STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4484

)

DOUGLAS E. SZCZEPANIK, )

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Delray Beach, Florida on October 17, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Rodney E. Gaddy, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For the Respondent: Charles A. Salerno, Esquire

P.O. Box 1349

Tallahassee, Florida 32302-1349 STATEMENT OF THE ISSUES

The issue for consideration in this case was whether the Respondent's certificate as a law enforcement officer should be disciplined because of the matters set forth in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

On July 13, 1990, Jeffrey W. Long, Director of the Florida Department of Law Enforcement's Division of Criminal Justice Standards and Training, filed an Administrative Complaint in this case in which he alleged that the Respondent unlawfully aided, abetted, counseled or procured one Thomas Whatley to make a false report concerning a motor vehicle accident, and, himself, made a false statement in an official proceeding in regard to a material matter, both in violation of Sections 943.1295 and 943.13, Florida Statutes, and Rule 11B- 27.0011, F.A.C. Respondent thereafter indicated his demand for a formal hearing on the allegations, and by letter dated July 18, 1991, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

After both parties responded to the Initial Order issued herein, the undersigned, by Notice of Hearing dated August 2, 1991, set the matter for hearing in Delray Beach on October 17, 1991, at which time the case was heard as scheduled.

At the hearing, Petitioner presented the testimony of Lt. Marc Woods, Officer Thomas A. Whatley, Officer Thomas J. Quinlan, Lt. Robert A. Musco, Detective David Eberhart, and Major Richard Lincoln, all of the Delray Beach Police Department, and introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf and introduced the testimony of Lorraine Szczepanik, his wife. Respondent also offered Respondent's Exhibit A for Identification but it was not admitted into evidence.

At the hearing, Petitioner moved to amend the Administrative Complaint in this case to reflect that Respondent was certified as a law enforcement officer rather than as a corrections officer. That motion was granted without objection by the Respondent. Respondent also voluntarily dismissed the charge relating to the making of a false statement in an official proceeding. No evidence was presented with regard to that charge.

A transcript of the proceeding was provided. Petitioner has submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Respondent submitted none.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Criminal Justice Standards and Training Commission, (Commission), was and is the state agency responsible for the certification of law enforcement officers in this state. The Respondent, Douglas E. Szczepanik, was and is certified in Florida as a law enforcement officer.

   
   

2. Late on the evening of August 22, 1988, Respondent was employed as a police officer with the Delray Beach, Florida, Police Department, (Department). While at the hospital with Officer Eberhart collecting a blood specimen from a third person for use in another police matter, he heard a police radio call relating to the hot pursuit of a felony suspect. He and Eberhart went to the scene of the expected apprehension and found that the suspect had been apprehended after a high speed chase by several police cars including one driven by Officer Thomas A. Whatley.

   
   

3. It was subsequently determined that the suspect had lost control of his vehicle, a stolen car, and had ended up abandoning it on the city's municipal golf course adjacent to West Atlantic Avenue. He then ran off on foot across the course with Officer Whatley in pursuit in his police cruiser. The suspect ran up a hill and down the other side. Whatley, surmising that the hill was no more than that, and that the other side of the hill was a down slope, drove up the hill after the suspect at a speed of approximately 45 to 50 mph. As he reached the crest, he found that he was on the lip of a sand trap and since he could not stop, his car became airborne, coming to rest some 25 - 30 feet further along, in the sand trap. Though it did not bear significant outward signs of damage, the vehicle was, in fact rendered inoperable as a result of the impact. Fortunately, the suspect was apprehended by other officers on the scene.

   
   

4. As a result of the serious nature of the suspect's alleged crimes, suspected murder of an officer and car theft, many Delray Beach officers were involved in the chase and were, therefore, on the scene at the time of the apprehension and Whatley's vehicular mishap, including his Lieutenant, Woods, and his patrol sergeant, then Sergeant Musco.

5. Lt. Woods directed Sgt. Musco to block traffic on Atlantic Avenue and another officer to get the damaged vehicles towed away. He directed Respondent, then at the scene, to write the traffic accident report relating to Whatley's car. There is some indication that initially Woods did not think a report was necessary, but he ultimately became convinced it was and gave the job to Respondent. Since both Respondent and Eberhart were traffic investigators, Eberhart indicated he would do it and Respondent acquiesced. Respondent and Eberhart both discussed the accident and both developed their own theory as to how it happened. Neither, however, bothered to question Whatley who remained at the scene for some time before being directed to resume patrol, using Respondent's cruiser. Even when that was being set up, Respondent did not question Whatley as to what had happened, speaking to him only to caution him not to lose his keys when he turned them over to him.

