vs.
Respondent.
) Case No. 11-2456PL
On July 26-27, 2011, a duly-noticed hearing was held in Tallahassee, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Linton B. Eason, Esquire
Elissa R. Savaadra, Esquire
Veronica L. Bayo', Esquire Grossman, Furlow & Bayo', LLC 2022 Raymond Diehl Road, Suite 2
The issue to be resolved is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2006-2008),1/ and if so, what penalty should be imposed?
On January 10, 2011, Petitioner, the Criminal Justice Standards and Training Commission (Petitioner or the Commission) filed an Amended Administrative Complaint against Respondent, John McAlpin (Respondent or Chief McAlpin), alleging that Respondent engaged in witness tampering; made a false statement to an FDLE investigator; and used his official position to influence a police investigation, all in violation of section 943.1395(7). Respondent disputed the allegations in the Amended Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On May 16, 2011, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
The case was scheduled for July 26-28, 2011, commenced on July 26 and concluded on July 27, 2011. Petitioner presented the testimony of Amy Bates, Anissa Cottongim, Tamara Hudson, Major John Dennis, Lt. Michael Daniels, Jonna Bowman, Christina Stewart (Simpson), Robert Griffin, and Edward Fortune. Petitioner offered three exhibits, which were admitted into evidence. These exhibits consist of the video recording of the CPT interview of A.G.; the taped interview of A.G. by Respondent; and the taped interview of Respondent by Ed Fortune of FDLE. The exhibits have been reviewed in their entirety several times. Respondent presented the testimony of Louis Roberts and Donnie Branch, and introduced no exhibits.
A three-volume transcript was filed with the Division on August 16, 2011. At the request of the parties, the time for submission of proposed recommended orders was extended to September 13, 2011. Both parties timely filed Proposed Recommended Orders that have been carefully considered in the preparation of this Recommended Order.
In the interview by the CPT team member, A.G. indicated that she had been molested by her stepfather, Shelly Simpson, over a period of two years, during which he touched her inappropriately and tried, without success, to have sex with her. She stated that the most recent times he had molested her were the morning of the interview, and over the Martin Luther King Day weekend.
The CPT interview began at 3:15 p.m. and lasted approximately 45 minutes. At 4:00 p.m., Ms. Bates again attempted to call Chief McAlpin at SPD and was given his cell phone number, which she also called. After speaking with A.G.'s mother, Ms. Bates again called the police station at 4:28 to get
an officer to accompany her to the home to meet with the stepfather. Only after contacting Lieutenant Daniels for assistance did she receive a call indicating that someone would meet her at the office of the SPD to go to the Simpson home.
Ms. Bates and Ms. Simpson went to the police station where they met Officer Jarrett Tyus of the SPD. At that time, a copy of the CPT interview was left on Chief McAlpin's desk. The three adults proceeded to the Simpson's home: A.G. did not accompany them but instead went home with her aunt. Officer Tyus, Ms. Bates, and Ms. Simpson arrived at the Simpson home at approximately 5:45 p.m. Officer Tyus went to the door and spoke to Mr. Simpson, and brought him over to Ms. Bates, who reviewed the report of sexual molestation with him.
Respondent arrived at the home at approximately 5:55
p.m. At that time, he spoke to Ms. Bates and to Ms. Simpson, and appeared to be aware of the nature of the allegations. Chief McAlpin stated that the allegations were out of character for
Mr. Simpson, and asked Ms. Simpson if she had noticed anything, or if she and Mr. Simpson were having any problems. Chief McAlpin stated that these were serious allegations and that he did not know A.G., but he had known Mr. Simpson all of his life: that they were friends, and there would be an investigation.
Ms. Bates did not observe Respondent gather any evidence at the family home that evening. Although he spoke to Shelly Simpson, he did not attempt to interview anyone at the
Simpson home. Nor did he make any attempt to interview A.G. that day.
