exhibits into evidence. Respondent testified in his own behalf and called two (2) witnesses. Additionally, Respondent introduced one (1) exhibit into evidence.
After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on December 20, 1993 and December 17, 1993, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.
On December 19, 1986, Thomas Barrow was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission, Certificate Number 23-86-999-03. He was initially employed by the Santa Rosa County Sheriff's Department in April, 1986.
Barrow has served as a deputy sheriff with three sheriffs. His duties have included at least five years as an investigator for the Santa Rosa County Sheriff's Department. He is currently serving as a corporal with Sheriff Jerry Brown.
As a corporal under Sheriff Brown, Barrow is a line supervisor working in the field with the road deputies. Barrow assists the road deputies when questions arise and carries out the orders of his superiors.
During Barrow's tenure with the Santa Rosa County Sheriff's Department, his performance evaluations can generally be characterized as above satisfactory or outstanding. Barrow's last evaluation, by Sheriff Brown, rates his performance as satisfactory (the highest rating available); however, both Sheriff Brown and Barrow's immediate supervisor, Lieutenant Joel Lowery, consider him to be a "very effective," and "good" supervisor.
Barrow has been disciplined on three occasions as a deputy sheriff. On two occasions, the discipline was voluntarily withdrawn or overturned by the Santa Rosa County Civil Service Board. The remaining disciplinary action was a verbal reprimand for working overtime without authorization.
In March, 1991, Barrow was discharged from his position as deputy sheriff by Sheriff E.M. Coffman for conduct unbecoming an employee and mishandling of evidence. Barrow successfully appealed his discharge through the Santa Rosa County Civil Service Board which found his discharge to be without just cause. Barrow was ordered reinstated to his position as deputy sheriff and granted full backpay and restoration of benefits.
Corporal Barrow was not formally returned to his position as deputy sheriff until September, 1992. During the period from March, 1991, through September, 1992, Barrow did not visit the Sheriff's Department, have any current knowledge of the activities of the Department's narcotics division, its
personnel operating as undercover agents or any narcotics investigations being conducted by the division. It is during the period of Barrow's termination that the allegations of misconduct outlined in the Administrative Complaint arise.
Prior to Barrow's termination in March, 1991, he was working in the Sheriff's Department criminal investigations division. Through that duty, Barrow met an individual named Jimmy Joe McCurdy. McCurdy, a longtime resident of Santa Rosa County, was confined in the County jail as a result of a violation of probation for a federal arson conviction. Barrow met McCurdy when he assisted a federal agent in obtaining McCurdy's release on bond as part of a plea agreement.
During the summer and fall of 1991, McCurdy would occasionally contact Barrow by telephone about problems he was having. On one occasion, McCurdy asked Barrow to help him correct a problem with a suspended driver's license. On another occasion, McCurdy asked Barrow to locate a vehicle which had been confiscated by the Sheriff's Department. Barrow provided McCurdy with information about how to correct the problem or persons to contact for assistance.
McCurdy had somewhat attached himself to Barrow when he needed advice. Barrow did not attach any real significance to the telephone contacts made by McCurdy. They were infrequent, once every four or five weeks, and he had other major concerns at the time having lost his job. Barrow did not socialize with McCurdy, have any business dealings with McCurdy or loan him any money.
Barrow was simply trying to pacify McCurdy, who was somewhat paranoid, that "everybody wasn't out to get him." During almost every conversation, Barrow advised McCurdy if he was not doing anything wrong, he did not have to worry. McCurdy always assured Barrow that he was not doing anything wrong. Barrow believed McCurdy because he could not imagine McCurdy or anyone stupid enough to commit criminal acts while on probation, awaiting sentencing for a federal crime, and while helping the federal government on the same matter.
In early October 1991, Jimmy Joe McCurdy telephoned Barrow at his home. McCurdy wanted to know if Barrow had found out anything about his confiscated car. Barrow advised him he had not and that McCurdy should contact FDLE about the car.
During the course of the conversation, McCurdy told Barrow he felt the County was trying to set him up and that cars were driving by his house. Barrow advised McCurdy that he needed to stay out of trouble. Barrow further advised McCurdy if he was not doing anything wrong, nobody could do anything to him, but if he was doing anything wrong, they would catch him.
Finally, during the conversation, McCurdy asked Barrow about a car which had driven by his house and described it to Barrow. Barrow told McCurdy that it could possibly be one which belonged to the Sheriff's Department.
