STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-3471

)

GRADY HENRY ATWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on August 26, 1983, in Quincy, Florida.

APPEARANCES

For Petitioner: Dennis S. Valente, Esquire

Division of Criminal Justice Standards and Training

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Grady Henry Atwell

Post Office Box 667 Quincy, Florida 32351

ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondent's law enforcement officer certification should be suspended, revoked, or otherwise disciplined for multiple violations of Section 943.145(3), Florida Statutes (1981). At the formal hearing the Petitioner called as witnesses Virgil P. Sandlin, David Charles Myers, Joseph Weil, and Neal Branch. Petitioner offered and had admitted into evidence four exhibits. The Respondent testified on his own behalf and offered no exhibits into evidence.

Subsequent to the formal hearing, the Respondent filed a motion to supplement the record and that motion is denied on the basis that the documents sought to be made a part of the record are irrelevant to these proceedings.

Respondent also filed a motion to dismiss and that motion is hereby denied. Counsel for Petitioner and Respondent filed proposed Findings of Fact and Conclusions of Law for consideration by the Hearing Officer. To the extent that

those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as irrelevant to the resolution of this cause.

FINDINGS OF FACT

1. At all times relevant to these proceedings the Respondent was and is the holder of law enforcement certificate number 02-13259. That certificate is now in inactive status.

   
   

2. During the months of April through November, 1981, the Respondent was an employee of the Florida Game and Fresh Water Fish Commission and was under the supervision of Blanchard Neal Branch.

   
   

3. While employed with the Commission as an investigator, Atwell was issued a Toyota pickup truck, firearms, credentials, and confidential identification. The identification was a driver's license with Atwell's cover name. This driver's license was to be used strictly for identification and Respondent had been instructed of this fact on several occasions prior to June, 1981. Respondent was also issued a credit card for the purchase of gasoline for the government vehicle only.

   
   

4. On June 24, 1981, Respondent was stopped for speeding by Florida Highway Patrol Trooper Virgil P. Sandlin. When stopped Respondent gave his name as Robert Leonard Austin and gave the trooper his confidential identification as his driver's license. The name, Robert Leonard Austin, was Respondent's cover name and the name that appeared on the license. This stop took place on U.S. 19 about five or six miles north of Inglis, Florida. The Respondent was given a ticket for driving 69 miles per hour in a 55-mile-per-hour zone. At the time he was stopped, Respondent had another individual in the truck with him.

   
   

5. Approximately a month after the citation was issued Respondent contacted Trooper Sandlin and asked to meet with him. Trooper Sandlin did meet with Respondent and Respondent showed him his badge and asked the trooper to speak with the judge and ask him to withhold adjudication on the speeding ticket. Trooper Sandlin said he would do it as a professional courtesy. During this meeting Respondent used the name of Bobby Austin.

   
   

6. As a result of the citation Respondent was found guilty and fined $25. The case was heard on August 13, 1981, and the fine was to be paid within ten days. The fine was not paid and the Department of Highway Safety and Motor Vehicles was notified to suspend Respondent's confidential driver's license. After learning of this, Captain Branch ordered Respondent to go to the court in Levy County and pay the fine.

   
   

7. At the time of the stop in Levy County on June 24, 1981, Respondent was assigned to an undercover investigation in Dixie County and had lost complete contact with his backups for the 24-hour period in which he had been stopped. Prior to being assigned to the Dixie County investigation, Respondent had been assigned to an investigation in Levy County, but was not authorized to work on that investigation during the time he was assigned to the Dixie County investigation.

   
   

8. Prior to June 24, 1981, Respondent had been counseled about driving at excessive speeds and had been cautioned to abide by the speed limits posted.

