STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-2809

)

RICHARD N. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on May 8, 1987, in Lake City, Florida.

The issue for determination is whether Respondent's law enforcement and correctional officer certification should be revoked based on the charges alleged in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Stephen A. Smith, Esquire

101 East Madison Street

P. O. Box 1792

Lake City, Florida 32056-1792 BACKGROUND

By Administrative Complaint dated July 16, 1985 and filed with the Division of Administrative Hearings on August 20, 1985, the Petitioner seeks to revoke Respondent's law enforcement and correctional officer certification. As grounds therefor, it is alleged that Respondent on or about February 15, 1984, did then unlawfully make a false statement regarding a material matter,

while under oath in an official proceeding in violation of Section 943.1395(5) Florida Statutes and thereby failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.

This cause was originally scheduled for hearing on December 3, 1985 but due to Petitioner's difficulty in obtaining a transcript of Respondent's testimony before the Grand Jury of the Third Judicial Circuit, in and for, Columbia County, Florida, on February 15, 1984 and May 9, 1984, the hearing was cancelled and the parties were ordered to file a status report within sixty

1. days. At the expiration of the sixty (60) days, Petitioner was still experiencing difficulty in obtaining the transcript and this cause was placed in abeyance. On September 29, 1986, Petitioner advised the undersigned that the matter should be scheduled for hearing. A hearing was scheduled for December 17, 1986, but during the course of the hearing it was agreed to continue this cause until the errors in the page numbers of the Grand Jury transcript were corrected. Additionally, Petitioner agreed to file its Proposed Findings of Fact and Conclusions of Law with the understanding that Respondent could request further hearing on the matter if the page corrections warranted a need for further testimony. Respondent requested another hearing on this matter which was scheduled and heard on May 8, 1987.

   At the hearing on December 17, 1986, Petitioner's exhibits 1-4 were received into evidence. Exhibits 1 and 2 were the

   transcript of Respondent's testimony before the Grand Jury of the Third Judicial Circuit, in and for, Columbia County, Florida, February 15, 1984 and May 9, 1984, respectively. Petitioner offered no further exhibits at the May 8, 1987 hearing.

   Petitioner presented no witnesses at either hearing. Respondent testified on his own behalf at the hearing on May 8, 1987 but offered no documentary evidence at either hearing.

   
   

   The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. The Respondent was certified as a law enforcement and correctional officer by the Criminal Justice Standards and Training Commission on June 26, 1979, and Respondent was issued certificate numbers 02-023577 and C-1097.

   2. At all times material to this proceeding, Respondent was a certified law enforcement and correctional officer and was employed as a deputy sheriff by the Columbia County Sheriff's Department holding the rank of lieutenant. Respondent had been employed by the Columbia County Sheriff's Office since 1975, except for the period from 1979 to 1981.

   3. The Respondent appeared and gave sworn testimony before the Grand Jury of the Third Judicial Circuit of Florida, in and for, Columbia County, Florida (Grand Jury) on February 15, 1984.

      
      

   4. On or about May 8, 1984, Respondent was interviewed by Special Agent Harry L. Peel of the Federal Bureau of Investigation and agents of the Florida Department of Law Enforcement (FDLE). Either before or during this interview, Respondent requested a polygraph examination which was administered by Peel. As a result of the polygraph examination, Respondent was told by Peel that he was apparently "forgetting something", and after further discussion with Peel and agents of FDLE, Respondent agreed to voluntarily go back before the Grand Jury and "straighten all this up."

      
      

   5. On May 9, 1984, Respondent appeared before the Grand Jury for the second time to give sworn testimony. Prior to testifying, Respondent was questioned by Eugene T. Whitworth, Assigned State Attorney, James R. Murray, Assigned Assistant State Attorney and Dan Clark, Assigned Assistant State Attorney as to Respondent's understanding that no "deal" had been made and that no immunity was attached to his testimony. It was then explained to Respondent by Whitworth, Murray and Clark that any determination of perjury charges in regard to Respondent's testimony before the Grand Jury would be "up to" the members of the Grand Jury.