Ms. Bates had concerns regarding Chief McAlpin's ability to handle the investigation objectively, given his knowledge of and prior relationship with the suspect,
Mr. Simpson. Mr. Simpson was also an employee of the City of Sneads at the time. She expressed those concerns to her then- supervisor, Tamara Hudson. As a result of their conversation, Ms. Hudson called Lt. Daniels and requested that he "step in" and take over the investigation. However, the investigation remained with the SPD, and Chief McAlpin, for the time being.
Typically, when there is an investigation regarding possible sexual abuse of a child, the DCF staff working the case would be in close, regular contact with the law enforcement investigator assigned to the case. However, after the evening of January 24, 2007, Ms. Bates had no face-to-face contact with Chief McAlpin during the investigation.
Ms. Bates did, however, speak to him on January 31, 2007, to let him know that the CPT medical report had been received and, at his request, faxed a copy of the report to him.
Once there was a determination that the complaint was founded, on February 1, 2007, the case was transferred to Anissa Cottongim, who worked as a case manager in the area of child protection. From that date until DCF closed the case in July 2007, Chief McAlpin never called Ms. Cottongim.
There was, however, information provided to Chief McAlpin from DCF during this period. On February 14, 2007, Amy Bates spoke to Anissa Cottongim, who informed her that there was a possibility that there were other victims of sexual abuse by Mr. Simpson. Ms. Bates called Chief McAlpin on his cell phone and left him a message to return her call. She called again, about a half hour later, and spoke to him about the possibility of other victims. Chief McAlpin inquired whether the potential victims were family members of A.G., and was told that they were not related.
Chief McAlpin indicated that Shelly Simpson had mentioned something to him the day before, and that he would call back in a few minutes and speak to Ms. Cottongim. He did not do so. Ms. Cottongim also forwarded to him the results of a psychosexual examination of A.G., although the date the report was transmitted is not apparent.
Chief McAlpin denies receiving the information regarding other possible victims during his investigation. Ms. Bates' testimony is credited.
On February 12, 2007, Respondent took the sworn statement of Shelly Simpson. While Mr. Simpson apparently requested a polygraph test, no such test was ever actually administered.
On February 22, 2007, Chief McAlpin interviewed A.G. for the first time. He requested that Christina Simpson bring
A.G. into his office for an interview. At that point,
Ms. Simpson stated that she was confused and did not know "which way to go." Chief McAlpin asked for and received permission to interview A.G. alone, for the stated purpose of seeing if she were telling the truth or lying. Chief McAlpin told Ms. Simpson that he did not believe Mr. Simpson had molested A.G.
The interview with A.G. was recorded, although Chief McAlpin told her the conversation was "just between us." He hid the tape recorder behind a sign on his desk so that she could not see it. The interview was over two hours and nineteen minutes long. Major Dennis of the JCSO opined that the interview sounded more like the interrogation of a suspect than the interview of a child victim. He also opined that it appeared from listening to the interview that Chief McAlpin was attempting to get A.G. to change her testimony. Major Dennis' description is an understatement.
During those two-plus hours, Chief McAlpin told A.G. repeatedly that he believed she was lying and that it was "okay to make this right." While berating her, he told her he was her friend and that she was in no trouble. He also said, however, that she had told a "circle of lies" and did not want to be labeled as a liar, and that "sometimes people tell something so many times, they believe it." He asked A.G. if she was mad at
her stepfather, whom he repeatedly referred to as Shelly, and that if she wanted him out of the home, Chief McAlpin could help her get what she wanted. He reminded her repeatedly that this case was serious and would affect a lot of people, and that it was time to "put some closure to this one way or another." He also asked her what she wanted to happen to her stepfather, who loved her and raised her and was like a dad to her. Respondent asked whether A.G. wanted him "locked up in prison with killers, robbers, and rapers," and stated that he did not want to put an innocent man in prison.