   
   

6. Based on their examination of the scene on Atlantic Avenue, and without even looking at Whatley's vehicle and where it ended up, Eberhart concluded that the accident occurred when the suspect lost control of his vehicle and ran into Whatley's forcing him to lose control and run up the side of and into the sand trap. Had Eberhart bothered to look at the vehicle, he would have seen no body damage consistent with collision. Eberhart was subsequently convinced by Respondent, who did look at Whatley's vehicle, that an alternative theory, indicating that the suspect lost control of his vehicle and prompted Whatley to lose control of his in an effort to avoid a collision, was what happened.

   
   

7. In any event, Respondent claims that later that evening, back at Police Headquarters, he saw Whatley attempting to write out his report. Whatley allegedly asked Respondent for help in writing it since he was relatively new to the force and this was his first accident. Respondent also claims that he merely told Whatley the format for the report and the type of information to put in it. He admits that, as an example of what to say, he told Whatley his theory of the accident. When Whatley indicated that was not how it happened, Respondent allegedly told him, then, to write in what did happen as he, Whatley, recalled it, and he denies suggesting that Whatley use his scenario if it was not correct.

   
   

8. Whatley, on the other hand, claims that while they were still at the scene of the accident he talked with Respondent and told him what had happened. Respondent supposedly walked around the wreck and then told Whatley to put in his supplement to the accident report that he had been taking evasive action. When Whatley told him that was not the way it happened, Respondent is alleged to have said that the people "upstairs" wanted police accident reports to reflect no fault on the part of the officers. Whatley claims that Sgt. Musco was present at the time but Musco does not profess to have heard that and Respondent categorically denies that Whatley told him at the scene how the accident occurred or that he went to the sand trap to look at the vehicle. In a statement made to Captain Schrader in November, 1988 as a part of the Internal Affairs investigation, Respondent again denied he spoke with Whatley at the accident scene. No evidence was presented by the Petitioner as to what benefit Respondent would gain or what detriment he would avoid by telling Whatley to falsify his supplement.

   
   

9. Musco claims that when he first saw Whatley, he appeared depressed about the incident and Musco told him to write it up as it had happened and not to worry about it because he, Musco, was not worried about the car. When Respondent, who Musco had assigned to write up the report, said he was going to show it had happened when Whatley attempted to avoid an accident, Musco told him

   to write the report honestly as he had been trained to do, and as Whatley had reported it. Musco did not follow up to see if the report or Whatley's supplement thereto was prepared properly. Since he had assigned the duty to a trained traffic/homicide investigator, (Respondent), he presumed it was done correctly. He knows of no policy to falsify reports of police accidents and in fact has had an accident himself, in which he was at fault, and which was written up accurately.

   
   

10. Respondent claims that after he spoke with Whatley at Police headquarters and told him to write the report honestly, he left and met Lt. Woods outside. He told Woods that Eberhart was going to write the accident report and that Whatley was going to write his supplement honestly. Woods reportedly responded that was no good because he had already told everyone it had happened because of Whatley's attempt to evade the suspect's car. Because of that, even though Woods did not give him any instructions to do so, Respondent claims he went back inside and told Whatley to write his supplement the way he remembered it.

    
    

11. Respondent claims that at no time did he ever tell Whatley to write a false report. He also claims that he never made the statement attributed to him regarding the people "upstairs." He would have nothing to gain or to lose by convincing Whatley to falsify his supplement.

    
    

12. After getting advice from Respondent and from Sgt.

    Musco, Officer Whatley, for some reason, wrote his supplement indicating he had the accident in an attempt to evade the suspect's out of control vehicle.

    Whatley cites two meetings with Respondent that evening, as does Respondent, but their stories of what transpired differs radically. Whatley claims that Respondent told him to make sure his supplement conformed to what was in Eberhart's report. He did, and when he gave it to Lt. Woods to read, Woods rejected it because it was false and Woods knew it to be false. Woods then told him to hold off on the supplement and about a week later, Whatley was told by Captain Cole to write another supplement which was accurate.

    
    

13. Respondent, on the other hand, claims he had little contact with Whatley at the scene of the mishap and denies any direct conversation with him about the accident. All he said, he claims, was, "it doesn't look too bad." Respondent asserts that at no time did Whatley tell him how the accident occurred. Later that evening, when, at the station he saw Whatley writing his report, Whatley asked him for advice as to how to construct and what to put into his supplemental report. Respondent claims he told Whatley to go back and tell the story as it happened. He admits to telling Whatley how he felt the accident occurred but when Whatley said that was not how it was, Respondent again told him to write it as it happened. This whole conversation took no more than a minute or a minute and a half. The only direction he gave Whatley was as to the format of the supplement, not the substance, other than that it be the truth.

