STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-2771

)

ALICE D. WILLIAMS, )

f/k/a ALICE D. BIGGINS, )

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 10, 1989, and on February 20, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Richard E. Lober, Esquire

Law Offices of Slesnick & Lober 10680 N.W. 25th Street

Suite 202

Miami, Florida 33172 STATEMENT OF THE ISSUES

Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a correctional officer in the State of Florida to have good moral character.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint on March 17, 1988, seeking to revoke the correctional officer certification that had been previously issued to Respondent, Alice D. Williams, who was formerly known as Alice D. Biggins. The Administrative Complaint alleges that the Respondent had failed to maintain the qualification of good moral character as evidenced by her falsification of her attendance and leave reports with the intent to mislead her

supervisors. By her Election of Rights form, Respondent denied that she failed to maintain good moral character and timely requested a formal hearing of the Administrative Complaint.

The first day of the formal hearing was held on October 10, 1989, in Miami, Florida. Notice of Hearing was duly furnished to James Casey, Esquire, the attorney for the Dade County Police Benevolent Association and the attorney who filed the request for hearing on behalf of Respondent. After the request for hearing was filed by Mr. Casey's office, it was determined that Respondent was not entitled to representation by Mr. Casey's office. Mr. Casey thereafter referred the case to Richard E. Lober, who, due to a breakdown in communications with Respondent, did not file a notice of appearance. Due to no fault of her own, neither Respondent nor Mr. Lober received the Notice of Hearing setting the case for hearing on October 10, 1989. Mr. Casey's office was contacted when no appearance was made on behalf of Respondent on October 10. It was determined that Mr. Casey was not available and that Mr. Lober was out of the State of Florida. Because Notice of Hearing had been duly served upon Respondent's attorney of record and because Petitioner had secured the attendance of several witnesses, Petitioner was allowed to proceed with the presentation of its case. Respondent thereafter filed a motion to reopen the hearing. This motion was not opposed by Petitioner, and the parties stipulated to the terms under which the matter would be reopened. Their stipulation, following a hearing by telephone conference call, was accepted by the undersigned and the hearing was reconvened on February 20, 1990, in Miami, Florida.

On October 10, 1989, Petitioner presented the testimony of three witnesses and introduced one exhibit. Petitioner submitted an additional exhibit as a late-filed exhibit. These two exhibits submitted by Petitioner were accepted into evidence. There was no appearance by Respondent on October 10. On February 20, 1990, Petitioner called no other witnesses, but following the close of the hearing submitted two additional late-filed exhibits and three depositions. These post-hearing submittals were accepted into evidence pursuant to the stipulation of the parties. Respondent testified on her own behalf, called three additional witnesses, and offered four documentary exhibits which were accepted into evidence. Respondent had an additional exhibit marked for identification, but withdrew that exhibit during argument on its admissibility.

A transcript of the hearing has been filed. The parties were given 10 days following the submission of late- filed exhibits within which to file post- hearing submittals. Specific rulings on all timely filed proposed findings of fact are in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The State of Florida, acting through Petitioner, certified Respondent as a correctional officer and, on February 17, 1988, issued to her Certificate number 03-87-502-08.

   
   

2. On September 21, 1987, Respondent began employment with the Florida Department of Corrections as a correctional officer at Broward Correctional Institution (BCI). On May 16, 1988, Respondent's employment with BCI was terminated. Since Respondent was still in the probationary period with BCI, it was not necessary for BCI to provide an official reason for the termination of Respondent's employment. The unofficial reason for the termination was that Respondent had failed to report to work.

3. BCI routinely uses an attendance and leave report form covering two calendar weeks as the basis for the issuance of salary warrants and for the accruement of leave and other benefits associated with state employment. These Attendance and Leave forms have a space for the hours worked during each day of the two week period, a space for the number of hours of authorized leave taken for each scheduled work day of the two week period, a space for scheduled days off, and a place to insert the code number for the type of leave taken. Among the several types of leave available to an employee (assuming that the employee had accrued leave available) were "annual leave", "family sick leave", "sick leave", and "unauthorized leave without pay."