9. On October 31, 1981, Respondent was stopped for speeding near Chiefland, Florida. The officer did not get an official clocking on Respondent's truck but estimated his speed to be in the range of 55 to 70 miles per hour in a 30-mile-per-hour zone. When the Chiefland police officer, David

   C. Myers, stopped the Respondent, he shined his spotlight on Respondent's vehicle and Respondent got out of the vehicle with his hands up. The police officer had radioed in a description of the truck and was informed that a vehicle meeting that description had been involved in a domestic dispute earlier in the day. As a result of this information, when Respondent gave the officer his driver's license, the officer began to run a wanted check on the license, which carried a Quincy address. At this time Respondent gave the officer a second driver's license with the same picture. He also showed the officer his credentials and explained that he was in the area working undercover with the Game and Fresh Water Fish Commission. Respondent described for the officer the case on which he was working. At no time during this stop did the officer draw his weapon. No charges were brought by the officer.

   
   

10. After this incident Respondent informed Captain Branch, his supervisor, that he had had a run-in with a Chiefland police officer and that the officer had pulled a gun on him. Captain Branch called the police officer and questioned him about the incident. The officer denied pulling his gun and Captain Branch again questioned Atwell about the incident. Atwell again stated that the officer had pulled a gun and demonstrated the combat stance the officer had taken.

    
    

11. At the time he was stopped in Chiefland, Respondent was assigned to an undercover investigation in Levy County where Chiefland is located.

    
    

12. Because of problems relating to unauthorized trip extensions and problems with per diem (the method Respondent had used for claiming per diem), Respondent had been counseled and placed on a very strict schedule prior to October, 1981. He was instructed in each assignment as to when he would report to the assignment and when he would return. He was also given a call-in schedule and was instructed to call in and get authorization for any change or extension of his return time.

    
    

13. In October, 1981, Respondent had two unauthorized trip extensions. On or about October 9, 1981, Respondent was on a trip and extended the trip two or three days without authorization. He did not call in and his supervisor had no knowledge of his whereabouts for that two- or three-day period.

    
    

14. On October 23, 1981, Respondent left on a trip and was instructed to return no later than the morning of October 25, 1981. Respondent did not return and did not call in until October 27, 1981, when Captain Branch received a call from Respondent from his home in Quincy. He was two days overdue. When questioned about the unauthorized extension, Respondent stated he was with the subject of the investigation the entire time and could not call in. However, Respondent's investigative report revealed that he was not with the subject from midnight on October 24 to 1:00 p.m. on October 25, and from midnight on October

    25 to the afternoon of October 26. Respondent could have called in during these time periods.

    
    

15. During his employment with the Florida Game and Fresh Water Fish Commission the Respondent was counseled regarding irregularities in his per diem travel expense reports and vehicle cost reports. During the months of April through October, 1981, there were numerous discrepancies and unexplained irregularities in the travel expense reports, vehicle cost reports, law

    enforcement itinerary, and law enforcement investigative activity reports filed by Respondent. These irregularities include:

    
    

    1. A per diem report filed by Respondent reflects that he was on assignment in Levy County from 5:00 p.m. on April 9, 1981, through 8:00 a.m. on April 12, 1981. Per diem for this period was claimed and paid. On April 10, 1981, 20.7.gallons of gasoline were purchased in

       Quincy on Respondent's government credit card. On April 11, 1981,

       31.2 gallons of gasoline were purchased in Chattahoochee on Respondent's government credit card.

    2. The itinerary report filed by Respondent for April 14, 1981, indicates 8 hours of duty. However, Respondent's vehicle cost report for the same date indicates his vehicle was in Quincy (home) on April 14.

    3. On April 18, 1981, Respondent purchased 18 gallons of gasoline in Quincy. On April 21, 1981, Respondent purchased 30.7 gallons of gasoline in Quincy. Respondent's itinerary for this period states that he was off duty on April

       18 and 19 and worked in Tallahassee on April 20. The cost report for Respondent's vehicle indicates

       266 miles were driven to Tallahassee and back to Quincy and vicinity.

