STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4207

)

JAMES D. ELLZEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard by Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on February 11, 1997 in Bronson, Florida.

APPEARANCES

For Petitioner: Paul D. Johnson, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Joan Stewart, Esquire

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner should revoke, suspend or otherwise discipline Respondent’s certification as a law enforcement officer pursuant to Section 943.1395(7), Florida Statutes.

PRELIMINARY STATEMENT

On or about December 15, 1994 Petitioner Criminal Justice Standards and Training Commission (Petitioner) filed an Administrative Complaint alleging that Respondent James D. Ellzey (Respondent) was guilty of violating Sections 943.1395(6) and 943.1395(7), Florida Statutes, and Rules 11B-27.0011(4)(b) and 11B-27.0011(4)(c), Florida Administrative Code. Respondent requested a formal hearing to contest these allegations on or about January 3, 1995. Petitioner referred this matter to the Division of Administrative Hearings on September 5, 1996.

The undersigned issued a Notice of Hearing scheduling the case for hearing on February 11, 1997. As a preliminary matter before the hearing, Petitioner requested that a transcript of Michelle King Hallman’s testimony before the Chiefland City Commission on August 29, 1994 be admitted into evidence in lieu of her testimony pursuant to Sections 90.804(1)(c) and 90.804(2)(a), Florida Statutes. Petitioner argued that, even though the witness was present at the hearing, she was unable to give testimony because her memory of relevant facts was impaired. The undersigned reserved ruling on whether the transcript of Ms. Hallman’s testimony could be admitted into evidence as a hearsay exception.

During the hearing, Petitioner presented the testimony of two witnesses, Police Chief Henry W. Nicholson and Michelle King

Hallman (formerly Michelle King). Petitioner offered two exhibits which were accepted into evidence without objection.

Respondent testified on his own behalf. He presented two additional witnesses, Kimberly Dawn Johnson and Michael James Brannin. Respondent intended for these witnesses to testify concerning conversations they overheard or had with Ms. Hallman. Their testimony was excluded as hearsay which did not supplement or explain otherwise admissible evidence.

Respondent offered seven exhibits which were accepted into evidence. One of the exhibits that Respondent offered, Respondent’s Exhibit Number 2, was the transcript of Ms.

Hallman’s August 29, 1994 testimony before the Chiefland City Commissioners. Respondent offered this exhibit for impeachment purposes.

After reviewing the record, the undersigned has determined that Ms. Hallman’s memory was not sufficiently impaired so that her August 29, 1994 testimony, Respondent’s Exhibit Number 2, could be admitted into evidence in lieu of her testimony.

However, the transcript is admissible to the extent it supplements or explains otherwise admissible evidence and for impeachment purposes.

The transcript of the proceeding was filed on March 5, 1997.

The parties filed proposed findings of fact and conclusions of law on March 25, 1997. Respondent filed an amended proposed

recommended order on March 26, 1997 which contained no substantive changes.

FINDINGS OF FACT

1. Petitioner issued Certificate Number 91034 to Respondent on August 24, 1984. At all times material to this matter, Respondent worked as a patrolman for the City of Chiefland Police Department. During the last couple months of his active duty service, he was training to become a K-9 officer.

2. In 1993, Petitioner issued a letter of guidance to Respondent and placed him on one year of probation after Respondent admitted that he had engaged in sex while on duty.

3. On March 17, 1994, Henry W. Nicholson became Chief of Police in the City of Chiefland.

4. In the summer of 1994, Michelle Hallman (formerly Michelle King) worked at ABC Pizza. She was eighteen years old at that time. On days that she was not working, Michelle sometimes went to ABC Pizza to help the other employees close up.

5. On one such evening, Ms. Hallman met Respondent and Officer Hicks in the ABC Pizza Parking lot. They had a casual conversation in which Ms. Hallman joked that she would tell the Chief that Respondent had pinched her on the butt. Respondent laughed and replied that he would tell the Chief that Ms. Hallman dropped on her knees and begged. Respondent also told Ms. Hallman that he did not need that kind of trouble again.

6. The Chief pulled into the parking lot while Ms. Hallman was talking to Respondent and Officer Hicks. The Chief needed to let Respondent know that he was not planning to go to K-9 training with Respondent that evening.

7. About a month later, on June 10, 1994, Respondent was patrolling near a community center known as the Pine Land Center. He saw Ms. Hallman riding by in her car. He and Ms. Hallman pulled their respective cars into the parking lot of the community center and had another casual conversation. During this conversation, Ms. Hallman asked Respondent if he ever messed around. Respondent replied that because of his past problems he never went out with anyone unless the girl asked him.