Chief McAlpin asked A.G. how she would feel if her ten- year-old brother told people that she was doing bad things to him, and whether she would want someone to talk to him to get to the bottom of things and clear her name. He repeated several times that he believed that there were problems in the home and that A.G. had "issues" and was in need of counseling. He told this 14-year-old girl, who was alone in this lengthy interview with him, that she needed long-term, "in-house" counseling.2/
The examples given in paragraphs 21-22 are just a small sampling of the barrage of statements hurled at A.G. during this "interview." The number of questions actually asked of her could probably have been answered in a 15-20 minute span, at most. The remainder of the time, Chief McAlpin was suggesting reasons why she should recant; telling her how unbelievable she was; that there was no physical corroborating evidence; and what an ordeal
she would face if she did not change her story. Yet through it all, while quietly crying, A.G. did not change her story.
By contrast, Respondent acknowledged that with respect to his interview with Shelly Simpson, the suspect in this sexual molestation case, he "did not put a lot of pressure on him."
At some time after interviewing A.G., Respondent spoke to Mark Sims, the State Attorney. He described the evidence that he had and opined to Mr. Sims that he did not think that there was sufficient evidence to charge Mr. Simpson. At that time, he considered the case to be over.
During the time that Chief McAlpin was in charge of the investigation regarding A.G. and Shelly Simpson, A.G.'s grandfather, Robert Griffin, became very dissatisfied with the progress, or lack of it, of the investigation. He complained several times to Major Dennis of the JCSO. Eventually, on or about April 2, 2007, the JCSO took over the investigation, and the case was assigned to Lt. Daniels.
Lt. Daniels did not request a copy of the investigative file compiled by Chief McAlpin, and the contents of Respondent's file are not in evidence. Lt. Daniels decided, given the controversy surrounding the case, he would start fresh. He reworked the case as if he had investigated it from the beginning. Almost immediately he arranged for a second medical exam, this time with a female doctor. Lt. Daniels interviewed all the witnesses he knew about and put together as much
information as he could before interviewing Shelly Simpson, consistent with his usual practice to interview the subject of an investigation last. His interview with Mr. Simpson took place May 24, 2007.
On June 28, 2007, Lt. Daniels submitted his file to Assistant State Attorney Jonna Bowman, with a criminal complaint affidavit charging Mr. Simpson with child abuse and sexual battery.
When Ms. Bowman received the file from Lt. Daniels, he explained that he had taken over the case from SPD. She understood that Lt. Daniels did not have the file compiled by Chief McAlpin, and she requested the information from Respondent shortly after July 2, 2007. Respondent called her on July 5, 2007, saying he would bring her his file, along with the taped interview of A.G., the next day. He did not do so.
A second request for the information was made, and again the information was promised but not provided. Ms. Bowman did receive some information in August and at some point drove to Sneads to talk to him about his investigation. At that time, Chief McAlpin kept telling Ms. Bowman that A.G.'s story had a lot of inconsistencies in it. He told her he had not quite finished his reports on the case, and did so while she was there, so he could print the information out and give it to her. Chief McAlpin also told her about his interview with A.G., which he represented to be approximately 30-45 minutes, and gave
Ms. Bowman a digital recorder which was supposed to contain the interview. However, the recorder contained no interview of A.G.
One of the "inconsistencies" upon which Respondent placed great emphasis had to do with the clothing A.G. wore the day that she went hunting with Mr. Simpson and shot her first deer. Chief McAlpin described a picture to Ms. Bowman in which he claimed A.G. was wearing overalls while holding her first deer. He stated that her claim that Mr. Simpson molested her that day was not credible because the molestation could not take place with A.G. wearing overalls. However, at a subsequent visit to the A.G.'s home, Ms. Bowman observed the picture of A.G. holding her first deer. She was not wearing overalls.
Ms. Bowman asked again for the interview, and at some point in October 2007, a recorder labeled as belonging to SPD appeared on her desk, with no note of explanation. She found the interview difficult to listen to, but did not find the inconsistencies that Respondent claimed to exist in her story.
A capias was issued for Shelly Simpson's arrest on October 9, 2007, charging him with lewd and lascivious molestation. Ms. Bowman left the State Attorney's office before the criminal trial and did not try the case. However,
Mr. Simpson was found not guilty by a jury on October 3, 2008.
