STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL )

JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 05-2167PL

)

FAYE E. WRIGHT-SIMPSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee and Fort Lauderdale, Florida, on August 12, 2005.

APPEARANCES

For Petitioner: Joseph S. White

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Faye E. Wright-Simpson, pro se

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character, in violation of Section

943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed February 13, 2004, and transmitted to the Division of Administrative Hearings on

June 15, 2005, Petitioner alleged that Respondent is certified as a correctional probation officer and criminal justice training instructor. The Administrative Complaint alleges that Respondent falsified an affidavit with the intent of benefiting herself. The Administrative Complaint alleges that Respondent thus violated Sections 839.25 and 943.1395(6), Florida Statutes, and Florida Administrative Code Rules 11B-27.0011(4)(a) and

11B-20.0012(1)(f) by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional probation officer and instructor maintain good moral character.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called five witnesses and offered into evidence five exhibits: Petitioner Exhibits 1-5. Respondent called one witness and offered into evidence 24 exhibits: Respondent Exhibits 1-2, 4-22, and 24-26. All

exhibits were admitted except Respondent Exhibits 2, 6, 8, 14-

15, 18, 20-22, and 25-26, which were proffered. Respondent Exhibit 16 was admitted for the truth only as proof of

Respondent's state of mind; otherwise, it was excluded and proffered.

The court reporter filed the transcript on August 31, 2005.

During the hearing, Petitioner identified an exhibit that it wished to introduce, but it did not have the exhibit at the hearing. The Administrative Law Judge granted leave to Petitioner to produce the exhibit after the hearing and informed Respondent that she would have the opportunity to cross-examine the witness who would sponsor the exhibit. By Order Reopening Record entered September 14, 2005, the Administrative Law Judge granted Respondent leave to take the deposition of the sponsoring witness. The deposition took place on October 17, 2005, and the court reporter filed the transcript of the deposition on November 23, 2005. Respondent requested a brief extension of time to file her proposed recommended order, and the Administrative Law Judge granted the request. The parties filed their proposed recommended orders by December 13, 2005.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional probation officer on February 1, 1991, and as a criminal justice training instructor on December 7, 1999. Her respective certificate numbers are 20851 and 205697.

2. Respondent was first employed by the Department of Corrections (DOC) on August 10, 1990. She was employed as a

   correctional probation officer. As a result of promotions, Respondent became a DOC Correctional Probation Specialist in February 1995, so that she was responsible for, among other things, various administrative duties, such as handling citizens' complaints of employee misconduct and coordinating training events.

3. In April 2001, Respondent filed a charge with the Equal Employment Opportunity Commission, alleging that DOC forced her to work in a hostile environment. On February 15, 2002, Respondent, alleging the same facts, commenced a legal action against DOC in the United States District Court, Southern District of Florida, Case No. 02-60236-CIV.

4. As part of the federal litigation, DOC filed a motion for summary judgment, arguing, in part, that Respondent's complaint failed to claim damages. In response, on March 28, 2003, Respondent, representing herself, filed a lengthy affidavit, to which she personally attested. In the affidavit, Respondent swore to the following statement:

   I requested assistance from management [following the departure of the other Correctional Probation Specialist from Respondent's office and DOC's failure to fill the empty position], but they refused to assign another Specialist to the office to assist me. As a result I had to work an average of five hours per week extra in overtime without pay to properly supervise this caseload to prevent from being

   reprimanded, suspended or terminated by [DOC]. I was not paid for this time.

   
   

5. The evidence is clear that Respondent did not work overtime, with or without pay. The Correctional Probation Supervisor who directly supervised Respondent at the time testified at the hearing. Obviously not hostile to Respondent, the supervisor testified definitively that during the relevant period in the affidavit--March 2, 2001 through May 9, 2002--she was intimately familiar with Respondent's work, including her itinerary and travel logs. The supervisor testified that Respondent incurred no overtime whatsoever during this period, and this testimony is credited in its entirety.

6. Respondent's sworn statement in the affidavit is false and was false at the time that Respondent made it. Respondent's sole purpose in making this false statement was to deceive the court and show an element of damages that did not, in fact, exist.

7. DOC terminated Respondent on August 1, 2003. She has not since worked in a job that requires certification from

   Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.

9. Section 943.13(7), Florida Statutes, imposes the requirement of "good moral character" on correctional probation officers. Florida Administrative Code Rule 11B-27.0011(4) defines the failure to maintain "good moral character" as, among other things, the perpetration of a felony, regardless whether prosecuted.

10. Section 943.1395(7), Florida Statutes, states:

    
    

    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.

       
       

11. The falsification of an affidavit by a public employee is a felony. Section 838.022(1)(a), Florida Statutes (formerly Section 839.25, as alleged in the Administrative Complaint), provides: "It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to

    another, to: a) Falsify, or cause another person to falsify, any official record or official document[.]" Section 838.022(3), Florida Statutes, provides that a violation of this statute constitutes a felony of the third degree.

12. Petitioner must prove the material allegations 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).

13. Petitioner has proved that Respondent, while an employee of DOC, has failed to maintain good moral character when, to gain advantage in a lawsuit, she falsely swore to federal court that she had worked overtime when she had not.

14. Florida Administrative Code Rule 11B-27.005 contains the disciplinary guidelines for various violations. Florida Administrative Code Rule 11B-27.005(5)(a) provides for a penalty of suspension to revocation for a violation of the requirement of maintaining good moral character, when, as here, the violation would constitute a felony. Citing as mitigating factors the lack of prior discipline and the length of time that Respondent has been unemployed in the corrections industry, Petitioner requests, for Respondent's correctional probation officer certificate, a retroactive suspension of one year (which has already expired) and a probationary period of two years from the date of the final order with the requirement that Respondent

    successfully complete an approved course in ethics. This is a reasonable penalty.

15. Section 943.12(3), Florida Statutes, authorizes Petitioner to discipline the certificates of instructors, and Section 943.14(3), Florida Statutes, authorizes Petitioner to adopt rules to establish procedures for certifying applicants as instructors and disciplining the certificates of instructors.

16. Florida Administrative Code Rule 11B-20.0012(2)(f) authorizes Petitioner to revoke the certificate of an instructor who commits an act establishing a lack of "good moral character," as defined in Florida Administrative Code Rule

11B-27.0011(4). Florida Administrative Code Rule 11B-27.005(9) provides that discipline by Petitioner of any certificate shall apply to all certificates issued by Petitioner. Accordingly, Florida Administrative Code Rule 11B-20.0012(6) provides that discipline against any other certificate, pursuant to Florida Administrative Code Rule 11B-27.005(9), shall also apply to the officer's instructor certificate.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificates as a correctional probation officer and criminal justice training instructor for one year retroactive to

August 2, 2003; placing these certificates on probation for two years from the date of the final order; and requiring Respondent to attend an ethics course approved by Petitioner.

DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 18th day of January, 2006.

COPIES FURNISHED:

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Joseph S. White

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Faye E. Wright-Simpson

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 05-002167PL

Orders for Case No: 05-002167PL