STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4539

)

RICHARD C. LOCKMAN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 2, 1990, in Orlando, Florida.

APPEARANCES

For Petitioner: Elsa Lopez Whitehurst, Esquire

Office of General Counsel

Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

For Respondent: Thomas J. Pilacek, Esquire

Springs Offices

2101 W. State Road 434

Suite 105

Longwood, Florida 32774 STATEMENT OF THE ISSUES

An administrative complaint dated June 9, 1989, by the Criminal Justice Standards and Training Commission alleges that Respondent unlawfully intercepted a wire or oral communication in violation of Section 943.1395(5) and (6), Florida Statutes and Rule 11B-27.0011(4)(a), Florida Administrative Code, and that thereby he failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, requiring that a law enforcement officer in the State of Florida have good moral character.

Respondent disputes the allegation; he admits that he intercepted an oral communication but claims that such was lawful under a law enforcement exemption in Section 934.03, Florida Statutes.

If it is determined that Respondent's interception was unlawful, an appropriate discipline of his certification must be recommended.

PRELIMINARY STATEMENT

In response to the administrative complaint, Respondent made a timely request for formal hearing.

For good cause, hearings scheduled for November 29, 1989, and January 24, 1990, were continued by order of Hearing Officer, Daniel M. Kilbride.

At the commencement of hearing on March 2, 1990, Petitioner requested and was granted leave to amend its complaint to allege that the intercept occurred between March and June, 1987. In his January 5, 1990, written opposition to continuance of the hearing, Respondent admitted that the intercept occurred in March 1987.

Petitioner's request to further amend the complaint to allege additional wrongdoing by use of the interception was denied after objection by Respondent.

Petitioner presented the testimony of five witnesses: Bill Reynolds, Jeff Villella, John Viaggio, William Sullivan III, and John Luff. Two exhibits, Petitioner's exhibits #1 and 2, were received in evidence.

Respondent testified on his own behalf and presented the additional testimony of Darrell Mark Harper and Elsworth S. Clarke. Respondent's exhibits #1, 2, 3, 6 and 7 were admitted in evidence. Exhibits #4 and 5 were withdrawn.

After the hearing, a transcript was prepared and filed, and both parties submitted proposed recommended orders. Specific rulings on the proposed findings of fact are found in the attached appendix.

FINDINGS OF FACT

1. Respondent, Richard C. Lockman, Jr., is, and at all times relevant to this proceeding, has been a certified law enforcement officer, having been issued certificate number 02- 15677 by the Criminal Justice Standards and Training Commission.

   
   

2. Richard Lockman was employed by the Town of Windermere Police Department from March 18, 1980 through May 22, 1987. During the relevant periods of 1986 and 1987, his rank was sergeant. His immediate supervisor was the Windermere police chief, Jeffrey C. Villella.

   
   

3. From summer 1986 until April 1987, Chief Villella was building a personal residence and was absent from the police department for several days each week, using accrued leave time.

   
   

   In the chief's absence, being next in rank, Sgt. Lockman was generally in charge of the daily affairs of the department.

   
   

4. Sgt. Lockman began hearing and became aware of irregularities in the chief's administrative practices. A town council member, Pete Wages, approached Sgt. Lockman and asked about Chief Villella's use of a police vehicle for personal business, and later asked about discrepancies in the chief's time sheets. On another occasion, Councilman Wages asked him about the chief's operation of a private security guard business while in his police department office. Each time Sgt. Lockman provided information that tended to support the councilman's suspicions.

5. From other sources, Lockman heard stories about the possibility that the son of the contractor who was building Chief Villella's house was involved in drugs. Lockman was concerned that the chief did not aggressively pursue drug investigations, but rather was more interested in burglaries in the Town of Windermere. Someone reported that tangible evidence was not being properly handled at the police department.

   
   

6. John P. Luff was part-time city manager for the Town of Windermere from January through June 1987. He and Forrest Danson, a council member who was designated "police commissioner", were responsible for reviewing the activities of the police department. John Luff was aware of friction between Chief Villella and Sgt. Lockman but ascribed it to a personality conflict. He considered both men to be honest.

   
   

7. After the allegations came to his attention, John Luff discussed them with Chief Villella and the chief denied them. When Luff reviewed the police time sheets he had no basis to question them. Luff also believed that Villella's use of his vehicle was proper.

   
   

   At some point Villella told him that Wages and Lockman were out to get the chief's job.

   
   

8. During the controversy, one day in early 1987, Sgt. Lockman was arriving for duty when Chief Villella apprehended him from the vicinity of Councilman Wages' office. The chief ordered him to his office in what Lockman considered was an uncharacteristically agitated manner.

   
   

   Lockman was concerned about his job as he knew that he had been furnishing information to Councilman Wages. Lockman also felt that in his agitation, Chief Villella might threaten him or insist that he stop investigating the chief's activities. Without Chief Villella's permission, and using a small concealed tape recorder, Lockman taped a portion of their conversation in the chief's office that day.

   
   

9. The session never produced the anticipated threats nor any "smoking gun". Rather Chief Villella was upset that Sgt. Lockman had failed to inform him of an important meeting, saying "Once again you have discredited me and this department." Sgt. Lockman found the notice of the meeting under a pile of papers on the chief's desk, and the meeting ended.