8. The next evening, June 11, 1994, Respondent began his shift at 6:00 p.m. He was scheduled to work a twelve hour shift. Early in the evening, Respondent saw Deputy Meeks, a deputy with the sheriff’s office. They agreed to eat supper together at the Subway around 11:00 p.m.

9. As the evening progressed, Respondent answered several calls. Between 8:30 and 9:00 p.m. Respondent responded to a call involving a dog bite.

10. After completing the matter involving the dog bite, Respondent saw Ms. Hallman at or near the Circle K. She told him she wanted to talk to him. They agreed to meet at a small public park known as Delma Lock.

11. The park was near a school and a football field. A baseball game was in progress at a baseball field located between the Circle K and the park. The area of the park in which Respondent and Ms. Hallman met was dimly lit. Even so, Ms. Hallman felt like there were too many people around the park or driving by that might recognize her. Respondent suggested they go to the police station.

12. Respondent parked his patrol car in front of the police station. When Ms. Hallman arrived she parked on the side of the building. They went in the side door and into Respondent’s office. There was no other person present in the building. Ms. Hallman told Respondent that she had been a witness to an automobile accident earlier in the day.

13. Respondent and Ms. Hallman had been in his office just a few minutes when Deputy Meeks knocked on the back door of the police station. Respondent opened the door for Deputy Meeks who was ready to go to the Subway for supper.

14. While Respondent and Deputy Meeks were eating their sandwiches at the Subway, Ms. Hallman came in to get a sandwich for a friend of hers. She carried on a brief conversation with Respondent.

15. Sometime around midnight, Respondent spent a few minutes at the Midtown Jiffy visiting with a friend of his, Joan Schubert.

16. From 12:46 to 12:56 a.m., Respondent checked on the alarm at the Senior Citizens Center.

17. Respondent next saw Ms. Hallman near the Circle K. They agreed to meet back at the Delma Lock park. Once again there were too many people at the park for Ms. Hallman to be

    comfortable. Respondent suggested they meet at the Department of Transportation building. He told Ms. Hallman how to find the building.

18. Ms. Hallman arrived at the designated building first. Respondent pulled into the driveway and told her to follow him. They drove behind the building and parked. Both of them got out of their cars. The area was well lit, but cars from the highway in front could not see what was going on.

19. Respondent took off his gun belt and dropped his pants. Ms. Hallman dropped her shorts. They had sexual intercourse standing up and leaning against the trunk of Ms. Hallman’s car.

20. After having sex, Respondent heard a radio call for Deputy Meeks to respond to a disturbance at Levy Norris’s house. The call originated around 1:35 a.m. The dispatcher explained that the Norris residence was across the road from the Catholic church and down an unpaved road beside Thompson’s garage. Respondent knew that Deputy Meeks was making the final loop of his patrol before going off duty at 2:00 a.m.

21. Respondent was out of breath when he got to his radio. He called Deputy Meeks on the radio and asked him where he was

    coming from. Deputy Meeks replied that he was in Rosewood which was at least ten miles away. Respondent said that he was “right here at the church.” Respondent asked Deputy Meeks whether he should wait or go on to the Norris residence. Deputy Meeks told Respondent to go ahead and gave Respondent directions.

22. Respondent left Ms. Hallman in the parking lot of the Department of Transportation building. She did not see him again.

23. Respondent was enroute to the Norris residence by 1:38

    
    

    a.m. He arrived on the scene at 1:42 a.m. It took him four minutes to get there. The Catholic church was used as a landmark to identify the road on which Levy Norris lived. It is located in the same vicinity as the Department of Transportation building where Respondent met Ms. Hallman.

24. Later in June of 1994, Ms. Hallman went to Chief Nicholson to complain that another of his officers made derogatory comments about her which caused her to lose a prior job. Ms. Hallman said the same officer was attempting to get her fired from her current job by making derogatory remarks about her to her employer. In the course of investigating this complaint, Chief Nicholson learned that Respondent may have had an affair with Ms. Hallman.

25. Chief Nicholson called Ms. Hallman and requested that she come to his office. At that meeting, Ms. Hallman denied that she and Respondent had sex.

26. A day or two later, Ms. Hallman returned to Chief Nicholson’s office. She admitted that she had sex with Respondent.

27. Respondent never included his interaction with Ms. Hallman in his duty log. Respondent gave sworn statements to Chief Nicholson on June 24, 1994 and July 1, 1994. When questioned, Respondent knowingly made false statements to mislead Chief Nicholson about his relationship with Ms. Hallman.

