STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0324

)

JOHN G. MACKO )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 7, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Legal Affairs Post Office Box 1498 Tallahassee, Florida 32302

For Respondent: John G. Macko, pro se

5115 Alpha Court

Lot 19

Tampa, Florida 33609

By Administrative Complaint dated August 31, 1987, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke the certification of John G. Macko, Respondent, as a law enforcement officer. As grounds therefor, it is alleged that Respondent, while employed as a police officer by the City of Tampa, Florida, knowingly permitted persons to possess and smoke cannabis, a controlled substance, in his presence without taking any official action or reporting the incident; and that he made a false statement, under oath, to an investigator of the Tampa Police Department with intent to mislead the investigator in an internal investigation.

At the hearing, Petitioner called three witnesses, Respondent called two witnesses, including himself, and two exhibits were admitted into evidence.

Proposed findings were not timely submitted by the parties.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer on April 6, 1984, and has been continuously so certified since that time.

2. After the Tampa police arrested Doug Jernigan in August, 1986, on charges of armed robbery committed between January and July, 1986, including bank robberies, the Tampa police learned that on July 18, 1986, Jernigan rented a limousine and visited several bars with one of his companions being a police officer.

   
   

3. When this information was passed to the Bureau of Internal Affairs, an investigation was started, and it was learned that Respondent was the police officer involved with Jernigan on the evening of July 18-19, 1986. Thereafter, the investigation centered on Respondent's knowledge of Jernigan and any criminal offenses of which Respondent may have been aware.

   
   

4. During this investigation, Respondent cooperated fully with the investigators, including the taking of a polygraph test, and two or more taped interrogations.

   
   

5. In addition, the investigator interrogated the chauffeur of the limousine, Jernigan, and at least one other passenger who was in the limousine on July 18, 1986. All of these witnesses denied that any drugs were used in Respondent's presence, stated that the party continued for several hours during which time the four people involved consumed a large quantity of alcohol, and that all were quite intoxicated.

   
   

6. Respondent was only casually acquainted with Jernigan who he had seen as an employee of the Temple Terrace Bar on previous occasions. On July 18, Respondent encountered Jernigan at the Temple Terrace Bar as a patron who told Respondent that he had hired a limo for the evening and invited Respondent to join him for some drinks. Jernigan had a large roll of bills which he told Respondent he had won at the gambling table at Atlantic City. Respondent joined Jernigan, and they proceeded to another bar where a third and perhaps fourth companion was picked up. The limo then drove the new companion (McGahee) to his residence to change clothes, and while McGahee and Jernigan were let off, the driver took Respondent to Respondent's apartment to change clothes, waited for him, returned to pick up Jernigan and McGahee, and then they proceeded on the bar hopping escapade.

   
   

7. The investigation by the Internal Affairs Division disclosed that Respondent had no knowledge of the crimes Jernigan had committed between January and July, 1986. During a second interrogation of Respondent which continued for two hours by an experienced investigator, Respondent was repeatedly told that the other occupants of the limo had acknowledged use of drugs during the night of July 18-19, and that the polygraph exam showed Respondent was not telling the whole truth about his knowledge of Jernigan's criminal activities and of the use of drugs on July 18. Respondent, after earlier denying that any drugs were used in his presence, finally acknowledged that maybe a joint (of marijuana) was passed around in the limo, but that he never took a puff.

   
   

8. Once Respondent acknowledged during this two hour interrogation that maybe marijuana was smoked that evening, this became a fact in all further questioning of Respondent regarding his knowledge of Jernigan's criminal activities and further questioning regarding the use of cocaine on that evening. Respondent steadfastly denied any knowledge of any other activities of Jernigan or that he ever saw anyone use cocaine on July 18-19, 1986.

   
   

9. James McGahee was one of the passengers in the limo July 18-19. Either he or Jernigan had some that evening, and when they were dropped off at McGahee's apartment for McGahee to change clothes, they ingested some cocaine.

   McGahee does not smoke marijuana, and to his knowledge, no marijuana was used in the limo that evening. McGahee operated a heavy duty wrecker and had seen Respondent on several occasions at the scene of an accident to which McGahee and his wrecker had been called. He had never socialized with Respondent prior to or since July 18- 19, 1986.

   
   

10. Respondent denies that, to his knowledge, any marijuana or other drugs were used in his presence on the evening of July 18-19, 1986, and that his sworn statement taken during his two hour interrogation that a joint had been passed around in the limo was not true. He gave the statement because the interrogator had convinced him the other passengers had admitted using drugs, and he assumed they had done so. To Respondent marijuana was deemed less serious than cocaine.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Respondent is here charged with violating Sections 943.13(7) and 943.1395 (5), Florida Statutes, which provide that to become certified an applicant must, inter alia, have a good moral character as determined by a background investigation under procedures established by the Commission, and a certificate may be revoked if the certificate holder is not in compliance with Section 943.13(7). Petitioner essentially is alleging that by giving contradictory statements to the interrogator under oath, Respondent made a false statement with intent to-mislead the investigator and this constitutes immorality, i.e., Respondent does not have good moral character.

    
    

13. This is a license revocation proceeding, and Petitioner has to prove lack of good moral character by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. A careful review of the tapes of Respondent's interrogation (Exhibits

    1 and 2) leads to the conclusion that Respondent was sincere and earnest in trying to tell everything he remembered about the events that took place on the evening of July 18-19, 1986, and was somewhat manipulated by an experienced and clever interrogator. He was told half-truths that other occupants of the limo had admitted doing drugs that night, but not told that all had denied any use in the limo or in Respondent's presence. Repeated reference was made to polygraph results indicating Respondent had not fully answered questions asked and was withholding information.

    
    

15. It is also evident that the Tampa Police Department's primary concern at the inception of this investigation was to determine if there was any involvement by Respondent in Jernigan's criminal affairs. The investigation laid these fears to rest, but Respondent readily admitted to "partying" which consisted of bar hopping and heavy drinking with one who shortly thereafter was revealed as a very unsavory character.

    
    

16. While clever interrogation over an extended period led Respondent into making conflicting statements under oath and may have provided the Tampa Police Department adequate grounds for dismissing Respondent from the Tampa Police force, under the circumstances this is not clear and convincing evidence that Respondent is not of good moral character.

17. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that John G. Macko does not have good moral character. It is

RECOMMENDED that all charges against John G. Macko be dismissed. ENTERED this 26th day of May, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1988.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Legal Affairs Post Office Box 1498 Tallahassee, Florida 32302

John G. Macko 5115 Alpha Court

Lot 19

Tampa, Florida 33609

Robert R. Dempsey Executive Director Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell Director

Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-000324

Orders for Case No: 88-000324