STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6814

)

MARK R. SCHLECHTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 23, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Gene "Hal" Johnson, Esquire

300 East Brevard Street Post Office Box 11239 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether or not Respondent unlawfully and knowingly warned the subject of an ongoing narcotics investigation with the intent to obstruct the investigation and assist the subject of the investigation, and thereby failed to maintain the qualifications and good moral character required of a law enforcement officer.

PRELIMINARY STATEMENT AND BACKGROUND

By Administrative Complaint filed September 28, 1989, Petitioner, Criminal Justice Standards and Training Commission, alleged that Respondent, Mark R. Schlechty, on June 5, 1987, while employed as a police officer by the Tampa Police Department (TPD), unlawfully and knowingly warned the subject of an ongoing narcotics investigation that an investigation was being conducted with the intent to obstruct the narcotics investigation and assist the subject of the investigation in violation of Section 943.1395(5) and (6), Florida Statutes, and that Respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer have

good moral character. Petitioner proposes to impose sanctions, to wit, revocation of Respondent's law enforcement certificate for his alleged impropriety.

Respondent disputed the above allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On December 11, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing. By Notice of Hearing dated February 9, 1990, the matter was scheduled for hearing on March 23, 1990.

At the final hearing, Petitioner presented the testimony of John Landes, Richard Olewinski, Kenneth W. Orrill, Jr., and Stephen Hogue, all officers of the TPD. Respondent testified on his behalf and presented the testimony of Cherie Bouknecht and Joseph W. Clark, also officers of the TPD. Petitioner's exhibits 1-4 and Respondent's exhibit 1 was received in evidence.

Following the hearing, a transcript was provided and the parties filed proposed findings of fact and conclusions of law which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Respondent, Mark R. Schlechty, was certified as a law enforcement officer by Petitioner, Criminal Justice Standards and Training Commission, on October 5, 1984, having been issued certificate number 35-84-002-03.

   
   

2. Respondent was employed by the TPD for approximately four years. Respondent is presently employed as a reservations agent with Eastern Airlines, having resigned from the TPD following the culmination of an internal investigation by the TPD.

   
   

3. During the first half of 1987, Respondent was assigned to patrol the downtown Tampa area (Kilo Squad) working the 4:30 p.m. to 1:00 a.m. shift. It was customary for Respondent and his squad to eat their evening meal at the Hyatt Regency Hotel in downtown Tampa, since it was one of the few downtown area restaurants open to eat after 9:00 p.m.

   
   

4. As a result of dining at the Hyatt Regency Hotel, Respondent became friendly with several members of the hotel's restaurant staff, including waiters Mark Gotheer and Jeff Stuart.

   
   

5. Respondent did not fraternize with Gotheer and Stuart away from the restaurant, although they spoke about meeting to socialize on a number of occasions including going surfing together and staying a weekend at the Hyatt in Orlando to visit Disney's Theme Park.

   
   

6. Respondent, as were all members of the TPD, was required to be selective of their acquaintances. Respondent was familiar with TPD's rules and regulations that restrict an officer from associating with individuals known or suspected of engaging in illegal activities. During the spring of 1987, Respondent was unaware of any criminal activity occurring at the Hyatt or that the TPD's vice unit was conducting an active/ongoing drug investigation at the hotel.

7. During the spring of 1987, Respondent's squad leader, Corporal Richard Olewinski, advised Respondent and the members of his squad that some of Hyatt's employees were suspected of dealing in illegal narcotics. Olewinski advised Respondent to be careful with whom he associated because employees Stuart and Gotheer were rumored to be involved in illicit activity at the hotel. Olewinski did not advise Respondent that the information was confidential or that TPD's vice unit was conducting an active/ongoing investigation of such employees.

   
   

8. Likewise, Respondent did not consider the information received from Corporal Olewinski to be confidential, instead understanding Olewinski's advice to be a warning that other officers should be careful with whom they associate.

   
   

9. As a result of Respondent's association with Gotheer and Stuart, while dining at the Hyatt, Respondent decided to confront them about the rumor based on his concern of being associated with them if they were, in fact, involved in illegal activity. To that end, Respondent approached Stuart on the next occasion that he frequented the Hyatt and inquired of Stuart if he and Gotheer were "dealing in cocaine or doing anything illegal." Gotheer was not at work, however, Stuart denied that either was engaged in any illegal conduct. Respondent also cautioned Stuart that they (TPD) were "looking at this place." Respondent told Stuart that if they were dealing drugs they would get caught and he cautioned Stuart to pass the word on to Gotheer, that if they were involved in any illegal activity, he could not deal with them as they were "bad news". Respondent's concern was to protect himself and admitted that "he did not care how they -- what they did with their personal lives if they use illegal narcotics. But, ... if they were to bring it out in front of me or do it around me, I would take action upon them."

