STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0253

)

RODNEY DOBLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 9, 1993, in Port St. Lucie, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dawn Whitehurst, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Richard D. Kibbey, Esquire

46 Camden Avenue Stuart, Florida 34994

STATEMENT OF THE ISSUES

1. Whether the Administrative Complaint should be dismissed on the grounds asserted by Respondent in his Motion to Dismiss/Motion to Remand for New Probable Cause Hearing, as amended?

   
   

2. If not, whether Respondent committed the violations alleged in Administrative Complaint?

   
   

3. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On December 18, 1991, the Criminal Justice Standards and Training Commission (hereinafter referred to as either the "Commission" or "Petitioner") issued an Administrative Complaint alleging that Respondent had engaged in the following conduct:

2. On or about July 28, 1989, Respondent, Rodney Dobler, did then unlawfully and knowingly make false statements to personnel of the Port St. Lucie Police Department concerning his involvement in a traffic accident, with the intent to mislead such personnel.

According to the Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B- 27.0011(4)(b)(c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character."

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On January 19, 1993, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.

On February 4, 1993, Respondent filed a Motion to Dismiss/Motion to Remand for New Probable Cause Hearing. In this motion, Respondent argued that he was entitled to the relief he was seeking "as a result of Petitioner's [inappropriate] conduct, together with . . . Petitioner's unexplainable and prejudicial delays."

On April 9, 1993, Respondent filed an Amended Motion to Dismiss/Motion to Remand for New Probable Cause Hearing. In this pleading, Respondent contended that the Administrative Complaint filed against him should be dismissed because his "initial termination [by his employing agency, the Port St. Lucie Police Department,] was in violation of the Policeman's Bill of Rights." Evidence on the issues raised in this pleading, as well as those raised in Respondent's previously filed Motion to Dismiss/Motion to Remand for New Probable Cause Hearing, was taken at the final hearing.

A total of 14 witnesses testified at the hearing. Ten of these witnesses, including Respondent, were either current or former employees of the Port St.

Lucie Police Department. The remaining witnesses were Dr. Bruce Platzek, a St. Lucie County neurologist, Christian Selph, Linda Hodges, a Commission employee, and Richard Kibbey, Respondent's attorney. In addition to the testimony of these 14 witnesses, a total of 14 exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 13) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. On May 13, 1993, and May 14, 1993, respectively, Respondent and the Commission timely filed proposed recommended orders.

The parties' proposed recommended orders contain what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Respondent is now, and has been since December 12, 1986, certified by the Commission as a law enforcement officer. He holds certificate number 12-86- 002-03.

   
   

2. Respondent is a police officer with the Port St. Lucie Police Department (hereinafter referred to as the "PSLPD"). He began his law enforcement career with the PSLPD in 1986.

   
   

3. At around 2:00 or 3:00 a.m. on July 28, 1989, Respondent and two of his PSLPD fellow officers, Officer Raymond Steele and Officer Richard Schichtel, were at a convenience store when they received a call over their police radios that there was a reported burglary in progress on Damask Street.

   
   

4. All three officers responded to the call in separate marked patrol cars.

   
   

5. Steele lead the way. Behind him was Respondent. Schichtel was in the rear.

   
   

6. As they were travelling eastbound on Port St. Lucie Boulevard, they approached from behind a slow-moving, orange Volkswagon Beetle occupied by two white males.

   
   

7. Steele safely passed the slow-moving vehicle.

   
   

8. As Respondent attempted to pass, the Volkswagon suddenly and unexpectedly turned left in the path of Respondent's patrol car, which was travelling at a high rate of speed. Respondent took evasive action. He avoided hitting the Volkswagon, but lost control of the patrol car. The patrol car spun around and skidded across the roadway. It finally came to rest after making contact with a concrete wall.

   
   

9. Respondent was shaken by the accident. He had hit his head against the cage inside the patrol car 1/ and had momentarily lost consciousness. He had no visible injuries, however, and, upon regaining consciousness, did not believe that his condition was such that he required medical attention.

   
   

10. Schichtel, who was following behind Respondent, stopped at the accident scene to render assistance. Steele, who was ahead of both of them, proceeded to the location of the reported burglary.

