DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )
vs. ) Case No. 05-3288PL
JEFFERY S. HARDY, )
Respondent. )
A hearing was held pursuant to notice on November 9, 2005, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Palatka, Florida.
For Petitioner: Joseph S. White, Esquire
Department of Law Enforcement Office of the General Counsel Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: Thomas A. Delegal, III, Esquire
Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
On or about June 14, 2005, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint against Respondent. The Administrative Complaint alleged that Respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character.
Specifically, the Administrative Complaint alleges that Respondent violated Section 837.02(1), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B-27.0011(4)(a), in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida be of good moral character.
Respondent disputed the allegations in the Administrative Complaint and timely filed a request for a formal administrative hearing to be conducted pursuant to Sections
120.569 and 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings on or about September 13, 2005. A formal hearing was set for November 9, 2005.
At hearing, Petitioner presented the testimony of Thomas Kelly, Michael Oglesbee, Michael Younis, Rick Ryan, Gary Bowling, and James Rick Lashley. Petitioner's Exhibit numbered 1 was admitted into evidence. Respondent did not present any witness testimony. Respondent's Exhibits lettered K, and L were admitted into evidence.
A Transcript, consisting of one volume, was filed on November 23, 2005. The parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order. All references to the Florida Statutes will be to Florida Statutes 2004, unless otherwise indicated.
Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974.
At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the
Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant.
On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1
At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour.
As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender.
Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him.
On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body.
On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been
aware of the damage or the repairs being made to the patrol vehicle.
On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office.
On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented
Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee.
Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident.
Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair.
At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident.
At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis.
Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present.
Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting.
According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said.
As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent.
On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation.
On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting.
Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview.
This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2
Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff."
While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004).
Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with
Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall.
Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded:
Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy?
A I'm testifying on my past practice.
Q Okay. But you don't have any specific recollection of speaking with him about this incident?
A I cannot recall the conversation.
Q And you could not swear to actually having notified him in July when this incident happened?
A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident.
Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He
also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff.
Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired.
When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows:
Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of.
Lashley: That was during the truancy roundup, correct?
Hardy: Correct.
Lashley: ...or detail, back in first week in October?
Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be.
Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said...
Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
CONCLUSIONS OF LAW
The Criminal Justice Standards and Training Commission has jurisdiction over the certification of correctional officers pursuant to Chapter 943, Florida Statutes.
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Commission has the burden of proving by clear and convincing evidence the allegations in the Administrative Complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
For proof to be considered clear and convincing, "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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398,404 (Fla. 1994),
citing, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 837.02(1), Florida Statutes, states that 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 is guilty of a felony of the third degree.
Section 943.1395, Florida Statutes, reads, in pertinent part:
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).
* * *
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:
Revocation of certification.
Suspension of certification for a period of not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .
Successful completion by the officer of any basic recruit, advanced, or career
development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
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).
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) provides:
(7) Have a good moral character as determined by a background investigation under procedures established by the Commission.
Florida Administrative Code Rule 11B-27.0011(4) defines good moral character as follows:
11B-27.0011 Moral Character.
* * *
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:
The perpetration by an officer of an act that would constitute any felony
offense, whether criminally prosecuted or not.
"The elements of perjury in official proceedings are
1) making a false statement, 2) which one does not believe to be true, 3) under oath in an official proceeding, 4) in regard to any material matter." Vargas v. State, 795 So. 2d 270 (Fla. 3d DCA, 2001); § 837.02(1), Fla. Stat.
The evidence presented does not clearly and convincingly establish that Respondent learned of the incident in July when the incident occurred. More importantly, the evidence does not establish that Respondent made a false statement which he did not believe to be true under oath in an official proceeding in regard to a material matter. While Sergeant Oglesbee recalled attempting to contact Respondent, he repeatedly stated that he could not recall the conversation and was testifying under his "past practice." Lieutenant Lashley established that Respondent was not on duty the day of the incident. Further, Respondent's acknowledgment that he learned of the incident in October is supported by the testimony of Deputies Kelly and Younis.
Petitioner has not met its burden to support the charges in the Administrative Complaint that Respondent violated Section 837.02, or 943.1395(6) or (7), Florida Statutes, or Florida Administrative Code Rule 11B-
27.0011(4)(b) in that he made a false statement in an official proceeding or that he failed to maintain good moral character.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy.
DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2005.
1/ The parties stipulated that the incident took place in mid- July. The evidence established the date to be July 12, 2004.
got from a repair shop in August 2004 and whether or not Respondent knew about these estimates. The testimony about any estimates is hearsay and is not competent to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes. In any event, Deputy Younis's testimony that he did not discuss the incident with Respondent prior to October moots any importance of estimates obtained in August).
Joseph S. White, Esquire Office of the General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Thomas A. Delegal, III, Esquire Delegal Law Offices
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Professionalism Services 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.
