STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) END TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2450

)

ROBERT S. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 28, 1989 in Palatka, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White

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

For Respondent: Robert S. Smith

2720 Edgemore

Palatka, Florida 32077 STATEMENT OF THE ISSUE

The Administrative Complaint alleges that the Respondent, a certified correctional officer, failed to maintain the qualifications set out in Section 943.13(7) F.S., requiring an officer to be of good moral character, and seeks, pursuant to Section 943.1395(5),(6) F.S., to discipline Respondent.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Phyllis Adkins, Jimmie Collins, Lenard Ball, and Paul Fuentez, and had four exhibits admitted in evidence.

Respondent presented the oral testimony of Robin Edwards, testified on his own behalf, and had no exhibits admitted.

A transcript was filed in due course and neither party filed post-hearing proposals within ten days of its filing. (See, TR-105) Petitioner's late-filed proposals, not objected to, have been considered. See, Appendix.

FINDINGS OF FACT

1. At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is

   26 years old.

   
   

2. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins.

   
   

3. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened.

   
   

4. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance.

   
   

5. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of

   some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room.

   
   

6. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation.

   
   

7. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs.

   
   

8. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987.

   
   

9. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators.

10. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger.

    
    

11. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred.

    
    

12. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

14. Section 943.13 F.S. establishes the minimum qualifications for law enforcement officers in Florida, including, at Subsection (7):

    
    

    Have good moral character as determined by a background investigation under procedures established by the Commission.

    
    

15. Section 943.1395(5) requires:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10).

    
    

16. However, Section 943.1395(6)(1988) establishes certain lesser penalties for application in appropriate cases, as follows:

    
    

    1. Upon a finding by the commission that a certified officer has not maintained good

       moral character, the definition of which has

       been adopted by rule and is established as a statewide standard, as required by s.

       943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the

          commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

          
          

17. Rule 11B-27.0011(4) F.A.C. provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:

    
    

    1. For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

          Section 117.03, 316.1935, 409.325, 552.22(3),

          (4), (5), (6), (7), (10), 784.011, 784.03,

          784.05(2), 790.01(1), 790.10, 790.17, 790.18,

          790.24, 790.27, 794.027, 796.06, 796.07,

          800.02, 800.03, 806.101, 806.13, 810.08,

          812.014(1)(d), 812.016, 812,081, 812.14,

          817.235, 817.39, 817.49, 817.563, 817.565,

          827.04(2), (3), 827.05, 827.06, 828.122,

          831.30, 831.31(1)(b) , 832.041, 832.05(2)

          (4), 837.012, 837.05, 837.06, 839.20, 843.02,

          843.06, 843.08, 843.13, 843.17, 847.011(1),

          (2), (4), 847.0125(2), 847.013(2), 847.06,

          847.07, 856.021, 870.01, 870.02, 876.17,

          876.18, 893.13(1)(a)3., (1)(d)3., (1)(g),

          (2)(a), (2)(b) , 914.22(2), 944.35(3), 944.35(7)(a), 944.37, F.S., or

       3. The perpetration by the officer of an act or conduct which causes substantial

          doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime, or

       4. The unlawful use of any of the controlled substances enumerated in Rule 11B- 27.00225.

    
    

18. The burden in license disciplinary proceedings is upon Petitioner agency. The burden is to prove each element of the charge by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. Although Respondent admitted that a year prior to being certified as a correctional officer, he had used drugs, he is not charged with any offense involving the use of illegal drugs here.

    
    

20. No specific felony statute was enunciated in the Administrative Complaint. In its post-hearing proposals, Petitioner argued that Section 893.13(1)(a)1 F.S. establishes sale or delivery of cocaine as a second degree felony and that Section 777.04(4)(c) F.S. makes an attempt to sell or deliver cocaine a third degree felony. In criminal prosecutions, the desire to commit an illicit act, absent the capacity to do so, means that intent has not been proven. The terms of Section 893.13(1)(a) F.S. have therefore not been met. Further, the undersigned is impressed with the testimony of Agent Collins that prosecution was not brought by FDLE against this Respondent because the evidence FDLE had obtained against Respondent would not support prosecution even for an "attempt." If a felony, listed misdemeanor, or "criminal offense" had been proved, that would be grounds to revoke Respondent's certificate whether he had been criminally prosecuted or not. Here, the evidence is insufficient to prove clearly and convincingly the only felony (attempt to sell or deliver cocaine) enunciated in the Administrative Complaint. Intent is also either enunciated or inherent in the misdemeanor charges listed in Subsection (b) of the rule, none of which were specifically named in the Administrative Complaint and none of which were argued by the Petitioner's post-hearing proposals.

    
    

21. Essentially, Petitioner has proved that Respondent, a correctional officer of barely a month, operated with immaturity, ignorance of certain correction standards he was affirmatively charged with knowing, and with a clear and knowing defiance of other correctional officer standards. Respondent possibly endangered himself and others, expended agency funds needlessly, tied up valuable agents' time, was insubordinate to valid requirements of his employment, and was ignorant of other employment obligations. However, Respondent's bravado, which dissipated to reasonable fear when he recognized he was in over his head without appropriate law enforcement training and authority, ought not to, in the circumstances of this first offense, result in a sanction as heavy as revocation of his certificate.

    
    

22. The circumstances here conform most closely to the definition of bad moral character described in Subparagraph (4)(c) of the rule (see supra.) Therefore, a more suitable and useful discipline would be a combination of the sanctions provided in Section 943.1395(6) F.S. In making this determination, and thus the following recommendation, the undersigned is mindful of the agency's need to weed out those persons who do not have the character to hold positions of trust and operate independently in the correctional facilities of this State. However, the undersigned has also ascribed considerable weight to

the age and inexperience of the Respondent and to the ability of the agency to reclaim suitable personnel through proper monitoring, education, and training.

RECOMMENDATION

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 bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met.

DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10-

13, 16, 19-21 are accepted.

PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole.

PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved.

Respondent's PFOF: None filed to date.

COPIES FURNISHED:

Joseph S. White

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

Robert S. Smith 2720 Edgemore

Palatka, Florida 32077

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jeffery Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-002450

Orders for Case No: 89-002450