    
    

11. A few minutes later, while Schichtel was still present, Christian Selph, the driver of the Volkswagon that Respondent had attempted to pass, arrived on the scene. Selph walked up to Respondent and asked him if he was okay. Respondent responded that he was fine and that there was no need for Selph to remain. Selph thereupon left the accident scene and continued on his way. 2/

12. Respondent tried to move his patrol car from where it had come to a stop, but his efforts were unsuccessful.

    
    

13. Respondent radioed his supervisor, Sergeant Steve Claus, told Claus where he was, and requested Claus to meet him at that location. Complying with Respondent's request, Claus proceeded to the accident scene.

    
    

14. Schichtel left the accident scene to join Steele at the location of the reported burglary. Schichtel arrived at the location of the reported burglary as Steele was about to leave. He informed Steele that Respondent had been involved an accident. He then returned to the accident scene with Steele following behind him.

    
    

15. Respondent was not provided, nor did he request, medical attention following the accident.

    
    

16. Based upon what they had observed and what they had been told by Respondent, it did not appear to any of those who arrived on the scene following the accident that Respondent was in need of such attention.

    
    

17. The accident was investigated by Officer Charles Taylor of the PSLPD. Taylor collected physical evidence at the scene and interviewed Respondent, Schichtel and Steele before completing his accident report.

    
    

18. Taylor interviewed Respondent at approximately 5:00 a.m. the morning of the accident. In a clear and coherent manner, Respondent related to Taylor how the accident had occurred. He made mention of the Volkswagon, its two white male occupants and its role in the accident. He further stated that the Volkswagon did not stop at the scene of the accident. 3/

    
    

19. During his interview with Taylor, Schichtel likewise reported that the Volkswagon did not stop at the scene of the accident.

    
    

20. Within weeks of the accident, Respondent's and Schichtel's superiors received information that Selph, the driver of the Volkswagon, did stop of the scene of the accident after the accident had occurred.

    
    

21. A PSLPD internal affairs investigation into the matter was conducted.

    
    

22. After learning that the investigation had commenced, Respondent, who at the time was president of the union that served as the collective bargaining representative of the PSLPD's rank and file police officers, informed Schichtel about the investigation, advised him of his rights under the law enforcement officers' "Bill of Rights," and indicated that the union would be providing him an attorney if he so desired.

    
    

23. Following this discussion between Respondent and Schichtel, Schichtel sent a memorandum to Lieutenant W.D. Hart of the PSLPD, dated August 18, 1989, which provided in pertinent part as follows:

    
    

    I did not see the VW, and assumed that it fled the area. The VW did return to the scene, but I am unsure if this was before I left to respond to the burglary or after I returned.

    The only conversation I recall was one of the occupants of the VW saying to Officer Dobler, "You didn't have your blue lights on did you?"

    
    

    I assumed that Officer Dobler had obtained the necessary information from them. After he released them from the scene, he told me that they were not pertinent to the accident, and for me not to mention that they stopped. I was unsure of his reasoning, but felt that it was his business. I feel that Officer Dobler was very shook up after the accident, and did not realize what he was doing until it was too late. I feel partially responsible for not stepping in and handling the situation, but I felt I should not override a senior patrolman.

    
    

    I am very sorry for my actions, and I know what I did was wrong. I was in a situation I did not know how to handle, and used poor judgment. I feel confident that if I am faced with a similar situation in the future, I will know how to handle it properly.

    
    

24. The PSLPD suspended Schichtel for five days for having falsely stated to Taylor that the Volkswagon had not stopped at the scene of the accident.

    
    

25. Respondent, on the other hand, was terminated by the PSLPD in accordance with the unanimous recommendation of the review board that considered his case.

    
    

26. Respondent appealed his firing.

    
    

27. Pursuant to a settlement agreement, Respondent was subsequently rehired as a police officer by the PSLPD.

    
    

28. The Commission received notice of Respondent's termination on May 10, 1990.

    
    

29. A case file was prepared and the matter was assigned to Commission employee Linda Hodges, who at the time was working on approximately 300 other cases.