      
      

   6. A review of Respondent's responses during this dialogue with different members of the Assigned State Attorney's Office shows that Respondent was concerned about his previous testimony before the Grand Jury on February 15, 1984 but that Respondent did not think he had lied during his previous testimony. Respondent felt that he had failed to tell the Grand Jury the "whole truth" in his previous testimony and that there may be inconsistencies between his previous testimony and the testimony he was prepared to give on May 9, 1984.

      
      

   7. Prior to testifying before the Grand Jury on May 9, 1984, Respondent was advised by Whitworth to call his attorney and discuss the probable consequences of testifying before the Grand Jury on May 9, 1984. After calling his attorney, the Respondent voluntarily testified before the Grand Jury.

      
      

   8. There was insufficient evidence to prove that Respondent had told Peel that he had lied to the Grand Jury in his previous testimony on February 15, 1984.

      
      

   9. The Respondent was assigned by Sheriff Spradley to the Wynnemore Farm's horse racing track (Track) after Jack Wynne, owner of the Track, complained about the Sheriff's Auxiliary not

      properly performing its duty at the Track which was being paid for by Wynne.

      
      

   10. On February 15, 1984 in response to questions concerning his knowledge of the unlawful gambling activity at the Track, Respondent "had thoughts about it, but could never prove it" and nobody approached him "to make any bets or nothing." Respondent "weren't sure there was anything illegal going on, other than hearing people talk on the streets." On May 9, 1984, in reference to the gambling activity at the track, Respondent testified that he told Sheriff Spradley at about the time he was assigned to the Track that "there may be a little gambling going on out there" and that Sheriff Spradley replied "to just keep the auxiliary up front" and "not to worry about the gambling because it wouldn't be that big or nothing like that."

       
       

   11. On February 15, 1984, Respondent was not positive that he had discussed the situation at the Track with Sheriff Spradley but, testified that "I might have. I'm not positive. I couldn't swear to that, but it seems that I did, that I might have went to him and told him that I thought there was a little bit of gambling...." And further testified that the Sheriff replied, "I'll get it checked into." However, Respondent did recall speaking to Felix Eades, Chief Investigator for the Sheriff's Office, before the arrests about the possibility of "some gambling going on" and that Eades' response was that he "would check into it, and it didn't sound like much to him neither." On May 9, 1984, while testifying before the Grand Jury, Respondent recalled a conversation with Sheriff Spradley wherein the Sheriff told Respondent that "there may be some gambling going" but for Respondent "to overlook it."

   12. On February 15, 1984 Respondent testified that it was not one of his responsibilities to inform Wynne of the presence of any law enforcement officers at the track who may be conducting an investigation. On May 9, 1984 Respondent testified that Wynne asked to be informed if the Respondent saw any investigators at the Track. Respondent did not inquire any further, and Wynne did not explain his reasons for wanting to know about the investigators.

       
       

   13. On February 15, 1984 Respondent could not recall any discussion with any one, including Wynne, before the arrests were made concerning an ongoing investigation of the activities at the Track. On May 9, 1984 Respondent recalled that he had informed Wynne about a week before the raid took place "that he was fixing to be raided."

       
       

   14. On February 15, 1984 Respondent could not recall any conversation with any member of the Sheriff's Office, particularly Wade Harris, in regard to being involved in a

       controlled substance violation such as removing contraband from the evidence room. On May 9, 1984 Respondent recalled a conversation wherein Harris told Respondent that Harris had removed marijuana from the evidence room, hauled it to Sisters Welcome Road and transferred the marijuana to Sheriff Spradley's car. Respondent also recalled a conversation with Harris wherein Harris and someone else raided a house in Ft. White, Florida to steal some marijuana.

