STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-921

)

FULLER WARREN CREWS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Jacksonville, Florida, on August 6, 1980, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Police Standards and Training Commission (PSTC) against Fuller Warren Crews. The Amended Administrative Complaint sought to revoke the certification by the PSTC of Crews on the basis that he had been convicted of a felony and a misdemeanor involving moral turpitude and lacked good moral character contrary to Sections 943.12(4) and (7), Florida Statutes.

Chapter 943, Florida Statutes, which controls this case was amended by Chapter 80-71, Laws of Florida (1980) , which was effective July 1, 1980. This law must be applied to this controversy.

APPEARANCES

For Petitioner: Arthur C. Wallberg, Esquire

James Corrigan, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

For Respondent: William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

To understand the issues as they developed, a summary of the facts is helpful. Prior to 1959, Fuller Warren Crews was a police officer in Jacksonville, Florida. In 1959, Crews pled guilty to a misdemeanor of unlawful damage to telephone equipment on or about December 28, 1958. Crews was permitted to resign from the Jacksonville Police Department rather than face disciplinary action. In 1960, Crews was convicted of the felony of possession of tools used in committing crimes and the misdemeanor of simple larceny in Georgia. Crews served a jail sentence in Georgia. Crews was subsequently pardoned in 1975 of the felony conviction, and his civil rights were restored in Georgia. In 1976, Crews sought employment as a deputy sheriff in Nassau County, Florida, and began the certification process with the Police Standards and Training Commission. This process led to a full disclosure to the Nassau County

Sheriff of his prior offenses and submission of appropriate materials to include fingerprint cards to the Commission for certification. Subsequently, on August 20, 1976, the full Commission conducted a hearing with Crews at which the Nassau County Sheriff and Crews appeared. At that hearing questions were asked concerning both Crews' convictions and his dismissal from the Jacksonville Police Department. Crews answered questions about these matters. Thereafter, Crews was duly certified by the Commission on February 3, 1978.

Based upon Chapter 943, Florida Statutes, as amended, the legal issues are:

1. Does the police Standards and Training Commission have authority to revoke the certification of Fuller Warren Crews?

   
   

2. Has Fuller Warren Crews maintained his qualifications for certification?

The factual issues are:

1. When was Crews convicted?

   
   

2. When was Crews certified?

   
   

3. Was Crews duly certified?

   
   

4. Is Crews possessed of good moral character?

FINDINGS OF FACT

1. Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges.

   
   

2. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail.

   
   

3. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia.

   
   

4. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975.

   
   

5. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse.

   
   

6. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record.

   
   

7. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years.

8. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification.

   
   

9. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff.

   
   

10. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184,

    105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190)

    
    

11. Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Amended Administrative Complaint seeks to revoke Crews' certification based on acts in 1958 and 1959, and convictions in 1959 and 1960. Based on this conduct, the complaint alleges that Crews fails to meet the criteria stated in Sections 943.13(4) and (7), Florida Statutes. This section provides in pertinent part:

    
    

    After August 1, 1974, any person employed as a police officer shall: . . .

    (4) Not have been convicted of a felony or of a misdemeanor involving "moral turpitude" as the term is defined by law and who has not been released or discharged under any other

    than honorable conditions from any of the Armed Forces of The United States . . .

    (7) Have a good moral character as determined by investigation under procedures established by the commission.

    
    

13. The provisions of Chapter 943, Florida Statutes, at the time the Administrative Complaint was filed did not grant any authority for the Commission to revoke a certification. Chapter 943 was amended by Chapter 80-71, Laws of Florida (1980) to authorize the Commission to revoke or suspend certificates. This law became effective prior to the date of the formal hearing and must be applied. However, the authority of the PSTC to revoke a certification is limited by this law.

    
    

14. Chapter 80-71, Laws of Florida (1980), regarding the Commission's authority to revoke provides as follows:

    
    

    943.145 Certification and decertification of law enforcement officers; grounds; investigations and reports; hearings; exceptions.--

    1. Grounds for revocation or suspension of certification shall consist of:

       1. Failure of the certificate holder to maintain qualifications established in s.

          943.13 or specific standards promulgated thereunder as rules;

       2. Falsification or a willful material misrepresentation of information in an employment application to an employing agency;

       3. The commission of conduct by the certificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certificate holder's effectiveness to function as a law enforcement officer.

    
    

15. The record in this case reflects that the application for certification of Fuller Warren Crews was pending before the Police Standards and Training Commission from January, 1976 until February, 1978. Crews and the Nassau County Sheriff's Department provided the PSTC with the applicant's basic personal data in January of 1976. It is clear that Crews' felony conviction and dismissal from the Jacksonville Police Department were disclosed at the onset to the Commission. Various impediments to certification raised prior to August 20, 1976, by the PSTC were overcome by subsequent submissions to the Commission from Crews. On August 20, 1976, Crews and the Sheriff appeared before the PSTC to "appeal" the Commission's decision not to certify Crews. The result of that informal hearing was a denial of certification based upon application of Chapter 112.011, Florida Statutes, regarding the effects of Crews' pardon, and based upon the Federal Firearms Control Act, 18 U.S.C. 922(h), which prohibited convicted felons from possessing firearms. At this August 20, 1976, meeting Crews was questioned by Robert Shevin, Attorney General of Florida and a member of the Commission, concerning the reason for Crews' dismissal from the Jacksonville Police Department. Crews answered his question accurately.

16. The Sheriff's Department and Crews responded to this denial by obtaining additional approval from the federal authorities for Crews to carry a firearm. The PSTC reset this matter for the Commission's reconsideration in January, 1977. The Chief Deputy of the Nassau County Sheriff's Department and Crews appeared at that meeting. Because of changes in the Commission's make up, the matter was deferred until February 3, 1978. At this time the Commission had had Crews' original request for certification for more than two years.