    
    

30. Hodges requested additional information from the PSLPD on June 26, 1990.

    
    

31. The requested information was received on July 20, 1990.

    
    

32. It was not until May 17, 1991, that Hodges completed her work on Respondent's case and prepared and mailed Respondent a letter notifying him that his probable cause hearing would be held on July 24, 1991.

    
    

33. Respondent, through his attorney, requested a continuance of the hearing. The request was granted and the hearing was rescheduled for October 23, 1991.

34. Respondent was notified of such action by letter from the Director of the Division of Criminal Justice Standards and Training, dated August 19, 1991, the body of which read as follows:

    
    

    This notice will serve to advise you that a Panel of the Criminal Justice Standards and Training Commission will meet in regular session on October 23, 1991, 8:30 a.m., at the Gainesville Hilton, 2900 Southwest 13th Street, Gainesville, Florida.

    
    

    The above noted-case will be presented to the panel to determine if probable cause exists to initiate a formal legal proceeding to revoke your Law Enforcement certification. The hearing will be conducted in accordance with the provisions of the Administrative Procedures Act, Chapter 120, Florida Statutes.

    
    

    Due to the preliminary nature of the hearing, no witnesses will be subpoenaed and the Panel will judge probable cause based upon written materials. You may attend the hearing or submit documents which refute, explain, or mitigate the allegation(s) against you. The documentation must be submitted to the attention of Linda Hodges no later than September 5, 1991.

    
    

    Should probable cause be found a later hearing will be made available to you prior to the final resolution of this matter.

    
    

    If you require specific information regarding the alleged misconduct, please contact me or Linda Hodges, Standards and Training Specialist in the Bureau of Standards, at

    904-487-4922. Please notify this office if you are planning to attend the hearing.

    
    

35. Prior to the scheduled probable cause hearing, Respondent unsuccessfully sought to examine the materials in the Commission's file on him to determine its completeness. He then attempted to obtain an injunction to prevent the Commission from holding the probable cause hearing.

    
    

36. Respondent withdrew his request for an injunction based upon the representation made by Commission staff that, if a finding of probable cause was made at the October 23, 1991, hearing, Respondent could ask for a new probable cause hearing at which he would have the opportunity to present additional material information to the probable cause panel.

    
    

37. Respondent's case was heard by the probable cause panel on October 23, 1991, and probable cause was found. Neither Respondent nor his attorney appeared before the probable cause panel.

    
    

38. Schichtel's case was presented to the probable cause panel the very same day. No probable cause was found in his case.

39. The Commission issued an Administrative Complaint against Respondent on December 18, 1991. Respondent requested a formal hearing on the allegations set forth in the Administrative Complaint.

    
    

40. After a finding of probable cause was made in his case, Respondent was allowed to review his Commission file. In his opinion, the file contained inaccurate and incomplete information.

    
    

41. Respondent sought a new probable cause hearing to present additional information to the probable cause panel.

    
    

42. His various requests were denied.

    
    

43. On January 19, 1993, the instant matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested on the allegations set forth in the Administrative Complaint issued against him by the Commission.

    
    

44. Although Respondent is still employed as a police officer by the PSLPD, he has been assigned administrative duties pending the outcome of this disciplinary proceeding.

    
    

45. While the final hearing in this case was held almost three years from the date the Commission had been made aware by the PSLPD of Respondent's alleged misconduct, the passage of time has not adversely affected in any material way Respondent's ability to defend himself against the allegations made against him, nor has it otherwise impaired the fairness of this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

    Respondent's Dismissal Requests

    
    

46. Respondent has argued that the Administrative Complaint "should be dismissed due to (a) the pre-hearing delay, (b) Petitioner's conduct in (1) misleading him on his right to call witnesses at his probable cause hearing, (2) refusing his requests for a new probable cause hearing, and (3) the fact that Officer Schichtel charged with the same offense received a vote of no probable cause from Petitioner's probable cause panel," and (c) the fact that "Respondent's initial termination [by the PSLPD] was in violation of the Policeman's Bill of Rights, in that the sustained offense that gave rise to the jurisdiction [of] the City to terminate the Respondent was an offense [of] which he was never given notice, nor a chance to defend."

