with experiences of potential problems female correctional officers may encounter when involved with males of unknown background, Sergeant Siplin inquired if Ms. Johnson had conducted a background check on

   Mr. Straubel, to include AIDS testing, credit check, and criminal background check. The answer given, as recalled by Sergeant Siplin, was negative.

5. On another occasion, unidentified in the record but believed by the witness to have been during the month of July 2003, Sergeant Siplin testified that she again advised

   Ms. Johnson to "check out" Mr. Straubel; meaning do a medical, credit, and criminal background check because in her mind

   "Mr. Straubel was too good to be true . . . like he fell from heaven."

6. Sergeant Siplin testified that Ms. Johnson told her on or about the first of August that "Bruce" was involved in construction and building houses and that he was involved in a situation where he was charged with false imprisonment. Sergeant Siplin knew for a fact that false imprisonment is a violent offense, and she told Ms. Johnson to check into

   Mr. Straubel a little bit further. Ms. Johnson was not certified to make inquiries through use of the Department of Law Enforcement's NCIC computer connection to ascertain the identity of a person with a felony conviction. According to Sergeant Williams, information about Mr. Straubel was available to

   Ms. Johnson through the internet by connecting to the Department of Correction's website.

7. Sergeant Siplin related her "concerns about

   
   

   Ms. Johnson's relationship with Mr. Straubel" to other members of the Sheriff's Department. This "concern" founded its way into the Internal Affairs (IA) Office during August 2003.

   During a conversation between Lieutenant Smalls and an unnamed probation officer, the lieutenant was told that "one probationer [unnamed] was seeing a fellow employee."

8. On or about August 19, 2003, Lieutenant Smalls met with and informed Captain Williams of the information taken from an unidentified probation officer. Captain Williams checked and affirmed that Mr. Straubel was a convicted felon. The IA investigation team, consisting of Major Potts, Captain Williams, Captain Smith, Lieutenant Smalls, and Carolyn Smith, summoned Ms. Johnson into the IA office and asked whether she knew

   Mr. Straubel was a convicted felon, to which Ms. Johnson answered "No." Not withstanding Ms. Johnson's denial of "knowledge that Mr. Straubel was a convicted felon," she was told by a [unnamed] superior officer of the Sheriff's Department to "cease and desist her relationship or any other contact with Mr. Straubel because of his criminal history." Ms. Johnson gave undisputed testimony that during her interview, her superior officer told her, "[I]f you had married him all of this would not be in play, you should have married him."

9. Ms. Johnson complied with the "cease and desist her relationship or any other contact with Mr. Straubel" order of her superior officer from August 19, 2003, until sometime beginning in late October or early November 2003. Ms. Johnson gave undisputed testimony that she paid for Mr. Straubel to move into another living facility, establishing separate residence. She deposited money into his bank account and made a valid effort to "discontinue seeing Mr. Straubel." However, her

   efforts failed, and she first began calling Mr. Straubel; the repeated calls led to meetings outside her home; the meetings outside her home led to her going to his motel for overnight visits; the overnight motel visits led to Mr. Straubel coming over and spending nights at her home.

10. Sergeant William Diamond testified that on or about November 14, 2003, Mr. Straubel called IA and asked to meet and did meet with IA members on or about November 17, 2003. According to Sergeant Diamond, during the meeting, Mr. Straubel acknowledged that he and Ms. Johnson were still "having an affair." Although available, Mr. Straubel did not testify. Because IA got its information from a probation officer, and, thereafter, the probationer presumably called IA and volunteered to meet with IA, the logical and most reasonable assumption is that the convicted felon, Mr. Straubel, was prompted by his probation officer to contact IA. However, the Commission chose not to call Mr. Straubel to testify. Therefore, testimony of Sergeant Diamond, purporting to be "statements made by

    Mr. Straubel to IA on or about November 17, 2003," which are hearsay upon hearsay statements, is insufficient to establish the truth of the matter asserted therein, is insufficient to establish the truth of the allegations sought to be established, and is, therefore, rejected by the undersigned.

11. On November 24, 2003, Ms. Johnson was called in by IA and questioned regarding her knowledge of Mr. Straubel and his criminal history and her relationship with him. There was testimony regarding "dates phone calls were made to and from Respondent's phone"; however, there is no written evidence of record of the alleged phone calls or the dates they were made, if made. There was testimony regarding some questions asked of Ms. Johnson by the IA team members regarding motel rental payments and bank deposits. Again, there is no written evidence of record of the motel rental payment, or bank deposit slips, etc., that was produced by Petitioner. Accordingly, the testimony regarding or relating to documentation not of record is insufficient alone to establish a firm belief as to the truth of the matter sought to be established.