Robert Griffin, A.G.'s grandfather, remained dissatisfied about the way the case was handled, and filed a complaint with the Governor's Office, which was referred to the
Department of Law Enforcement (FDLE) in late 2007. In connection with FDLE's investigation, Chief McAlpin consented to a sworn interview by FDLE Investigator Ed Fortune. The interview, which was taped and admitted into evidence as Petitioner's Exhibit 3, is approximately 3.5 hours long.
In that interview, Chief McAlpin stated that he requested the CPT interview tape on January 24, 2011, "as soon as I could get it" and got the tape through Officer Tyus. His statement conflicts with that of Amy Bates, and Ms. Bates' testimony is credited. However, inasmuch as the tape was placed on Chief McAlpin's desk as opposed to being given to him directly, it is conceivable that Chief McAlpin believed that Officer Tyus had obtained the tape and placed it there.
Chief McAlpin stated that prior to the interview Ms. Simpson told him that she believed her husband and thought
A.G. would admit that the story was a lie. At hearing,
Ms. Simpson testified that she was confused and did not know which way to go. However, it is entirely possible that both statements are correct in that Ms. Simpson was placed in the untenable position of believing either her daughter or her husband, and may have voiced more than one opinion as time went on.
Chief McAlpin also states repeatedly in the interview that he was not aware that there was information regarding additional victims when he completed his investigation. His
statement conflicts with that of Shelly Bates, and Ms. Bates' testimony is credited. Further, Respondent knew it to be a false statement when he made it.
During the interview with Mr. Fortune, there was some discussion regarding letters that were in A.G.'s room. These letters were characterized as inconsistent in terms of language and sexual knowledge with what A.G. had exhibited in the investigation. Chief McAlpin had become aware of the letters through either Christina Simpson or Shelly Simpson. When he did not receive the letters through Ms. Simpson, he asked Shelly Simpson to retrieve them.
Chief McAlpin admitted that he had never asked any other subject of an investigation to retrieve evidence, and that the letters would have no chain of custody. He admitted that the letters had no evidentiary value, and that he could not be certain A.G. even wrote them, but in his mind they were relevant to disprove A.G.'s story.
Much of the interview with Mr. Fortune deals with the quality of Respondent's investigation and the decision-making behind his investigative choices. He chose not to talk to key people in DCF because he did not know them; did not collect physical evidence; and did not clarify with DCF investigators or medical personnel those areas that he claimed were puzzling or inconsistent. In short, from a review of all of the evidence presented in this case, it appears that Chief McAlpin decided
early on that A.G. was not telling the truth and conducted his investigation, to the extent he investigated at all, with the intention of disproving her allegations as opposed to investigating her complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.
The Commission is responsible for the certification and regulation of law enforcement officers and instructors.
§ 943.12, Fla. Stat.
In this case, the Commission seeks to take disciplinary action against Respondent's certification as a law enforcement officer. This disciplinary action by Petitioner is a penal proceeding, and Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin.
v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As reiterated by the Supreme Court of Florida,
Clear 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005), (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Section 943.13 establishes the minimum qualifications for certification of law enforcement officers in the State of Florida. Among those qualifications is the requirement that a law enforcement officer possess good moral character, as determined by a background investigation under procedures established by the Commission.
Once an officer is certified, section 943.1395(7) authorizes the Commission to define good moral character by rule for the purpose of imposing discipline. Subsection (6) outlines the procedure the Commission follows upon receiving a complaint against a law enforcement officer. Subsections 943.1395(7) and
(8) provide:
(7) 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 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. Upon the violation of such terms and conditions, the commission may revoke certification or
impose additional penalties as enumerated in this subsection.
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.
(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). (b)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.
Pursuant to the mandate in section 943.13(7), the Commission has defined good moral character for the purposes of discipline. Florida Administrative Code Rule 11B-27.0011(4)3/ provided in pertinent part:
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.
Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections . . .837.012,. . . 914.22, . . . F.S.