    
    

    Prehearing Delay

    
    

47. There has been no showing that, in issuing the instant Administrative Complaint and referring the matter to the Division of Administrative Hearings, the Commission has violated any time limit prescribed by statute or rule. Moreover, the evidence does not establish that any delays by the Commission in issuing the Administrative Complaint and referring the matter to the Division prejudiced in any material way Respondent's defense of the charges made against him or otherwise impaired the fairness of this disciplinary proceeding. Under such circumstances, the Commission should reject Respondent's argument that dismissal of the instant Administrative Complaint is warranted on the ground of "pre-hearing delay." See Carter v. Department of Professional Regulation, Board

    of Optometry, 613 So.2d 78, 81 (Fla. 1st DCA 1993); Farzad v. Department of Professional Regulation, 443 So.2d 373, 375-76 (Fla. 1st DCA 1983); Landes v. Department of Professional Regulation, 441 So.2d 686 (Fla. 2d DCA 1983).

    
    

    Erroneous and Misleading Statements

    
    

48. Respondent has not demonstrated that the Commission or any of its agents made any erroneous or misleading statements concerning "his right to call witnesses at his probable cause hearing." The Commission's interpretation of its own former Rule 11A-6.016, Florida Administrative Code, 4/ as not giving a certificate holder an absolute right to present to the probable cause panel considering his case witness statements in the form of live testimony is not clearly erroneous or unreasonable and therefore the Commission did not misinform Respondent when it advised him that he had no right to subpoena witnesses to appear in person to testify before the probable cause panel at its October 23, 1991, meeting. See Pershing Industries, Inc. v. Department of Banking and Finance, 591 So.2d 991, 993 (Fla. 1st DCA 1991)("[i]t is axiomatic that an agency's construction of its governing statutes and rules will be upheld unless clearly erroneous"). Accordingly, the Commission should reject Respondent's argument that dismissal of the Administrative Complaint is warranted on the ground that such advisement was erroneously given.

    
    

    Second Probable Cause Hearing

    
    

49. The Commission was under no obligation to afford Respondent a second probable cause hearing. Accordingly, it should reject Respondent's argument that its failure to have done so warrants dismissal of the Administrative Complaint.

    
    

    Disparate Treatment

    
    

50. Even if the Commission acted in derogation of its statutory responsibility in failing to initiate disciplinary action against Schichtel for having falsely stated to Taylor that the Volkswagon had not stopped at the scene of the accident, such inaction on the Commission's part would have no impact on its efforts to fulfill that responsibility in the instant case. An administrative agency does not lose its authority to enforce the statute it is charged with administering simply because it fails to prosecute each and every violation of that statute. If the agency chooses to exercise its authority in a particular case, the alleged violator can avoid prosecution based on a claim of disparate treatment only if it is shown that he is being singled out because of vindictiveness or some other impermissible motive on the part of the agency.

    See Downer v. State, 375 So.2d 840, 845 (Fla. 1979); Owen v. Wainwright, 806

    F.2d 1519 (11th Cir. 1986), U.S. cert. denied, 107 S.Ct. 2466 (1987).

    Respondent has failed to make such a showing in the instant case. Absent such a showing, his contention that the Administrative Complaint should be dismissed because he is the victim of selective enforcement by the Commission is without merit.

    
    

    Law Enforcement Officers' Bill of Rights

    
    

51. An employing law enforcement agency's failure to follow procedural requirements in taking disciplinary action against an employee who has engaged in misconduct does not deprive the Commission of its authority to seek the suspension or revocation of that employee's certification as a law enforcement officer based upon the same misconduct. Cf. Walley v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671, 674 (Fla. 1st DCA 1987)("[w]hile the

    Criminal Justice Standards and Training Commission did consider the same act of alleged falsification of information on appellant's employment application and background data form, and chose to dismiss its decertification complaint on the basis of a nunc pro tunc order of expungement, the Commission and the Career Service Commission were engaged in the performance of different functions;" "[t]he Criminal Justice Standards and Training Commission considered the charge in the context of decertification, while the Career Service Commission considered the charge in the context of the Florida Game and Fresh Water Fish Commission's dismissal of appellant").