    4. On April 24, 1981, Respondent purchased 33.3 gallons of gasoline in Quincy and on April 27, 1981, purchased 35.4 gallons of gasoline in Quincy. The itinerary report filed by Respondent for this

       period reflects that he was off duty April 24 through April 26, 1981, and worked four hours in Tallahassee on April 27. Respondent's vehicle cost report shows Respondent's vehicle was idle during this period except for a trip to Tallahassee. 70 miles were reported as driven during this period, but 35.4 gallons of gasoline were purchased.

    5. On May 15, 1981, 32 gallons of gasoline were purchased on Respondent's government credit card. On May 16, 1981, 31.9 gallons of gasoline were purchased on Respondent's government credit card.

       These purchases were made on a credit card issued in the name of Fredrick R. Tedder, an alias used by Respondent in a prior case. On May 19, 1981, 28.3 gallons of gasoline were purchased

       by Respondent on his government credit card in Quincy, Florida. Respondent's itinerary indicates he was off duty

       May 16 and 17 and worked in Tallahassee on May 18. The purchase on May 16 was not logged on the vehicle cost report and

       no receipts were submitted for this purchase.

    6. On May 23, 1981, Respondent purchased 12.2 gallons of gasoline in Quincy and on May 26, 1981, purchased 32.3 gallons of gasoline in Quincy. Respondent's itinerary report shows he was off duty May 23 and 24, and worked four hours in Tallahassee on May

       25. The vehicle cost report shows the vehicle was idle on May 24 and made a trip to Tallahassee on May 25. 75 miles were reported as driven on these dates, but 32.3 gallons of gasoline were purchased.

    7. On June 6, 1981, Respondent purchased 17.4 gallons of gasoline in Quincy and on June 10, 1981, purchased 31 gallons of gasoline in Quincy. Respondent's itinerary report reflects that he was off duty June 6, 7, and

       8 and worked 6 hours in Tallahassee on June

       9. 18 miles were reported as driven on these dates but 31 gallons of gasoline were purchased. The purchase on June 6, was not logged on the vehicle cost report and Respondent submitted no receipts for this purchase.

    8. On June 11, 1981, Respondent purchased 11.2 gallons of gasoline in Crystal River, Citrus County, Florida. Respondent's travel voucher, itinerary report and investigative report

       show activities in Levy County from June 10 to June 12. The June 11 purchase was not logged on the vehicle cost report and no receipts were turned in. The license tag number recorded by the station attendant was not that of Respondent's commission-issued vehicle but was the tag number of a vehicle registered to Anita M. Simzyk of Inglis, Florida.

    9. On June 12, 1981, Respondent purchased 27.5 gallons of gasoline in Quincy and on June

       16 purchased 23.6 gallons of gasoline in Capps, Florida. Respondent's itinerary report shows he was off duty on June 13 and 14 and worked in Tallahassee 6 hours on June 15. The vehicle cost report shows Respondent's vehicle was idle on these dates except for a trip to

       Tallahassee on June 15. 70 miles were reported

       as driven on these dates, but 23.6 gallons of gasoline were purchased.

    10. On June 17, 1981, Respondent purchased

        36 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee at 9:00 a.m. on June 16, en route to Dixie County and returned to Tallahassee at 1:00 p.m. on June

        19. Respondent's investigative trip report indicates he arrived in Cross City, Dixie County, at 10:00 a.m. on June 16, went to Inglis in south Levy County from 10:00 p.m. to 11:30

        p.m. on June 16 and returned to Cross City until midday on June 19. The vehicle cost report and itinerary also indicate detail in Dixie County during this period.

    11. On July 1, 1981, Respondent purchased 19.9 gallons of gasoline in Chiefland, Levy County, Florida. Respondent's travel voucher indicates he left Tallahassee for Dixie County at 2:00 p.m. on June 30 and returned to Tallahassee at 8:00 p.m.

        on July 3. No investigative trip report was submitted for this period and the vehicle cost report and itinerary report indicate detail in Dixie County during this period.

    12. On July 9 and July 13, 1981, Respondent's itinerary report shows 10 hours duty and

        3 hours duty respectively. Respondent's vehicle cost report indicates his vehicle was idle on these two dates.