    
    

17. At the February 3, 1978 meeting, the PSTC debated the matter of Crews' pardon as it affected his certification. Of the two objections originally raised to his certification in August of 1976, it was the only remaining concern. Based on the legal advice of the Attorney General's representative, the Commission voted to certify Crews at the February 3, 1978 meeting. The fact that the Commission's action was a final action is reflected in its minutes and in the letter of its chairman to a concerned fellow law enforcement officer dated February 28, 1978.

    
    

18. The provisions of Chapter 120, Florida Statutes, which were in effect in February of 1978 clearly permitted an informal consideration of the issues by the PSTC. The Commission's certification of Crews was final agency action as defined by Chapter 120, Florida Statutes. It is equally clear that there was no appeal of this final agency action.

    
    

19. The need for finality in an action is just as basic and necessary in a quasi-judicial administrative action as it is in a purely judicial proceeding. Final agency action inherently disposes of all the issues which are involved in that final decision. This concept is at the root of the doctrines of estoppel and bar and res judicata. Clearly the final agency action of the PSTC in certifying cuts off the ability of the Commission to revisit its decision and apply different legal theories and further investigative effort to reach a different result.

    
    

20. The legislature has given further emphasis to the finality doctrine in Chapter 80-71, Laws of Florida (1980), by limiting the authority of the PSTC to revoke a certification to the failure to maintain qualifications and falsification or misrepresentation of information in an employment application to an employing agency. Looking at the grounds alleged for revocation, only two of these can possibly relate to Crews' conduct: The failure to maintain good moral character and falsification or misrepresentation of facts in an employment application to an employing agency. The record reveals clearly that there has been no change in Crews' moral character and that his character is good. No evidence was presented that Crews falsified or misrepresented any information on his employment application to the Sheriff's Department. To the contrary, the Sheriff indicated Crews was open and forthright about his prior criminal conduct. Neither was any evidence presented concerning any failure of Crews to maintain his qualifications.

    
    

21. Much was made at the administrative hearing of who had Crews' RAP sheet and whether the PSTC was aware of Crews' difficulties with the Florida authorities when it voted to certify him on February 3, 1978. The Commission's position is that it lacked knowledge of the Florida misdemeanor conviction and that Crews misrepresented those facts. Clearly, the Nassau County Sheriff's Department had knowledge of Crews' RAP sheet and his Florida record prior to February 3, 1978. Under the PSTC procedures for certification, the Commission had delegated the authority to conduct background investigations to the employing law enforcement agency. This scheme of regulation is implicitly

    approved by the provisions of Chapter 80-71, supra. In delegating this portion of the certification process, the PSTC made the employing law enforcement agency the Commission's agent, and the Commission is bound by what its agent does and what it fails to do. It is immaterial whether the PSTC had Crews' RAP sheet before or after February 3, 1978, because the Sheriff's Department did have the RAP sheet and was informed of Crews' Florida record before that date. There was full disclosure to the employing agency prior to certification, and Crews fully responded to the Commission's inquiries.

    
    

22. A collegial body cannot delegate power to its staff or others and then revisit its decisions on the basis that the members of the body were not individually informed after it has taken a final action based upon the recommendations of those to whom it has delegated authority. In this case, the Commission acted based upon the recommendation of its staff and the Sheriff, and it is bound by those recommendations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character.

DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980.

COPIES FURNISHED:

Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol

Tallahassee, Florida 32301

James Corrigan, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. CASE NO.: 80-921

FULLER WARREN CREWS,

Respondent.

/

ORDER

This matter came on for final action by the Law Enforcement Officer Decertification Panel of the Criminal Justice Standards and Training Commission pursuant to Section 120.57(1)(b)9., F.S., and Ch. 81-24, Section 5(9), Laws of Florida, at a public meeting on September 11, 1981, in Tallahassee, Florida, for consideration of the recommended order of the hearing officer entered herein and for consideration of the exceptions filed by the Petitioner.

FINDINGS OF FACT

1. Following a review of the complete record, the Panel finds that the findings of fact excepted by Petitioner in Paragraphs one (1) and two (2) of Petitioner's Exceptions and Objections to the Amended Recommended Order are based upon competent substantial evidence and comply with the essential requirements of law and are therefore rejected.

   
   

2. The Panel hereby adopts and incorporates by reference the Findings of Fact of the hearing officer.

CONCLUSIONS OF LAW

1. Petitioners exceptions to the conclusions of law contained in Paragraphs three (3), five (5), six (6), and seven (7), of Petitioner's Exceptions and Objections to the Amended Recommended Order are found to be without merit and are rejected.

   
   

2. Petitioner's exception to the Conclusions of Law contained in Paragraph four (4) of Petitioner's Exceptions and Objections to the Amended Recommended Order is accepted and the hearing officer's conclusion that knowledge held by an

   employing agency is imputed to the Commission (the employing agency becomes the agent of the Commission) is rejected.

   
   

3. Upon examination of the entire record in these proceedings and the law as applied to the facts as accepted, this Panel adopts and incorporates by reference the Conclusions of Law of the hearing officer as modified above.

Having considered the recommended order, including the Findings of Fact and Conclusions of Law, exceptions filed by Petitioner and the oral arguments of both counsel, this Panel adopts and incorporates by reference the Recommendation of the hearing officer. IT IS THEREFORE

ORDERED AND ADJUDGED that no action be taken against the certification of Fuller Warren Crews.

DONE AND ORDERED this 11th day of September, 1981.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

By: Don Moreland, Sheriff Chairman

cc: All Counsel of Record.

Fuller Warren Crews

Docket for Case No: 80-000921

Orders for Case No: 80-000921