    
    

    Sufficiency of the Evidence to Prove Alleged Wrongdoing

    
    

52. The instant Administrative Complaint alleges that on or July 28, 1991, Respondent "did then unlawfully and knowingly make false statements to personnel of the Port St. Lucie Police Department concerning his involvement in a traffic accident, with the intent to mislead such personnel." The Administrative Complaint further charges that, in engaging in such conduct, Respondent violated "the provisions of Section 943.1395(5),(6), Florida Statutes [subsequently renumbered Section 943.1395(6),(7), Florida Statutes, and amended by Chapter 92-131, Laws of Florida] and Rule 11B-27.0011(4)(b)(c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character."

    
    

53. At the time of the filing of the Administrative Complaint and at all material times prior thereto, Section 943.1395(5), Florida Statutes, provided that the Commission "shall revoke the certification of any [law enforcement] officer who is not in compliance with the provisions of s. 943.13(1)-(10)." Subsection (6) of Section 943.1395, Florida Statutes, authorized the imposition of certain lesser penalties in appropriate cases.

    
    

54. Section 943.13(7), Florida Statutes, provided, as it still does, that any person employed or appointed as a law enforcement officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."

    
    

55. "Moral character" is

    
    

    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.

    
    

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "acts and conduct 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." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).

56. The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides in pertinent part as follows:

    
    

    (4) For purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(6) or (7), a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), 5/ is defined as:

    . . .

    
    

    1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: sections . . . 837.05, . . . F.S.; or

       
       

    2. 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.

    
    

57. At all times material to the instant case, Section 837.05, Florida Statutes, has provided in pertinent part as follows:

    
    

    Whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime is guilty of a misdemeanor of the first degree . . . .

    
    

58. 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," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation,

    592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 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 797, 800 (Fla. 4th DCA 1983).

    
    

59. Furthermore, the disciplinary action taken can 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); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

60. To the extent that Section 943.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified law enforcement officer "it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

61. An examination of the record in the instant case reveals that the allegations made against Respondent in the Administrative Complaint are not even supported by a preponderance of the evidence.

    
    

62. While the evidence clearly and convincingly establishes that Respondent inaccurately reported to the police officer investigating Respondent's July 28, 1989, accident that the driver of the Volkswagon Respondent had attempted to pass did not stop at the accident scene following the accident, the greater weight of the evidence does not demonstrate that Respondent knew, at the time he made this statement, that he was giving the police officer false information. 6/

    
    

63. Accordingly, the evidence is insufficient to establish that, in making this statement, Respondent violated Section 837.05, Florida Statutes, or otherwise engaged in conduct which would cause one to have substantial doubts concerning his honesty, fairness or respect for the rights of others or for the laws of the state and nation.

    
    

64. The Commission therefore has not meet its burden of proving that Respondent has failed to maintain "good moral character," within the meaning of Section 943.13(7), Florida Statutes, as alleged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE

AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of June, 1993.

STUART M. LERNER

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 23rd day of June, 1993.

ENDNOTES

1/ Respondent also lost one of his contact lenses as a result of the accident.

2/ The greater weight of the evidence does not establish that Respondent realized at the time he was speaking to Selph that Selph was the driver of the Volkswagon that he had attempted to pass.

3/ The greater weight of the evidence does not establish that Respondent knew at the time he made this statement that it was false.

4/ Former Rule 11A-6.016, Florida Administrative Code, was in effect at the time of the October 23, 1991, meeting of the probable cause panel that considered Respondent's case and at the time of the Commission's August 19, 1991, letter to Respondent notifying him of the meeting and that "no witnesses will be subpoenaed and the [p]anel will judge probable cause based upon written materials." Subsection (2) of former Rule 11A-6.016 provided as follows:

The probable cause determination is the conclusion of the preliminary investigation and is not a hearing under Section 120.57, F.S., but the respondent will be entitled to make any oral or written statement or make a presentation or call witnesses.

(Emphasis supplied.)

5/ The 1992 amendment to Section 943.1395, Florida Statutes, did not eliminate the Commission's authority to discipline certified law enforcement officers who fail to maintain "good moral character."