At the time of the October, 1991, conversation between McCurdy and Barrow, Barrow did not know the Sheriff's Department was conducting an undercover narcotics investigation of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession and sale of illegal drugs. On the contrary, McCurdy assured Barrow on several occasions he was "staying straight." Had Barrow known of the narcotics investigation, he would not have disclosed to McCurdy the car was possibly an undercover vehicle used by the Sheriff's Department.
On the evening of November 8, 1993, Jimmy Joe McCurdy was arrested for the possession of marijuana as a result of a narcotics investigation being conducted by the Sheriff's Department and FDLE. The undercover narcotics investigation had begun in early October, 1991, with Jimmy Joe McCurdy the subject of the investigation. The arrest of McCurdy on November 8, 1991, concluded the investigation.
Thomas Barrow was not aware of the investigation of McCurdy by the Sheriff's Department at any time prior to the end of the investigation. During the course of the investigation, the Sheriff's Department became aware of Barrow's comments to McCurdy relating to the possibility of the car being an undercover vehicle. The Sheriff's Department did not contact Barrow to seek his cooperation in not revealing any additional information to McCurdy which might be damaging to the investigation.
On the evening of November 8, 1991, after McCurdy was arrested by the Sheriff's Department and the FDLE, McCurdy telephoned Thomas Barrow at his home. The telephone call was made at the request of FDLE. McCurdy was asked to contact Barrow and describe several cars to him. McCurdy agreed to cooperate by making the telephone call.
At approximately 10:00 p.m., on November 8, 1991, McCurdy telephoned Barrow. Barrow was already asleep, but answered the telephone. When McCurdy initially brought up the subject of a car, Barrow mistakenly believed that he was speaking about McCurdy's confiscated car and told him he had not been able to find out any additional information about the car. When McCurdy told Barrow he was referring to the possible undercover car from the Sheriff's Department, Barrow indicated it was the type of car driven by Leonard Thomas. McCurdy then told Barrow a man came by earlier in the evening "driving a silver or grey Camaro." Barrow told McCurdy the Sheriff's Department has undercover cars of that kind.
During the conversation, McCurdy indicated the driver of the car was "asking a lot of questions" and was concerned whether the County was "out to get him." Barrow advised McCurdy: "No, now just be careful, you know, don't be messing with nothing, of course, you told me you hadn't been messing with anything you told me last time so." On two other occasions in the conversation, Barrow advised McCurdy to "keep it straight" and "stay outta anything."
During the November 8, 1991, conversation, Barrow did not know the Sheriff's Department was conducting a narcotics investigations of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession or sale of illegal drugs. Had Barrow believed McCurdy was engaging in the sale of illegal drugs, he would have advised the Sheriff's Department or Charles Layman of FDLE concerning McCurdy's conduct.
Corporal Barrow's disclosures of information to Jimmy Joe McCurdy relating to the possibility of vehicles and persons working undercover for the Sheriff's Department were unthinking, incautious and in poor judgment for a law enforcement officer. Barrow acknowledges the errors. The disclosures were not made by Barrow with any intent to obstruct an ongoing narcotics investigation or assist McCurdy in avoiding detection during the investigation. Barrow's family and friends are all involved in law enforcement. Barrow would never jeopardize a law enforcement officer by purposely revealing confidential information.
Since the McCurdy incident, Barrow has returned to work with the Santa Rosa County Sheriff's Department. The McCurdy incident has been disclosed to Sheriff James Brown and Barrow's supervisor, Lieutenant Joel Lowery. While these individuals do not consider Barrow's conduct in the matter proper, it has not affected Barrow's performance as a law enforcement officer. Barrow is considered to be a very effective law enforcement officer who exercises good judgment in the field.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.
Thomas Barrow is charged with violating Sections 943.1395(5) and (6), Florida Statutes, by virtue of his failure to maintain the qualifications established in Section 943.13(7), Florida Statutes. The latter section requires a law enforcement officer to have "good moral character." The lack of "good moral character" alleged by Petitioner stems from its allegation that Barrow did "willfully and knowingly disclose to the subject involved in a narcotics investigation that certain vehicles were used by the Santa Rosa County Sheriff's Department Narcotics Unit and named the Santa Rosa County Sheriff's Department Narcotics Unit and named the deputy who usually drove one of the vehicles with the intent to obstruct the narcotics investigation and assist the subject of the investigation.
The Criminal Justice Standards and Training Commission has essentially codified in Rule 11B
law on the subject of what constitutes a lack of "good moral character." The rule provides 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.
Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102.1105 (Fla. 1st DCA 1977). Florida Board of Bar Examiners Re: G.W.L, 364 So.2d 454, 458 (Fla.
1978).
In those cases where revocation or suspension of a law enforcement officer's certification is sought based on his alleged failure to maintain "good moral character", such failure must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 922 (Fla. 3d DCA 1988).
The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So.2d 79 77, 800 (Fla. 4th DCA 1983).
Regardless of the disciplinary action taken, such action may be based only upon the violations specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987) and Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984). Each and every element of the charge must be established. MacMillian v. Nassau County School Board, So.2d , 18 FLW D2603 (Fla. 1st DCA Opinion rendered December 9, 1993.
An examination of the record in the instant case establishes Petitioner has failed to meet its burden of proof in several significant respects. It is apparent Barrow advised McCurdy that certain vehicles described by him were possibly undercover vehicles used by the Santa Rosa County Sheriff's Department, and named an individual who usually drove one of the vehicles. It is, however, equally apparent Barrow had no knowledge of the Sheriff Department's narcotics investigation of McCurdy nor McCurdy's involvement in alleged criminal conduct.
Clearly then, Barrow's disclosures to McCurdy, no matter how unthinking or ill
and assist the subject of the investigation." The "intent" to obstruct the Sheriff Department's narcotics investigation of Jimmy Joe McCurdy is a crucial factual element of the Petitioner's administrative complaint which it is required to prove. It has failed to meet its burden of proof on this crucial factual issue. See, Criminal Justice Standards and Training Commission v.
Schlechty, CJSTC Case No. L-2351, DOAH Case No. 89-6814 (Adopting DOAH Recommended Order in toto).
Even assuming that the allegations of the complaint can be ignored, Petitioner has not demonstrated that Respondent has not maintained good moral character. As previously stated, Barrow's disclosures can best be described as unthinking, incautious or as he conceded at hearing, stupid. The record evidence does not establish any intent on his part to obstruct a narcotics investigation of McCurdy or do any harm to any officer or person. Barrow had no personal or business relationship with McCurdy. He had no motive to assist McCurdy or protect him from any criminal investigation. On the contrary, it appears Barrow repeatedly warned McCurdy to "keep straight" and "stay outta anything." Such warnings are good sound advice and do not demonstrate an intent to obstruct a criminal investigation or assist McCurdy in avoiding detection by undercover investigators. See, Criminal Justice Standards and Training Commission v. Schlechty, supra. In short, there is a vast difference between stupid behavior and the lack of moral character. Schlechty, supra. Unthinking, incautious acts do not violate Chapter 943, Florida Statutes. Bad moral character does violate Chapter 943, Florida Statutes. In this case, Respondent's acts do not amount to bad moral character or the lack thereof.
Additionally, an examination of the case law reveals three broad principles relating to the determination of whether an individual is of good moral character. See, Bachynsky v. State, Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985); McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Florida Board of Bar Examiners, Re: G.W.L., 364 So.2d 454 (Fla. 1978); Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). First, isolated acts of indiscretion do not establish a lack of good moral character. Secondly, the conduct of the individual must be such as to raise substantial doubts about the person's honesty, fairness and respect for laws. Finally, there must be a rational relationship between the conduct and the person's ability to perform in his chosen profession.
In this case, Petitioner has accused Thomas Barrow of disclosing confidential information to Jimmy Joe McCurdy in order to assist him in avoiding arrest. Petitioner cannot contend the conduct was motived by personal gain or criminal corruption. Instead, the conduct can only be attributed to a serious lapse in judgment on the part of Barrow.
Certainly the conduct, if committed, cannot be condoned. However, such an isolated incident falls short of establishing Barrow as lacking good moral character. This single incident stands in sharp contrast to Barrow's reputation as a good, reliable officer who exercises sound judgment while working in the field. Petitioner has failed to demonstrate that this isolated incident raises substantial doubts regarding Barrow's honesty, fairness and respect for laws. Petitioner has also failed to demonstrate this incident has impeded Barrow's ability to perform in his chosen profession. In fact, the record evidence demonstrates the opposite.
While there may be instances where a lapse of judgment or unthinking conduct can be equated with a lack of good moral character, there is insufficient factual predicate to equate Barrow's conduct in this case to a lack of good moral character within the meaning of Section 943.13(7), Florida Statutes. Thus, it must be concluded that no violation of Section 943.13(7), Florida Statutes has occurred, and the Administrative Complaint should be dismissed.