* * *
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), F.S.[4/]
Factually, the Amemded Administrative Complaint makes the following allegations to support a finding that Respondent violated section 943.1395(7):
2.(a) On or about February 22, 2007, the Respondent, John McAlpin, did unlawfully and knowingly use intimidation, or attempts thereto, or engaged in misleading conduct towards A.G., with intent to influence that person's testimony or cause that person to withhold testimony from an official investigation or proceeding.
On or about February 8, 2008, the Respondent, John McAlpin, did unlawfully make a false statement, which he did not believe to be true, under oath, not in an official proceeding, in regard to any material matter to Edward A. Fortune.
On or between January 24, 2007 and October 3, 2008 Respondent, John McAlpin, did corruptly use or attempt to use his official position as a law enforcement officer, or any
property or resource within his trust, or did perform his official duties in such a manner as to secure a special privilege, benefit, or exemption for himself, others, to wit: intentionally failed to investigate an allegation of sexual abuse of a minor by a perpetrator, Shelly Simpson, who is/was a personal friend/associate of John McAlpin; did purposely use his position as Chief of Police and primary investigator to attempt to cause the minor victim to recant her allegation of sexual abuse to protect Shelly Simpson, who is/was a personal friend/associate of John McAlpin; did purposely use his position as a Chief of Police and primary investigator to attempt to mislead the State Attorney's office regardng the credibility of the of the minor victim in order to thwart the prosecution of Shelly Simpson, who is/was a personal friend/associate of John McAlpin.
The Commission alleges that Respondent's conduct violates section 943.1395(7) and rule 11B-27.0011 by violating the provisions of section 914.22(1), Florida Statutes (2006), or any lesser included defenses. The relevant portions of section
provide:
A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
Withhold testimony, or withhold a record, document, or other object, from an official investigation or official proceeding;
Alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official investigation or official proceeding;
Evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official investigation or an official proceeding;
Be absent from an official proceeding to which such person has been summoned by legal process;
Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding; or
Testify untruthfully in an official investigation or an official proceeding, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from:
Attending or testifying in an official proceeding or cooperating in an official investigation;
Reporting to a law enforcement officer or judge the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding;
Arresting or seeking the arrest of another person in connection with an offense; or
Causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or from assisting in such prosecution or proceeding; or attempts to do so, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
For the purposes of this section:
An official proceeding need not be pending or about to be instituted at the time of the offense; and
The testimony or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.
In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance:
That the official proceeding before a judge, court, grand jury, or government agency is before a judge or court of the state, a state or local grand jury, or a state agency; or
That the judge is a judge of the state or that the law enforcement officer is an officer or employee of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant. (Emphasis added).
In this case, there is not clear and convincing evidence that Respondent acted in such a way to induce A.G. to withhold a record, document, or other object from an official investigation or proceeding; to alter, destroy, multilate or conceal an object of any kind; to evade legal process or to be absent from an official proceeding to which she had been summoned; or to hinder, delay, or prevent the communication to a law enforcement officer or judge information relating to the commission or possible commission of an offense. The possible violation here is whether Respondent used intimidation or threats to cause A.G. to withhold testimony or to testify untruthfully in an official investigation or official proceeding.
After listening to the tape of Chief McAlpin's
interrogation of A.G., the undersigned concludes that there is clear and convincing evidence that Respondent sought to induce
A.G. to withhold evidence or to testify untruthfully in an official investigation or official proceeding. It was clear that Respondent did not believe her story and was determined to get her to change it. However, his stated reasons for not believing her simply do not ring true. Inamuch as a violation of section 914.22(1) is a felony, Respondent is guilty of failing to maintain good moral character as defined in rule 11B- 27.0011(4)(a).
Even assuming that a violation of section 914.22(1) was not established, the lesser included offense in section 914.22(2)(a) and (d), i.e., intentionally harrassing A.G. to dissuade her from testifying in an official or cooperating in an official investigation, or causing a criminal prosecution to be sought or instituted, has been established by clear and convincing evidence. This lesser included offense would be a violation of section 943.1395(7) as defined in rule 11B- 27.0011(4)(b).