6/ Particularly when viewed in light of other statements he has made regarding the incident and its aftermath, the testimony of Officer Schichtel upon which the Commission relied in attempting to prove Respondent's guilty knowledge is unworthy of belief and therefore has been rejected by the Hearing Officer as a basis upon which to find that Respondent possessed such knowledge.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-0253

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:

The Commission's Proposed Findings of Fact

1-7. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

8-9. To the extent that these proposed findings suggest that Selph drove up and parked alongside (rather than approximately 25 to 30 feet away from) Respondent's patrol car, they have been rejected because they are not supported by persuasive competent substantial evidence. To the extent that proposed finding of fact 9 asserts that Respondent told Selph, "It's not your fault," it has been rejected because it is based upon testimony that is not worthy of belief. Otherwise, these proposed findings have been accepted and incorporated in substance.

10-11. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because they are based upon testimony that is unworthy of belief.

   
   

2. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case; Second sentence, before the comma: Rejected because it is not based upon persuasive competent substantial evidence; Second sentence, after the comma: Rejected because it is based upon testimony that is unworthy of belief.

   
   

3. Accepted and incorporated in substance.

   
   

4. Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case; Remaining sentences: Accepted and incorporated in substance.

16-19. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

3. Accepted and incorporated in substance.

   
   

4. Rejected because it is based upon testimony that is unworthy of belief.

5. To the extent that this proposed finding asserts that all of the representations made in Schichtel's memorandum to Lieutenant Hart were truthful, it has been rejected because it is based upon testimony that is unworthy of belief. Otherwise, it has been accepted and incorporated in substance.

25-26. Accepted and incorporated in substance.

Respondent's Proposed Findings of Fact

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

2. First sentence: Accepted and incorporated in substance; Second, third, fourth and sixth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case; Fifth sentence: To the extent that this proposed finding states that Respondent was "president of the Department's police union," it has been accepted and incorporated in substance. The remaining assertions made in this proposed finding have not been incorporated in this Recommended Order because to do so would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

3-7. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

1. Accepted and incorporated in substance.

   
   

2. First sentence: Accepted and incorporated in substance; Second and third sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

3. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

4. Accepted and incorporated in substance.

   
   

5. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

   
   

6. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

   
   

7. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

   
   

8. To the extent that this proposed finding asserts that "police officers arrived" on the scene after the accident, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

16-17. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.

1. Rejected because Respondent's fellow officers' opinions regarding whether Respondent was attempting "to mislead them about the accident" constitute pure conjecture and speculation on their part.

   
   

2. First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

3. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: To the extent that this proposed finding suggests that Schichtel was "pressured" by his superiors to change his story, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

4. First and second sentences: To the extent that these proposed findings state that Schichtel has given inconsistent statements about what happened at the scene of the accident, it has been accepted and incorporated in substance. To the extent that they assert that "[n]o two statements agree with each other on key issues," it has been rejected because it is not supported by persuasive competent substantial evidence; Third sentence: Rejected because it constitutes commentary on the credibility of a witness' testimony rather than a finding of fact.

   
   

5. To the extent that this proposed finding states that "Schichtel was ordered to give a new statement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

6. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

24-25. Accepted and incorporated in substance.

1. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

   
   

2. Accepted and incorporated in substance.

   
   

3. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

   
   

4. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

   
   

5. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

   
   

6. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

32-34. Accepted and incorporated in substance.

1. To the extent that this finding suggests that Respondent was promised a new probable cause hearing (as opposed to being promised that any request he made for a new hearing would be given consideration rather than rejected summarily), it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

2. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because, even if true, they would have no bearing on the outcome of the instant case.

   
   

3. Accepted and incorporated in substance.

   
   

4. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

   
   

5. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

   
   

6. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes argument rather than a finding of fact.

   
   

7. To the extent that this proposed finding states that the "delay" was not even in part attributable to Respondent, it has been rejected because it is not supported by persuasive competent substantial evidence.

   
   

8. Accepted and incorporated in substance.

   
   

9. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

COPIES FURNISHED:

Dawn Whitehurst, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Richard D. Kibbey, Esquire

46 Camden Avenue Stuart, Florida 34994

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire General Counsel

Florida Department of Law Enforcement

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 of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-000253

Orders for Case No: 93-000253