12. Ms. Johnson never denied not seeing Mr. Straubel.

    
    

    When questioned whether she had "seen Mr. Straubel" after the August 19, 2003, order to cease and desist her relationship with Mr. Straubel, Ms. Johnson answered "no" but continued her answer to explained her temporary successful attempt to discontinue her relationship and her subsequent relapse back into the relationship with Mr. Straubel, after passage of time.

13. During questioning by IA, Ms. Johnson admitted paying Mr. Straubel's motel bill after he moved out of her residence; she acknowledged that she was aware that in his past

    Mr. Straubel had gotten into "some trouble"; but she denied knowing, at that time, his trouble was a felony conviction. After IA presented her unidentified documentation that

    Mr. Straubel was a convicted felon, Ms. Johnson accepted IA's documentation as evidence of Ms. Straubel's criminal background. Her mere acknowledgement of the documentation presented to her by IA does not establish, as fact, she had knowledge of this information prior to IA's interrogation. Mr. Strabuel was not called to testify, and the tape recording of his earlier interview with IA was not introduced into evidence. The witnesses' recollection, made from repeated references to summation notes of tapes and other documents not in evidence, purporting to be statements Mr. Straubel voluntarily made to IA about what Mr. Straubel may or may not have told Ms. Johnson in June 2003, is hearsay upon hearsay and not acceptable as evidence to prove the truth sought to be established. For that reason this testimony is rejected in toto.

14. The Sheriff's Department terminated Ms. Johnson's employment at the conclusion of the IA investigation, the exact month and date are not in evidence of record.

15. After her termination by the Sheriff's Department, Ms. Johnson entered college and, as of this proceeding, had earned 46 credits toward her college degree. Subsequent to the

    close of this proceeding Ms. Johnson and Mr. Straubel were married on August 16, 2004, in Manatee County, Florida.

16. The evidence of record is neither clear nor convincing that on November 24, 2003, while under oath Ms. Johnson intentionally made a false statement(s), which she did not believe to be true. The testimony of Sergeant Diamond alone, based upon summation notes purportedly taken from two tape recordings of an interview between Lieutenant Smalls and

    Mr. Straubel and three tape recordings purportedly containing interviews with Captain Smith, Sergeant Siplin, Deputy Eleanor Mays and Ms. Johnson, is neither clear nor convincing when transcription summaries of the tape recordings and not the tape recordings themselves where introduced into evidence. There is no evidence of record of the specific question(s) asked

    Ms. Johnson and no evidence of record of her specific answer to each question regarding her relationship with Mr. Straubel after August 19, 2003.

17. The evidence of record regarding the November 24, 2003, interrogation episode, viewed most favorably, is not clear. When questioned by the IA committee and/or members regarding specific bills she allegedly paid, phone calls she allegedly made, and bank deposits she allegedly made; those phone bills, telephone logs, and bank deposit slips are not of record. Accordingly, an objective evaluation of Ms. Johnson's

    answer to each question regarding each specific document can not be made. Thus, Ms. Johnson's knowledge at the time each answer was given, her intention when an answer was given to a specific question, and whether her answer was true or false, can not be objectively made or reasonably inferred from the nonspecific summation testimony of Sergeant Diamond. Assuming Sergeant Diamond's entire testimony was accurate, the ambiguity created by the absence of dated documents and the absence of accurate transcripts of the several tape recordings upon which he based his testimony must be resolved in favor of Ms. Johnson.

18. Other than the faulty memory of Sergeant Diamond, refreshed from an unauthenticated 19-page summation report, there is no substantial and specific evidence of all specific questions asked of Ms. Johnson or the specific answer to each question given under oath by Ms. Johnson. Sergeant Diamond's testimony consisted primarily of debatable expressions announced prospectively that may result in the loss of a valuable license. Viewed most favorably, the testimony of Sergeant Diamond, taken from a 19-page unauthenticated summation report of tape recordings and alleged confessions and admissions by other parties, is lacking in "specificity" and fails to produce a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Ms. Johnson's denials of essential

    elements in the Administrative complaint, even if unbelievable, does not prove the accusations.

19. The Commission failed to prove by clear and convincing evidence that on or about November 24, 2003, Ms. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Sergeant Diamond and Investigator Nancy Schoff in an official proceeding, to wit: internal investigation, in regard to a material matter as alleged in the Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause, pursuant to Subsection 120.57(1), Florida Statutes (2004).

21. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

22. The following statement has been repeatedly cited in discussions of the "clear and convincing" evidence standard:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and

    the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

    Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (1992)(citation omitted). Evidence in a licensure revocation proceeding must be as substantial in "weight" and "specificity" as the consequence of the proceeding and denials of essential elements in the Administrative Complaint, by the accused, even if unbelievable, does not prove the accusation. See Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

24. It is alleged that Respondent violated Subsection 837.02(1), Florida Statutes (2003), which provides:

    Except as provided in subsection (2), whoever makes a false statement, which he or she 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, punishable as provided in s.

    775.082, s. 775.083, or s. 775.084.

25. Subsections 943.1395(6) and/or (7), Florida Statutes (2003), in part, provide that :

    1. 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 s. 943.13(8), s. 943.133(2), or s. 943.139(2). . . .

       
       

       * * * *

       
       

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by section 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.

       
       

26. Subsection 943.13(7), Florida Statutes (2003), establishes the minimum qualifications for law enforcement officers in Florida, including:

    Have a god moral character as determined by a background investigation under procedures established by the commission.

27. It is also alleged that Respondent violated Florida Administrative Code Rule 11B-27.0011(4)(b). This rule provides a definition of "good moral character" for purposes of implementation of disciplinary action upon Florida correctional officers. The rule states in pertinent part:

    (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:

    
    

    * * *

    
    

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

    
    

28. The only evidence presented to establish the elements to support the allegation that Respondent, Marvina K. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered in an official proceeding, to wit: internal investigation, in regard to a material matter, was Sergeant Diamond's recollection testimony. His testimony was based upon his repeated references to summation notes purportedly taken from three taped conversations/testimonies, bank deposit slips, motel receipts and/or other documents; the latter of which were not placed in evidence. There is no

    evidence of record of the specific question(s) asked about a specific document(s) and the specific answers given by

    Ms. Johnson during the interrogation by IA in November 2003.

    
    

29. At least one tape recording, according to the witness, purportedly contained voluntary statements made by Mr. Straubel outlining "specific statements" regarding his criminal history that were made to Ms. Johnson during their initial meeting in June 2003. The documents, purportedly copies of specific bills, bank deposits slips, and phone logs of incoming/outgoing calls, all of which were presumably dated, were not introduced into evidence. Those documents were gathered by IA through its investigation and used as the basis for their questions to

    Ms. Johnson on November 24, 2003. Those documents are the factual foundation upon which the Commission must prove Ms. Johnson knew the content of each document and with that

    knowledge she intentionally gave false answers while under oath. Without the documents in evidence, the undersigned makes no inference regarding the content of those documents and

    Ms. Johnson's knowledge of such content. The foregone, when considered with Ms. Johnson's admitted emotional relationship and subsequent marriage to Mr. Straubel and her successful college attendance thereafter, serves to mitigate the inference of a premeditated intent to be untruthful when confronted.

30. Given the clear and convincing standard, the Commission's evidence has failed to establish, as fact that

Ms. Johnson knowingly made a false statement, which she did not believe to be true, under oath in an official proceeding in regard to any material matter, a violation of Subsection 837.02(1), Florida Statutes (2003).

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the Administrative Complaint against Respondent, Marvina K. Johnson.

DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 30th day of November, 2004.

ENDNOTES

1/ Florida Administrative Code Rule 11B-20.0012, Denial of Certification (Repealed)[R.11/02].

2/ Petitioner's Exhibit 1, admitted into evidence, consisted of a 25-page document entitled "One Copy of I.A.S. #2003-10143: Copies of Tapes: Lieutenant Smalls, Bruce, Straubel (2), Captain Smith, Sergeant Siplin, Deputy Eleanor Mays, Marvina Johnson (3)." The documents purported to be "summation(s)" of several different facets of the investigation and "the summations" of approximately nine different tape recordings made during the investigations and admissions of Respondent to "the summations" therein. Included in the summation report are statements allegedly made by Mr. Straubel during his purported voluntary interview by IA. The document is hearsay (Section 90.801, Florida Statutes (2003)) and contains hearsay within hearsay (Section 90.805, Florida Statutes). The document is not self- authenticated nor does it contain a "seal" of a political subdivision, department, officer or agency as required under Section 90.902, Florida Statutes, Evidence Code. As such, the undersigned does not accept nor consider the content of this document and does not accept testimony of witnesses with reference to or reliance upon this document for "the truth of the matter asserted therein" against Respondent.

COPIES FURNISHED:

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

Marvina K. Johnson 7016 49th Place, East

Palmetto, Florida 34221

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 case.

Docket for Case No: 04-002031PL

Orders for Case No: 04-002031PL