   
   

4. These leave forms are usually kept in the Lieutenants' complex in books according to shifts. Each correctional officer normally completes his or her form at the end of the pay period. It is not unusual for a correctional officer to sign and to postdate the leave form if the officer does not anticipate being at work on the last day of the pay period.

   
   

5. Thursday, April 14, 1988, was the end of a two week pay period. On April 14, 1988, Respondent received a telephone call from her husband and was told by her husband that their two year old child, who had a history of extended illnesses, was sick and would require hospitalization. Respondent informed her supervisor, Lieutenant Bernstein of her child's illness. At that time, Respondent did not know how much time she would miss because of the child's illness. Lieutenant Bernstein told Respondent to be sure to sign her Attendance and Leave Form before she left. The form Lieutenant Bernstein referred to was for the period that ended April 14, 1988. Respondent misunderstood his instructions and thought he meant that she should sign the form for the upcoming two week pay period. For the two week period beginning Friday, April 15, 1988, Respondent was scheduled to work an 8-hour shift at BCI on each of the following days April 15, 16, 17, 18, 21, 22, 23, 24, 25, and 28, and was scheduled to be off April 19, 20, 26, and 27. Respondent did not report for work at BCI at any time during this two week period.

   
   

6. On April 14, 1988, Respondent partially completed and signed an attendance and leave form covering the period April 15-28, 1988. She signed the form on April 14, 1988, but she wrote the date April 28, 1988, next to her signature. Her signature was directly underneath the following declaration:

   
   

   I HEREBY CERTIFY THAT I HAVE REVIEWED THIS REPORT AND THAT IT REPRESENTS A TRUE AND CORRECT RECORD OF THE REGULAR HOURS WORKED, AUTHORIZED OVERTIME AND AUTHORIZED LEAVE.

   
   

7. Respondent left the form she had signed April 14, 1988, and dated April 28, 1988, in the book in the Lieutenants' complex. After Respondent completed her full shift on April 14, 1988, she left work and she did not again have access to her work area or to the leave form.

   
   

8. Respondent partially completed the form before she left work on April

1. She filled out the portions of the form that identified the form as being her form for the period April 15-28, she marked the days she was scheduled to be off, and she marked on the form the notation "4/15 - 4/28 Baby in Hospital" as the reason for the requested leave.

   
   

   1. There were three areas of dispute between the parties relating to the completion of the leave form. First, Petitioner contends that Respondent wrote on the form the notation "4/15 - 4/28 Baby in Hospital" in the space reserved

      for the insertion of the reason for the administrative leave. Respondent denies making that insertion. This dispute is resolved by finding, as contended by Petitioner, that Respondent did make that insertion on the form. The testimony of Petitioner's handwriting expert, who positively identified the handwriting "4/15 - 4/28 Baby in Hospital" as being the handwriting of Petitioner is found to be more credible than the denial by Respondent that she did not make that insertion. Consequently, the testimony of Petitioner's expert is accepted and the testimony of Respondent, on this matter, is rejected. Next, Respondent disputes Petitioner's contention that she inserted on the leave form the request for either family sick leave or sick leave for each of her scheduled work days during the two week period. Finally, Respondent disputes Petitioner's contention that she inserted on the form the number of hours of leave requested for each scheduled work day. These last two areas of dispute are resolved by finding that someone other than Respondent completed these portions of the form. Petitioner's handwriting expert did not refute Respondent's denial that she completed these portions of the form. Additionally, Respondent knew at the time that she signed the leave form on April 14, 1988, and dated it April 28, 1988, that she had only six hours of sick leave available for her use and that she had

      40 hours of accrued annual leave. Respondent would have had no reason to fill out the forms so as to claim some 80 hours of sick leave when she knew that she had such a limited amount of sick leave. Upon termination, correctional officers are entitled to accrued annual leave, but not for accrued sick leave.