    13. On July 10, 1981, Respondent purchased 31.3 gallons of gasoline in Quincy and on July 14, 1981, purchased 29.3 gallons of gasoline in Quincy. Respondent's itinerary report indicates he was off duty July 4 and 5, worked in Tallahassee July 6 and 7, was

        off duty July 8, worked in Tallahassee July

        9 and 10, was off duty July 11 and 12 and worked in Tallahassee July 13. The vehicle cost report indicates Respondent's vehicle was idle on these dates except for trips

        to Tallahassee on July 6, 7, and 10. There were 196 miles reported as driven during this period, but 60.6 gallons of gasoline were purchased.

    14. A travel voucher filed by Respondent indicates he left Tallahassee for Inglis at 10:00 a.m. on July 22, 1981, and returned to Tallahassee on July 24 at 4:00 a.m. There was $100 in

        per diem paid for this trip but no investigative report was filed for this period indicating travel to Inglis. The vehicle cost report shows

        travel from Tallahassee to Key West on July 19, Key West to Inglis on July 22 and return from Inglis to Tallahassee on July 23. On July 20, 1981, Respondent purchased 32.9 gallons of gasoline in Quincy.

    15. On July 25, 1981, Respondent purchased

        33 gallons of gasoline in Quincy, Florida. On July 28, Respondent purchased 14.3 gallons of gasoline in Quincy. Respondent's travel voucher indicates he returned to Tallahassee at 4:00 a.m. on July 24. His itinerary indicates he was off duty on

        July 24, worked 7 hours on July 25, was off duty July 26, and worked 5 hours in Tallahassee on July 27. Respondent's vehicle cost report indicates his vehicle

        was idle on these dates except for trips to Tallahassee on July 25 and July 27. 230 miles were reported as driven during this period and 14.3 gallons of gasoline were purchased.

    16. On July 24, 1981, Respondent claimed investigative expense money. His itinerary for July 24, 1981, indicates he was off duty on July 24.

    17. On August 1 and 2, Respondent claimed investigative expense money of $8.75 and $6.50 respectively. Respondent's itinerary shows

        he was off duty both of these days.

    18. Respondent submitted no vehicle cost information for the period August 1 to August 10. The last logged mileage on July 31, 1981, was 52,282

        and the next logged mileage was 53,525 on August 10. 1,243 miles were reported as driven during this period and 950 miles were unaccounted for.

        On August 6, 1981, Respondent purchased

        37 gallons of gasoline in Quincy, Florida. Respondent's itinerary indicates he was off duty August 1 through 5. The July 6

        purchase was not logged on the vehicle cost report and no receipts were turned in for the purchase. Respondent's travel voucher indicates he left Tallahassee for Inglis

        at 11:00 a.m. on August 6. His investigative trip report indicates he arrived in Inglis

        at 4:30 p.m. on August 6 and returned to Tallahassee on August 10 at 8:30 p.m. The distance from Tallahassee to Inglis round trip is 290 miles. The Respondent purchased

        14.2 gallons of gasoline in Otter Creek and

        31.9 gallons of gasoline in Crystal River on August 10, 1981. The purchase in Otter Creek was not recorded on the vehicle cost report.

    19. On September 2, 4, and 8, respectively, Respondent purchased 23.2 gallons of gasoline, 29 gallons of gasoline, and

        27.4 gallons of gasoline in Quincy, Florida. Simultaneous with the purchase of 27.4 gallons on September 8, the Respondent also purchased 14.9 gallons of gasoline in Quincy. An itinerary filed by the Respondent indicates

        he was off duty from September 1 through September 3, worked 8 hours in Tallahassee on September 4, and was off duty September 5 through September 9. The vehicle

        cost report reflects that Respondent's government truck was idle during this time period except for the trip to Tallahassee on September 4. The 14.9 gallons of gasoline purchased on September 8 were not recorded on the vehicle cost report and no receipts were turned in for this purchase. 632 miles were recorded as driven and 94.5 gallons of gasoline were purchased during this time period.