   
   

10. Detective Orrill was assigned to conduct an undercover investigation concerning allegations against Gotheer. Orrill met with a cashier at the Hyatt and obtained her assistance in conducting his investigation. During the interim, detective Orrill conducted a background investigation on Gotheer and planned to utilize the cashier to introduce him to Gotheer as her new boyfriend at an upcoming party at Gotheer's home. Within several weeks time, Orrill arranged for the cashier and himself to go to Gotheer's home for a party. On the day of the party, the cashier advised Orrill that she was unwilling to further assist in the investigation as Gotheer advised her of his awareness that he was being investigated by the TPD.

    
    

11. Approximately one year later, detective Orrill again had an opportunity to investigate Gotheer. This came about when a detective-trainee under detective Orrill's supervision arrested a subject on narcotics charges. The subject named Gotheer as his narcotics supplier.

    
    

12. With the subject's assistance, Gotheer was arrested for possession, in excess of 400 grams, of suspected cocaine. Gotheer agreed to provide information about Respondent's involvement in the 1987 investigation at the Hyatt. Gotheer advised Orrill that in 1987, he received a message from Respondent warning him of the original investigations.

    
    

13. As a result of that arrest, Gotheer agreed to assist in the Department's investigation of Respondent by wearing a concealed microphone during an arranged meeting with the Respondent. During that arranged meeting with Respondent on June 6, 1988, Respondent restated his words of caution to Stuart to tell Gotheer to "lay low" because they were looking at the hotel employees and that they were going to get caught if they "f around."

14. Respondent's intent, by sending the word to Gotheer and by advising Stuart to "lay low," was not based on any intent on his part to obstruct an investigation, but was rather to disassociate himself from them if they were engaged in illegal acts.

    
    

15. On June 14, 1988, Respondent gave a sworn statement to Sergeant Stephen Hogue and A. Stertzer of the TPD Internal Affairs Bureau. During that statement, Respondent initially denied informing Gotheer either directly or indirectly about an ongoing police investigation directed at Gotheer. Respondent's concern was job retention and to protect himself from scrutiny by either internal affairs or his fellow officers. Respondent subsequently corrected his misstatements in his initial conversation and statement with officers Hogue and Stertzer, of the Internal Affairs Bureau. (Petitioner's Composite Exhibit 4.)

    
    

16. Respondent's explanation for his conduct is consistent with his reputation as a police officer with the TPD. In his four years of service with the Department, Respondent has received several commendations and has a reputation of being a good and reliable officer who does not tolerate or condone the use or sale of illegal drugs. In this regard, Respondent was handpicked to serve on the Kilo Squad based on his tough stance on putting drug traffickers off the street. Nothing was introduced to indicate that Respondent was, in any manner, tolerant of drug users. Being a police officer or to be employed in law enforcement is a longtime career goal of Respondent, as his father served as a police officer and he admired his father for the work that he did as a law enforcement officer. In retrospect, Respondent admits that his conduct, in confronting employees Stuart and Gotheer about their drug involvement, may have been "immature and perhaps he did not look at the whole picture." Respondent has now learned a valuable lesson and is desirous of remaining eligible for employment as a law enforcement officer.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

19. The authority of the Petitioner is derived from Chapter 943, Florida Statutes.

    
    

20. Section 943.13(7), Florida Statutes, requires a law enforcement officer to have "good moral character" as determined by a background investigation under procedures established by the Commission. Likewise, Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action on Florida law enforcement officers. The rule states in relevant part:

    
    

    (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 and nation, irrespective of

    whether such act or conduct constitutes a crime.....

21. License revocation proceedings, such as this, are penal in nature. Petitioner is therefore required to prove its charges by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); and Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

22. Applying this standard, Respondent's conduct here does not evince a lack of moral character and Petitioner failed to produce clear and convincing evidence to establish that Respondent unlawfully and knowingly warned subjects of an ongoing narcotics investigation that they were being investigated with the intent to obstruct the investigation and assist the subjects of the investigation in avoiding arrests. Initially, the evidence revealed that Respondent received a rumor from a fellow officer that employees at the hotel which he frequented were being looked at for possible drug trafficking. As a means to confirm his knowledge as to the two employees activities with whom he associated, in an effort to protect his own reputation and shield himself from possible departmental repercussions (associating with individuals involved in illegal activity), Respondent confronted Stuart. Respondent's explanation and testimony is credible and is worthy of belief. While his conduct in hindsight may have been immature or it may have been more appropriate for him to have totally refrained from associating with those waiters until he could independently ascertain the reliability of the rumors, based on the entire record in this case, it is not concluded that that immaturity should rise to the level of justification for revocation of Respondent's law enforcement certification. It is therefore concluded that Respondent did not violate Section 943.13(7), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety.

DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 3rd day of July, 1990.

Copies furnished:

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

Gene "Hal" Johnson, Esquire

300 East Brevard Street Post Office Box 11239 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

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

James E. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-006814

Orders for Case No: 89-006814