      
      

   2. Respondent's child was not hospitalized between April 15-18, but Respondent was home attending to her sick child on those days. Respondent spoke with Lieutenant Bernstein or Lieutenant Jackson, another supervisor, to keep them advised of her situation during these four days. April 19 and 20 were her regularly scheduled days off, so she made no effort to contact BCI.

      
      

   3. On April 20, 1988, Respondent was contacted by Metro Dade Corrections and Rehabilitation (MDC) about a job for which she had applied prior to her employment with BCI. Respondent was excited about this job opportunity because she had wanted to work for MDC for a long time. She reported to the MDC personnel office as instructed late on the afternoon of April 20, 1988. On April 21, Respondent began full-time employment with MDC and began orientation and training with MDC as a correctional officer. The reason for the short notice to Respondent was that there had been an unexpected vacancy in the MDC training class. Respondent's full-time employment with MDC continued until May 16, 1988.

      
      

   4. Respondent told MDC at some undetermined point in time that she had terminated her employment with BCI by the time she was hired by MDC on April 21. Respondent attempted to contact Lieutenant Bernstein on April 21 to advise him of her change in employment, but she was unable to reach him. The representation made by Respondent to MDC that she had in fact resigned her position at BCI by the time she was hired by MDC was false.

      
      

   5. On April 22, 1988, Respondent wrote a letter of resignation to BCI, had the letter notarized, and mailed the letter to BCI. BCI did not receive this letter and was not aware that Respondent was employed at MDC until an investigator with MDC contacted the BCI personnel office during the course of a routine background investigation of Respondent. On Saturday, April 23, Respondent attempted to return her uniform to BCI, but the booth officer told her that uniforms could only be returned to the personnel office between 8:00

      A.M. and 4:00 P.M., Monday through Friday.

   6. Following the close of the April 15-28, 1988, period, Lt. Jackson, another of Respondent's supervisors, reviewed the form that Respondent had left in the book in the Lieutenant's complex and affixed his initials to the form to indicate his approval of the requested leave. Lt. Jackson later changed the leave from authorized sick leave to unauthorized leave without pay after it was determined that Respondent had failed to submit a doctor's certificate following three days of sick leave as was required by BCI's personnel rules.

      
      

   7. Respondent did not receive compensation for her employment with BCI after she became employed by MDC.

      
      

   8. On April 28, 1990, Respondent talked by telephone with Joan McKinley, a personnel technician at BCI, and discussed with her overtime pay for a prior pay period. During the conversation, Respondent stated that she was out of town for two or three weeks. Respondent did not state the reasons she was out of town, and the record is not clear that Respondent made that statement to justify her absence from BCI. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Respondent assumed that her letter of resignation had been received.

      
      

   9. On or about May 9, 1989, Respondent talked by telephone with Paula Bussier, the personnel manager at BCI. Respondent told Ms. Bussier that she was looking forward to returning to work soon and that her child's health had improved. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received.

      
      

   10. Officials at BCI learned of Respondent's new job when a MDC background investigator appeared at BCI to check Respondent's work record there. On May 16, 1989, Respondent's employment was terminated by BCI and by MDC.

       
       

   11. On August 29, 1988, Respondent was rehired by MDC. Since that time her job performance evaluations have been satisfactory or better and she has earned a reputation for honesty and integrity.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. Section 943.13(7), Florida Statutes, requires that a correctional officer possess good moral character.

       
       

   14. It is Petitioner's burden to prove by clear and convincing evidence that Respondent has failed to maintain good moral character. Ferris v. Turlington, 510 So. 2d, 292 (Fla. 1987).