Section 837.012(1), Florida Statutes (2006), provides:
Whoever makes a false statement, which he or she does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mistaken belief that his
or her statement was not material is not a defense.
As a preliminary matter, Respondent asserts that no violation of this provision may be found because the Administrative Complaint does not specify what statement or statements made during the interview the Commission is asserting to be false. As support for his position, Respondent cites to Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Department of Professional Regulation,
563 So. 2d 805 (Fla. 1st DCA 1990). These cases, however, are distinguishable.
In Willner, the physician was found guilty of multiple violations of section 458.331(1), Florida Statutes, for violations occurring over a period of years. Some of the violations found by the hearing officer were not charged in the Administrative Complaint, and those charges were set aside by the appellate court. Here, a violation of section 837.012 was clearly charged.
In Ghani and Trevisani, the Administrative Complaints contained specific factual allegations upon which the respective statutory violations were grounded. In each case, the Board's findings of guilt were based on conduct other than that
specifically alleged in the Adminstrative Complaints and were set aside by the First District.
In this case, Respondent's claim is based not on the failure to allege facts or a violation of the law, but the specificity of those facts. To be sure, it would have been much more precise for the Commission to allege the specific statements made during the interview that it asserted were false. However, the complaint as written complies with the requirement of the Florida Administrative Code Rule 28-106.2015(4)(c), which specifies that an administrative complaint shall contain the facts or conduct relied upon to establish the violation. Compare rule 28-106.201(2)(e)("All petitions filed under these rules shall contain . . . . a concise statement of the ultimate facts alleged . . .").
Moreover, the undersigned notes that Respondent has been aware of the language in the Administrative Complaint since it was served upon him on January 13, 2011. Had he believed that the charges could not be maintained as a matter of law, it was incumbent upon him to either file a motion to dismiss or seek some clarification, by motion or through discovery, regarding what statements were at issue. The docket for this proceeding, however, indicates that no such motion was filed and no discovery was undertaken. Respondent cannot "sit on his hands, fail to voice his objections, and then claim prejudice" when a decision is entered which may adversely affect him. Procedural irregularies for which no objection is made are waived. E.J. Assocs., Inc. v. The John E. and Aliese Price Found., Inc., 515
So. 2d 763, 764 (Fla. 2d DCA 1987), (quoting Allstate v. Gillespie, 455 So. 2d 617 (Fla. 2d DCA 1984)). See also Williams v. Salem Free Will Baptist Church, 784 So. 2d 1232, 1234-35 (Fla. 1st DCA 2001).
In this case, Respondent submitted to an interview under oath, as part of FDLE's investigation. During that interview, he made three statements that were inconsistent with the testimony of other witnesses in this case: that he requested the the CPT tape and it was given to him on January 25, 2007 by Officer Tyus; that A.G.'s mother told him that she believed A.G. was not telling the truth; that the Amy Bates never told him that there may be other victims of sexual assault. As explained in the findings of fact, the first two statements are not necessarily statements that Respondent believed to be false. The Commission also asserts that Respondent told Mr. Fortune that
A.G. told him that nothing ever happened in the woods. However, when heard in the context of the entire interview, the statement is also not one that would support a finding of perjury not in an official proceeding. However, the Commission has established by clear and convincing evidence that Respondent stated in his sworn interview that he was not told by Amy Bates during his investigation that there might be other sexual victims. This
statement was false, and it is found that Respondent knew it to be false.
The Commission has established by clear and convincing evidence that Respondent violated section 837.012(2), and thereby violated section 943.1395(7) as defined by rule 11B- 27.0011(4)(b).
Finally, the Administrative Complaint charges Respondent with misusing his official position in violation of section 112.313(6), which provides in pertinent part:
(6) 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. . . .
"The prohibition against misuse of public office sweeps widely. Generically, it encompasses any misuse of office by a public officer or employee to 'secure a special privilege, benefit, or exemption for himself or others.'" Florida Comm'n on Ethics v. Sullivan, 430 So. 2d 928, 934 (Fla. 1st DCA 1983).