       
       

   15. Although there were some discrepancies in Respondent's February 15, 1984 testimony when compared to his May 9, 1984 testimony, a review of the May 9, 1984 testimony shows that Respondent did not consider his February 9, 1984 testimony to be false but only a failure of "not coming in here the first time and telling everything."

       
       

   16. Respondent resigned from the Columbia County Sheriff's Office shortly after his appearance before the Grand Jury on May 9, 1984 and subsequently was hired by the Department of Corrections as a correction officer. During Respondent's tenure with the Department of Corrections he was given good performance ratings and promoted from a tower guard to being in charge of a dormitory with 172 inmates.

       
       

   17. Respondent is presently employed by L. J. Kennedy Trucking Company as shipping manager and has held that position for approximately 1 1/2 years.

       
       

   18. There is no evidence in the record that Respondent was ever charged with perjury before the Grand Jury.

       
       

   19. Respondent's testimony at the hearing that he had been truthful on both occasions but "remembered" a number of facts after he testified on February 15, 1984 and that he was "scared to death" was credible and consistent with his testimony before the Grand Jury.

       
       

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57, (1), Florida Statutes.

       
       

   21. Section 943.1395(5), Florida Statutes (1985), empowers the Criminal Justice Standards and Training Commission (Commission) to revoke the certification of any law enforcement officer or correctional officer who is not in compliance with any one of those enumerated requirements listed in Section 943.13(1)- (10), Florida Statutes (1985). At the time of the alleged acts Section 943.145(1),(3)(a), Florida Statutes (1983) empowered the

       Commission to revoke or suspend the certification of any law enforcement officer or correctional officer who was not in compliance with Section 943.13(1)-(7), Florida Statutes (1983). This section has since been renumbered as Section 943.1395, Florida Statutes (1985), and amended to delete the Commissioner's authority to suspend a law enforcement officer's or correctional officer's certification.

       
       

   22. The alleged misconduct of which Respondent is accused purportedly puts him in noncompliance with Section 943.13(7), Florida Statutes (1983). Although Section 943.13, Florida Statutes (1983) was subsequently amended by Chapter 84-258, Section 6, Laws of Florida, the language in subsection (7) was not changed.

       
       

   23. In disciplinary proceedings, the burden of proof is upon the regulatory agency to establish facts upon which it allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioner has failed to meet its burden to show, that Respondent intentionally made false statements before the Grand Jury on February 15, 1984 and thereby lacked good moral character requiring revocation or suspension of his certification as a law enforcement officer or correctional officer.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint filed herein.

Respectfully submitted and entered this 23rd day of July, 1987.

WILLIAM R. CAVE, 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 23rd day of July, 1987.

COPIES FURNISHED:

Rod Caswell, Director Criminal Justice Standards

Training Commission Department of Law Enforcement Post office Box 1489 Tallahassee, Florida 32302

Robert R. Dempsey Executive Director

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

Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Stephen A. Smith, Esquire

101 East Madison Street

P. O. Box 1792

Lake City, Florida 32056-1792

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulinqs on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Findings of Fact 4 and 15 in substance.

2. Rejected as not supported by substantial competent evidence in the record.

Rulings on Supplemental Findings of Fact Submitted by Petitioner

1. Rejected as immaterial and irrelevant.

2.-3. Adopted in part in Finding of Fact 19, otherwise rejected as immaterial and irrelevant.

4.-6. Rejected as immaterial and irrelevant.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 3.

1. Adopted in Finding of Fact 4.

2. Adopted in Finding of Fact 5.

3. Adopted in part in Findings of Fact 10 and 11, otherwise rejected as argument.

4. Adopted in part in Findings of Fact 6 and 15, otherwise rejected as argument.

5. Adopted in part in Findings of Fact 4, 6, 14, 15 and 19, in part, otherwise rejected as argument or as immaterial and irrelevant.

6. Rejected as argument.

7. Adopted in part in Findings of Fact 4 and 19, otherwise rejected as argument.

Docket for Case No: 85-002809

Orders for Case No: 85-002809