28. Chief Nicholson concluded his internal investigation and decided to terminate Respondent’s employment. Chief Nicholson advised Respondent of his decision in a memorandum dated July 6, 1994 and received by Respondent’s counsel on July 25, 1994.

29. The Chiefland City Commission, sitting as the City Personnel Review Board, conducted a hearing on August 29, 1997. Respondent’s employment with the City of Chiefland was terminated effective September 6, 1994.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Section 120.57, Florida Statutes.

31. Petitioner has the burden of proving by clear and convincing evidence that Respondent failed to maintain “good moral character” as required by Section 943.13(7), Florida Statutes, because he engaged in sexual conduct with Ms. Hallman while on duty, and knowingly made false statements concerning material matters to investigators of the Chiefland Police Department in violation of Sections 943.1395(6) and 943.1395(7), Florida Statutes (Supp. 1996), and Rules 11B-27.0011(4)(b) and 11B-27.0011 (4)(c), Florida Administrative Code.

32. Section 943.13(7), Florida Statutes, requires that law enforcement officers “[h]ave good moral character as determined by a background investigation under procedures established by the commission.”

33. Section 943.1395(5), Florida Statutes (Supp. 1996), states as follows:

    (5) The employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7). If an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7), the employing agency must submit the investigative findings and supporting information and documentation to the commission in accordance with rules adopted by the commission.

34. Section 943.1395(6), Florida Statutes (Supp. 1996), states as follows:

    (6) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

    
    

    That section does not apply here because there is no evidence that Respondent violated Section 943.13(4), Florida Statutes, by being convicted of a felony or a misdemeanor involving perjury or a false statement, or by receiving a dishonorable discharge from any of the Armed Forces of the United States. He has not pled guilty or nolo contendere or been found guilty of such crimes.

    Section 943.13(4), Florida Statutes. Additionally, there is no evidence that Respondent executed: (a) a false affidavit-of- applicant form as set forth in Section 943.13(8), Florida Statute; (b) a false affidavit-of-compliance form as set forth in Section 943.133(2), Florida Statutes; or (c) a false affidavit- of-separation form as set forth in Section 943.139(2), Florida Statutes.

35. Section 943.1395(7), Florida Statutes (Supp. 1996), provides as follows:

    (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s.

    943.13(7),the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and condition, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    36. Rules 11B-27.0011(4)(b) and 11B-27.0011(4)(c), Florida

    
    

    Administrative Code, provide as follows in pertinent part:

    
    

    1. For the purposes of the Commission’s implementation of any of the penalties specified in Section 943.1365(6) or (7), F.S., a certified officer’s failure to maintain good moral character, as required by Section 943.13(7), F.S., 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 . . . 837.012, . . . .

          
          

       2. The perpetration by the officer of an act which constitutes: . . .

       1. Engaging is sex while on duty.

       2. False statements. . . . .

1. Section 837.012(1) Florida Statutes, states as follows:

   
   

   1. Whoever makes a false statement, which he does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2. In this case, the evidence is clear and convincing that Respondent engaged in sex with Ms. Hallman while he was on duty and that he gave Chief Nicholson false sworn statements regarding material matters during the subsequent internal investigation. Respondent has failed to maintain “good moral character” as required by Section 943.13(7), Florida Statutes.

3. Rule 11B-27.005(5), Florida Administrative Code, states as follows in pertinent part:

   1. When the Commission finds that a certified officer has committed an act which violates Section 943.1397, F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines: . . . .

   * * *

   1. For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses, pursuant to Rule 11B- 27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to revocation. . . .

      
      

   2. For the perpetration by the officer of an act or conduct, as described in Rule 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b), of this rule, the action of the Commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following:

   * * *

   4. Engaging in sex Probation to while on duty Revocation

   * * *

   6. False statements Probation of

   certification to revocation

4. There are certain aggravating circumstances which must be considered in this case. Section 943.13(8)(d), Florida Statutes (Supp. 1996). First, Respondent was already on probation for engaging in sex while on duty the year before when he committed the instant offense. Rules 11B-27.005(6)(f) and 11B-27.005(6)(q), Florida Administrative Code. Second,

Respondent committed a second offense by giving false statements under oath that he did not have sex with Ms. Hallman. Rules 11B- 27.005(6)(e) and 11B-27.005(6)(u), Florida Administrative Code.

There are no mitigating circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that Petitioner enter a Final Order revoking Respondent’s law enforcement certification.

DONE AND ORDERED this 8th day of April, 1997, in Tallahassee, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997.

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Joan Stewart, Esquire

300 East Brevard Street Tallahassee, FL 32301-1218

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, FL 32302

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004207

Orders for Case No: 96-004207