   
   

10. Sgt. Lockman had taped a counseling session on another occasion, but with the chief's permission. The above incident is the first and only time he operated his microrecorder surreptitiously in a meeting with the chief.

    
    

11. On or about May 1, 1987, Sgt. Lockman was summoned again to Chief Villella's office and was stripped of his authority and his vehicle. Lockman surmised this was the result

    of the chief's learning the full details of his disclosures to Councilman Wages.

    
    

12. The next day, Lockman met with John Luff and with Councilman Danson at town hall. He was upset at having been demoted. He played the tape for the two men, saying that he wanted to show them what he had to do to protect himself.

    He did not state that he had been conducting a criminal investigation, but he assured Councilman Danson that the tape was legal because he (Lockman) had been a party to the taped conversation.

    Lockman asked that a full independent investigation be done of the police department, but failed to provide specific details to John Luff's satisfaction. Lockman denied that he was out to "get" Jeff Villella.

    
    

13. No independent investigation was conducted. Against the recommendation of the police complaint review board constituted under the policeman's bill of rights, the town council terminated Sgt. Lockman the end of May, 1987.

    
    

14. After the termination, Jeff Villella found out about the taped conversation from Forrest Danson and John Luff. He was able to identify the occasion of the meeting from the quoted phrase, "Once again you have discredited me and the department".

    
    

    Upon advice, Villella reported the incident to the Orange County Sheriff's department and to the Florida Department of Law Enforcement.

    
    

15. Criminal charges were brought against Richard Lockman, but were dismissed in a pre-trial intervention procedure.

    
    

16. Richard Lockman sued the town and various individuals in federal court. The jury found that he had been wrongfully discharged as a "whistle blower", and awarded damages and reinstatement pursuant to Section 112.3187(9),

    F.S. The case is on appeal.

    
    

17. According to one witness, the upheaval surrounding Windermere's police department was typical small town politics. There was no evidence of actual criminal wrongdoing by Chief Villella, although there was some evidence of casual or sloppy administrative practices. Richard Lockman exercised poor professional judgement by allowing himself to become part of the factionalism and by not reporting his concerns to an outside authority such as the Florida Department of Law Enforcement. He undertook his own private investigation.

    
    

    The circumstances surrounding Richard Lockman's intercept of Chief Villella's conversation reflect both fear for his job and zeal for his investigation. Those circumstances do not clearly establish the violation alleged in the administrative complaint.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding pursuant to Section 120.57(1), F.S.

    
    

19. Petitioner has the burden of proving by clear and convincing evidence that Respondent committed the violation with which he is charged. Ferris v. Turlington, 510 So2d 292 (Fla. 1987).

20. Section 943.13, F.S. establishes the minimum qualifications for law enforcement officers in the State of Florida, including the requirement at subsection (7) of "good moral character".

    
    

    Section 943.1395(5) and (6), F.S. provide in pertinent part:

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) or who intentionally executes a false affidavit established in s. 943.13(8), S. 943.133(2), or S. 943.139(2).

    2. 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.

       
       

21. The Criminal Justice Standards Training Commission has adopted a rule governing its application of the term, "moral character". Rule 11B-27-0011,

    1. provides, in pertinent part:

       
       

       11B-27-0011 Moral Character

       (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 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

    (c) The perpetration of 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.

    
    

22. The willful interception of an oral communication by the use of an electronic or mechanical devise is a felony, as provided in section 934.03(1), F.S.

    
    

    However, it is lawful for a law enforcement officer to intercept an oral communication when he is a party to the communication and the purpose of the interception is to obtain evidence of a criminal act. Subsection 934.03(2)(c), F.S.

    
    

23. Petitioners failed to meet its burden of proving that Respondent acted unlawfully by recording his meeting with Chief Villella. Respondent suspected the chief of wrongdoing and endeavored to prove his suspicions. That he ultimately failed does not establish his own wrongdoing, nor does it cause "substantial doubts concerning [his] honesty, fairness, or respect for the rights of others or for the laws of the state and nation . .

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the complaint against Richard C. Lockman, Jr.

DONE and ENTERED this 31st day of May, 1990, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4539

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner

1. Adopted in paragraph #1.

2. Adopted in paragraph #2.

3. Adopted in substance in paragraph #8 and 4.

1. Adopted in paragraph #4.

2. Adopted in paragraph #8.

Respondent

1. Adopted in paragraph #1.

2. Adopted in paragraphs #2 and 3.

3. Adopted in substance in paragraph #3.

4. Adopted in paragraph #4. and 5.

1. Rejected as irrelevant.

2. and 8. Adopted in part in paragraph #8. The record does not establish that and Villella had just met with the council member.

1. Adopted in paragraph #12.

2. Adopted in paragraph #13.

3. Adopted in paragraph #16.

4. Rejected as irrelevant and unsupported by the record in this proceeding.

5. Adopted in paragraph #15.

6. Adopted in substance in paragraph #8.

7. Adopted in paragraph #10.

8. through 19. Rejected as unnecessary.

COPIES FURNISHED:

Elsa Lopez Whitehurst, Esquire Office of General Counsel

Florida Department of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

Thomas J. Pilacek, Esq. Springs Offices

2101 W. State Road 434

Suite 105

Longwood, FL 32774

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

Jeffrey Long, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, FL 32302

Docket for Case No: 89-004539

Orders for Case No: 89-004539