    
    

14. When, a few minutes later, Respondent saw Woods and told him that Whatley was having trouble, Woods told Respondent how he felt the accident had occurred. At that time, Woods gave Respondent no directions, but Respondent went back into the station and again told Whatley to write up his supplement the way he, Whatley, recalled the accident happening. The following day, according to Respondent, Woods pulled him aside and told him he had just spoken to Major Lincoln who said the report was to be written as Respondent had originally said the accident had occurred, incorrectly. At no time did Respondent speak directly with Lincoln about the accident.

    CONCLUSIONS OF LAW

    
    

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

    
    

16. In its Administrative Complaint, the Commission seeks to discipline the Respondent's certification as a law enforcement officer alleging that he has failed to maintain the qualifications set out in Section 943.13(7), Florida Statutes, which requires a law enforcement officer to be of good moral character.

    
    

17. Here the Petitioner has the burden to establish the essential elements of its allegations against the Respondent by clear and convincing evidence of his misconduct. Ferris v. Turlington, 510 So.2d 212, (Fla. 1987).

    
    

18. Section 943.13 establishes the minimum qualifications for certification as a law enforcement officer in this state and provides, at subsection (7) that such an individual shall:

    
    

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

    
    

19. Section 943.1395, Florida Statutes, provide for revocation of the certification of any officer who is not in compliance with Sections 943.13 (1) - (10), or for lesser penalties to be imposed in appropriate cases.

    
    

20. For the purposes of the implementation of the above statutorily mandated action, Rule 11B-27.9911(4)(b), F.A.C., defines good moral character as:

    
    

    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 837.06(c), Florida Statutes:

    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.

    
    

    See also, Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1DCA 1977); Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978); and White

    v. Beary, 237 So.2d 263 (Fla.1DCA 1970) for more on the definition of good moral character.

    
    

21. There is now no doubt as to how the accident which forms the nexus for this case happened. It is also quite clear that Respondent engaged in discussions with Officer Whatley after that accident regarding how Whatley was to write up the supplement to the official accident report. What is not clear is what Respondent

    said to Whatley about that supplement and whether, for some reason, he advised Whatley to falsify it.

22. Petitioner was unable to show any motive for Respondent to have instructed Whatley to write other than a factual account of the incident. Notwithstanding almost every high ranking officer of the Delray Police Department testified in this case, no evidence was presented showing Respondent would realize any gain by suggesting an untruthful report to Whatley or that he would suffer any loss if the truth were known. What is more correct is that if Major Lincoln's alleged directive to Respondent were shown to be true, it would be evidence of a departmental cover-up.

    
    

23. Clearly, something is amiss within the Department regarding this incident, but the evidence of Respondent's misconduct is neither clear nor convincing as would be required to take disciplinary action against him.

    
    

    RECOMMENDATION

    
    

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

    
    

    RECOMMENDED that a Final Order be entered in this case by the Commission dismissing the Administrative Complaint filed against the Respondent.

    
    

    RECOMMENDED in Tallahassee, Florida this 17th day of January, 1992.

    
    

    
    

    ARNOLD H. POLLOCK

    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 17th day of January, 1992.

    
    

    APPENDIX TO RECOMMENDED ORDER

    
    

    The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, regarding the Proposed Findings of Fact submitted by the Petitioner in this proceeding.

    
    

    FOR THE PETITIONER:

    
    

    1. & 2. Accepted and incorporated herein.

3. - 5. Accepted and incorporated herein.

6. - 9. Accepted and incorporated herein.

1. - 14. Not phrased as Findings of Fact but more as

   restatements of testimony. However, the substance of the restatements is correctly stated and has been accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. - 18. Accepted and incorporated herein.

19. - 21. Accepted and incorporated herein.

22. & 23. Accepted and incorporated herein as an accurate recitation of Whatley's story.

24. & 25. Again, not phrased as Findings of Fact. Here,

however, the substance of Whatley's statement is rejected as not proven.

26. & 27. Rejected as not supported by evidence of record.

1. - 30. Accepted and incorporated herein.

   1. Accepted.

   2. Rejected as not supported by the evidence.

      Whatley and Respondent did meet at the station that evening, but the allegation that Respondent told Whatley to falsify his report is not supported by credible evidence.

   3. & 34. These are restatements of testimony but are accepted.

35. - 37. An accurate restatement of the testimony, but the

testimony is rejected as unsupported. Even Lincoln denied making the statement.

38. - 40. Accepted and incorporated herein.

41. - 43. Accepted and incorporated herein.

44. & 45. Accepted as accurate recitations of the testimony.

COPIES FURNISHED:

Rodney Gaddy, Esquire Michael R. Ramage, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Charles Salerno, Esquire

242 Plaza Office

P.O. Box 1349

Tallahassee, Florida 32302

James T. Moore Commissioner

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

Jeffrey Long Director CJSTC

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-004484

Orders for Case No: 91-004484