STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1558

)

DONALD H. REED, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on October 12, 1982, and January 12, 1983, in Orlando, Florida. Susan Tully, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission. The Respondent did not appear, and no appearance was entered on his behalf on October 12, 1982. The Respondent appeared and represented himself on January 12, 1983.

The Criminal Justice Standards and Training Commission issued an Administrative Complaint against the Respondent, Donald H. Reed. The Commission is seeking to suspend or revoke the Respondent's law enforcement officer's certificate. The Respondent requested a formal administrative hearing. On June 7, 1982, the Commission forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on August 18, 1982. The Commission filed a Notion for Continuance, which was granted, and the final hearing was rescheduled to be conducted on October 12, 1982.

Copies of the original Notice of Hearing and the Amended Notice of Hearing were forwarded to the Respondent at the address he provided in his request for hearing. The Respondent did not appear at the hearing as scheduled, and no one appeared on his behalf. The Commission accordingly presented evidence in support of its Administrative Complaint in the Respondent's absence. The following witnesses testified on behalf of the Commission: Charles Reising, a police officer employed with the City of Orlando; and Michael Mankins, a police sergeant employed with the City of Orlando. Petitioner's Exhibits 1 and 2 were received into evidence.

Subsequent to the hearing, the Respondent filed a letter which was construed as a motion to reopen the hearing. He stated that he had not received the notice scheduling the hearing for October 12. The motion was granted with the stipulations that Petitioner would not be required to represent evidence that had already been presented and that the costs of subpoenaing witnesses for cross-examination would be maintained by Respondent. The hearing was reconvened

on January 12, 1983. The Respondent appeared and testified as a witness on his own behalf.

The Commission has submitted a proposed recommended order. The proposed findings of fact and conclusions of law set out therein have been adopted only to the extent that they have been expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues in this proceeding are whether the Petitioner has violated provisions of Florida Statutes relating to the certification of police officers as alleged in the Administrative Complaint, and, if so, what penalty should be imposed by the Commission.

FINDINGS OF FACT

1. The Respondent is certified with the Criminal Justice Standards and Training Commission as a law enforcement officer. He holds Certificate No. 02- 16422. From approximately March, 1976, until August, 1981, the Respondent was employed with the City of Orlando as a police officer.

   
   

2. On or about August 11, 1981, the Respondent was on duty as a uniformed police officer during the midnight shift. He was riding in a patrol car with another officer. The two officers observed a pickup truck in a parking lot with a white male in the driver's seat and a black woman in the passenger's seat.

   The Respondent identified the woman as a "known prostitute." The officers drove into the parking lot to investigate. The woman jumped out of the truck. She had a gun in her possession. The two officers successfully apprehended her. In the meantime, the driver of the truck had wandered away. The other police officer left the area, looking for the man. It took the other officer approximately five minutes to apprehend the man, who was quite intoxicated.

   During this time, the Respondent was alone with the woman. She appeared intoxicated or drugged. She inferred that Respondent should release her, unzipped his pants, and grabbed his penis. Respondent wanted to make a case against her on this basis. He called out to his partner in an effort to get his attention to come witness the incident, but was unable to reach him. Respondent withdrew from the woman and came to the conclusion that he could not make a case against her for the incident because of the lack of an additional witness.

   
   

3. Approximately a year before this incident, Respondent was working in uniform as an off-duty policeman at a lounge. He met the same woman involved in the later incident. After he finished his duties and changed clothes, he had a sexual encounter with her. The encounter was not an act of prostitution.

   
   

4. On August 11, the Respondent arrested the woman for being a felon in possession of a firearm. The next morning, the woman complained that the Respondent had agreed to do something about the arrest if she performed oral sex on him. An investigator with the police department's Internal Affairs Division interviewed the woman. The investigator then interviewed the Respondent. At the initial interview, the Respondent denied ever having had a sexual liaison with the woman. Two days later, the Respondent contacted the investigator and said he remembered some additional facts. In a second interview, the Respondent admitted having had sex with the woman on the earlier occasion. He continued to deny having had sex with her on August 11, 1981. He conceded, however, that she

   may have touched him in the area of his genitals while pleading for him not to arrest her. Later on that same day, the Respondent again contacted the investigator and said that he had more to say. A third interview was conducted, and the Respondent admitted that the woman committed the act as set out in Paragraph 2 above. During this time, the Respondent was experiencing personal difficulties. His contradictory statements to the investigator were in part the result of anxieties about his job and his personal life.

   
   

5. The State Attorney's Office in Orange County ultimately declined to prosecute the possession-of-a-firearm case against the woman on account of the potential embarrassment that the Respondent's testimony could have.

   
   

6. The Respondent's employment with the police department of the City of Orlando was terminated in August, 1981. He has not been employed in the law enforcement field since that time.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

   
   

8. Section 943.145(3)(c), Florida Statutes, provides that the Commission can revoke or suspend a law enforcement officer's certification on account of the following actions:

The commission of conduct by the cer- tificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross mis- conduct which seriously reduces the certificate holder's effectiveness to

function as a law enforcement officer . . .

The Respondent's actions in making false statements during the investigation by the City of Orlando Police Department constitute a violation of the provision. The actions constitute good grounds for suspending the Respondent's certification as a law enforcement officer.

RECOMMENDED ORDER

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

RECOMMENDED:

That a final order be entered by the Criminal Justice Standards and Training Commission suspending the Respondent's certification as a law enforcement officer for a period of six months.

RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.

COPIES FURNISHED:

Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Mr. Donald H. Reed

2803 Orange Center Boulevard Orlando, Florida 32809

Mr. G. Patrick Gallagher, Director Division of Standards and Training Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 82-001558

Orders for Case No: 82-001558