       
       

   15. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102, 1105, (Fla. 1st DCA 1977), the court discussed the meaning of moral character as follows:

       
       

       Moral character ... means not only the ability to distinguish between right and wrong, but the

       character to observe the difference; the observance of the rules of right conduct and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

   16. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458, (Fla. 1987), the court discussed the meaning of good moral character as follows:

       
       

       In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

       
       

   17. Rule 11B-27.0011(4), Florida Administrative Code, provides, in pertinent part, as follows:

       
       

       (4) 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

       good moral character, as required by Section 943.13(7), is defined as:

       
       

       (c) 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 or nation, irrespective of

       whether such act or conduct constitute a crime...

       
       

   18. Respondent showed poor judgment in postdating the attendance and leave form for April 15-28 and in the procedure she followed in resigning from BCI. This poor judgment is tempered somewhat by the evidence that the postdating of leave forms at BCI is not uncommon when the employee does not anticipate being at work on the final day of the pay period and by the short notice that Respondent was given of the MDC position.

       
       

   19. Respondent made a false representation to MDC that she had terminated her employment with BCI prior to beginning her employment with MDC, and she made deceptive and misleading statements to Ms. McKinley and to Ms. Bussier, the BCI personnel office employees.

       
       

   20. The evidence failed to establish, however, Petitioner's contention that Respondent falsified the attendance report, except to the extent that she postdated her signature on it, or that she engaged in a course of conduct designed to obtain improper compensation for dual employment from BCI and MDC.

       
       

   21. The poor judgment Respondent used in postdating the leave form and in the procedure she followed in resigning from BCI, together with the false and misleading statements made by Respondent to the personnel officers at MDC and at BCI raise doubts as to Respondent's veracity, and, consequently, as to her moral character. It is concluded, however, that this poor judgment and these false and misleading statements do not, considering the total circumstances of this case, rise to the level of a failure to maintain a good moral character. This conclusion is reached in part because the testimony regarding statements made by Respondent lacked specificity as to dates the conversations occurred (except for the conversation with Ms. McKinley) and also lacked specificity as to what

       Respondent said and the context in which it was said. This conclusion is also based, in part, on the Respondent's uncertainty as to her child's condition at the time she filled out the leave form, the practice at BCI of postdating leave forms, her excitement in getting a job she wanted, the short notice as to the job opportunity, and the demanding schedule she faced when she began training and orientation with MDC.

       
       

   22. In determining whether Respondent has failed to maintain good moral character, it is also appropriate to consider that since August 29, 1988, Respondent has performed her duties as a correctional officer in a satisfactory or better manner, and she has earned a favorable reputation for honesty and integrity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement,

Criminal Justice Standards Training Commission, enter a final order which

dismisses the Administrative Complaint filed against Respondent.

DONE AND ENTERED this 1st day of June, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2771

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact submitted by Petitioner in Paragraph 5 are rejected to the extent the findings conflict with the findings made in Paragraphs 6-9 of the Recommended Order.

2. The proposed findings of fact submitted by Petitioner in the first sentence of Paragraph 6 are rejected as being contrary to the findings made in Paragraph 9 of the Recommended Order.

3. All other proposed findings of fact submitted by Petitioner are adopted in material part.

The following rulings are made on the proposed findings of fact submitted by Respondent:

1. The proposed findings of fact submitted by Respondent in Paragraphs 13-

   15 are rejected as being subordinate to the findings made in Paragraphs 6-9 of the Recommended Order.

2. The proposed findings of fact submitted by Respondent in Paragraph 16 are rejected as being subordinate to the findings made in Paragraph 14 of the Recommended Order.

3. The proposed findings of fact submitted by Respondent in Paragraph 23 are rejected as being subordinate to the findings made in Paragraph 11-12 of the Recommended Order.

4. The proposed findings of fact submitted by Respondent in Paragraphs 24, 25, 29, and 33 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact submitted by Respondent in Paragraphs 37-

   45 are rejected as being subordinate to the findings made in Paragraph 19 of the Recommended Order.

6. All other proposed findings of fact submitted by Respondent are accepted in material part.

Copies furnished:

Joseph S. White, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202

Miami, Florida 33172

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards

Training Commssion Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 89-002771

Orders for Case No: 89-002771