Clear and convincing evidence established that Respondent and Shelly Simpson had known each other most of their lives, and while not perhaps the closest of friends, were well acquainted and had played football together throughout their school days. Mr. Simpson was also a city employee at the time of the allegations. Chief McAlpin, a public officer as the Chief of Police, used his official position and performed his official duties in such a way so as to shape the contents of the
investigation against Mr. Simpson so that no charges would be filed. To be free of criminal prosecution is clearly a benefit to Mr. Simpson.
In reaching this conclusion, the undersigned has considered Respondent's refusal to coordinate with staff from the DCF because he "did not know them" notwithstanding his stated questions regarding things happening early in the investigation; his failure to follow-up with the first medical doctor to clarify why the exam had not been completed; his failure to interview anyone or to collect any physical evidence at the scene of the home, followed by his reliance of the lack of physical evidence when interviewing A.G.; the contents of his interview of A.G.; his own description of his interview of the suspect, Shelly Simpson; and his lack of cooperation with both DCF officials and the assigned prosecutor, Jonna Bowman.
Respondent relied heavily on the eventual acquittal of Mr. Simpson. However, this case is not about whether or not
Mr. Simpson should have been convicted or whether A.G. was telling the truth. The problem with this case is Respondent's belief from the beginning that Mr. Simpson was innocent and the result-oriented way he approached the investigation, to reach that conclusion. It was not Respondent's obligation to shape the investigation to suit his theory that his friend was innocent.
It was his obligation to investigate the matter fully so that the truth could be established one way or another. The evidence
indicates that Respondent never had any interest in doing that.
The Commission has established by clear and convincing evidence that Respondent misused his official position in violation of section 112.313(6), and therefore violated section 943.1395(7) as defined in rule 11B-27.0011.
The Commission has established Disciplinary Guidelines to provide notice of the range of penalties that are generally imposed for violations of section 943.1395(7). Fla. Admin. Code
R. 11B-27.005. For the violations found in this case, the penalty range is from prospective suspension to revocation.
The Commission seeks permanent recovation of Respondent's law enforcement certification. While the conduct alleged and proven is serious, there is no prior disciplinary history for Respondent, and evidence was presented that he enjoys a good reputation for character in the community. It is significant that those who testified to his good reputation for character were the Sheriff of Jackson County and the under sheriff for the county.
This is a case where, given his knowledge of and lifelong acquaintance with, the suspect Shelly Simpson, Respondent should have, at the very least, immediately assigned the investigation to someone else, or asked the JCSO to undertake the investigation. In his responses to Ed Fortune on this point, it appears that his pride got in the way of his common sense. While his actions were clearly improper, this one investigation
should not necessarily destroy an entire career.
DONE AND ENTERED this 26th day of October, 2011, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2011.
1/ The Amended Administrative Complaint alleges conduct from January 2007 to October 2008. The operative statute, section 943.1395, was not amended during this period of time.
2/ During his interview with Ed Fortune, Respondent states that he based some of his credibility assessments on A.G.'s mother's reaction to some of A.G.'s answers, making it sound like Christina Simpson was in the room with her during the interview. However, at the beginning of the interview, he tells her the conversation is "just between us," and at the end of the interview, he asked her to go get her mother so that he could talk to her.
3/ Rule 11B-27.0011 has been amended several times since the actions giving rise to these proceedings. However, none of the amendments change the definitions relevant to this case.
4/ Reference to the misuse of official position in violation of section 112.313(6) is in rule 11B-27.0011(4)(c), as opposed to (4)(a) or (b), cited in the Amended Administrative Complaint.
However, the Amended Administrative Complaint clearly references section 112.313(6) and Respondent was on notice that he was being charged with violating that provision.
Linton B. Eason, Esquire Elissa R. Savaadra, Esquire
William Furlow, Esquire Veronica L. Bayo', Esquire Grossman, Furlow & Bayo', LLC
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
H. Guy Green, Esquire Green Law Firm
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.