    20. Respondent's itinerary indicates he worked

        7 hours on September 21, and the vehicle cost report indicates Respondent's vehicle

        was in Levy County on September 21. However, Respondent's trip report and travel vouchers show that he returned to Tallahassee at 10:00

        p.m. on September 20.

    21. Respondent's travel voucher reflects he left Tallahassee at 2:00 p.m. on September 24

        en route to Inglis. His investigative trip report states that Respondent arrived in Inglis at 6:00 p.m. on September 24 and went back and forth from Inglis to Floral

        City until September 29. Respondent's travel voucher and trip report state that he returned to Tallahassee at 7:00 p.m. on September 29.

        However, an additional day of per diem for September 30, was added after the last entry on September 29.

    22. On October 1, 1981, Respondent purchased 23 gallons of gasoline in Quincy. Respondent's travel voucher stated he returned from Inglis at 7:00 p.m. on September 29 and the recorded ending mileage was 59,529.

        Respondent's itinerary report indicates he worked in Tallahassee 6 hours on September 30 and 10 hours on October 1. The recorded ending mileage on October 1 was 59,870. 341 miles miles were recorded as driven during this

        period and 23 gallons of gasoline were purchased.

    23. On October 6, Respondent's itinerary report indicates he worked 6 hours. His vehicle

        cost report for the same date reflects his vehicle was idle that date.

    24. Respondent's travel voucher indicates he left Tallahassee at 5:30 a.m. en route to Cross City and returned to Tallahassee at 11:00 p.m. the same day. Respondent's itinerary report indicates he was on duty

        3 hours that date. Respondent's travel voucher states that he left Tallahassee at 5:30 a.m. on October 13, en route to Cross City and returned at 11:30 p.m. the same day. His itinerary report shows Respondent was off duty on October 13. The vehicle cost report indicates travel from Quincy

        to Cross City on both October 12 and October 13.

    25. On October 15, 1981, Respondent purchased

        23.8 gallons of gasoline in Chiefland, Levy County, Florida. His itinerary report for the same date indicates he was off duty.

        
        

16. The vehicle issued to Respondent was a four-cylinder Toyota pickup truck with dual fuel tanks. This truck was to be used for official state business only.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

    
    

18. The Criminal Justice Standards and Training Commission within the Department of Law Enforcement has the authority to suspend or revoke law enforcement officer certificates for these grounds set forth in Section 943.145(3), Florida Statutes (1981)

    
    

19. In the instant case, the Respondent has been charged with a violation of Section 943.145(3)(c), Florida Statutes (1981), which provides as a ground for revocation or suspension:

    
    

    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.

    
    

20. The acts set forth in the Findings of Fact above constitute gross insubordination and gross misconduct on the part of Respondent. Respondent's failure to obey orders and follow instructions and his willful disregard of call-in procedures and return times after having been counseled on several occasions substantially reduce his effectiveness as a law enforcement officer. This, coupled with numerous unexplained discrepancies and irregularities in the travel extense, vehicle costs, law enforcement itinerary, and law enforcement investigative reports filed by Respondent, seriously reduces Respondent's trustworthiness as a law enforcement officer and prior to his resignation from

the Game and Fresh Water Fish Commission necessitated extraordinary supervisory restrictions and limitations on Respondent's travel. It is therefore concluded that the appropriate remedy is revocation of Respondent's law enforcement officer certificate.

RECOMMENDATION

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

That the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of violating Section 943.145(3)(c), Florida Statutes (1981) , and revoking Respondent's law enforcement officer certificate.

DONE AND ENTERED this 27th day of March, 1984, at Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1984.

COPIES FURNISHED:

Dennis S. Valente, Esquire Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mr. Grady Henry Atwell Post Office Box 667 Quincy, Florida 32351

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Daryl G. McLaughlin, Director Division of Criminal Justice

Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 82-003471

Orders for Case No: 82-003471