STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 01-4499PL

)

JAMAEL A. FRAZIER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this proceeding on February 14, 2002, in Tallahassee, Florida, before Suzanne Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Philip W. Lindley, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jamel A. Frazier, pro se

1016 Crossingbrook Way

Tallahassee, Florida 32311 STATEMENT OF THE ISSUES

The issues are whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

In an Administrative Complaint dated July 14, 2000, Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner), alleged that Respondent Jamel A. Frazier (Respondent) violated Sections 943.1395(6) and/or 943.1395(7), Florida Statutes, and Rules 11B-27.0011(4)(a) and/or 11B-27.0011(4)(b), Florida

Administrative Code. The Administrative Complaint also alleged that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that correctional officers in the State of Florida have good moral character.

Respondent filed an Election of Rights form disputing the allegations set forth in the Administrative Complaint and requested a formal hearing. Petitioner referred the case to the Division of Administrative Hearings on November 20, 2001.

A Notice of Hearing dated November 31, 2001, scheduled the case for formal hearing on February 7, 2002. However, on January 7, 2002, Petitioner filed Petitioner's First Request for Continuance. An order dated January 8, 2002, granted a continuance and rescheduled the hearing for February 14, 2002.

During the hearing, Petitioner presented the testimony of three witnesses. Petitioner offered five exhibits, which were admitted into evidence.

Respondent testified on his own behalf. Respondent did not offer any exhibits for admission into evidence.

The court reporter filed the transcript of the proceeding on February 28, 2002. On March 1, 2002, Petitioner filed its Proposed Recommended Order. As of the date of this Recommended Order, Respondent has not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on January 27, 1999. Respondent holds Correctional Certificate Number 184090.

2. At all times material to this proceeding, the Department of Corrections employed Respondent at Wakulla Correctional Institution (WCI) as a correctional officer. On September 11, 1999, Respondent was performing his duties as a perimeter guard at WCI. Sometime after 4:00 a.m., Respondent was involved in an automobile accident while operating a Department of Corrections (DOC) motor vehicle.

3. The accident occurred when Respondent became drowsy and caused his DOC vehicle to strike the rear end of a second DOC motor vehicle, a pick-up truck. The vehicles impacted at a slight angle. As a result of the accident, the DOC motor vehicle driven by Respondent was damaged in excess of $500.

4. On September 11, 1999, Respondent reported his motor vehicle accident to his supervisors, Sergeant Fannie Lee Perry and Lieutenant Samuel S. McNeely. Respondent then prepared a DOC Incident Report, indicating that he hit a trash can with his DOC vehicle. He did not refer to the collision with the second vehicle in the report.

5. Knowing that the Incident Report was false, Respondent signed it and gave it to Lieutenant McNelly. Lieutenant McNelly was performing his duties as an officer and a public servant when he received Respondent’s written Incident Report.

6. DOC requires its perimeter guards to keep a written log as part of their official duties. The log records the times that the perimeter guards perform certain tasks.

7. When Respondent went inside WCI to report his motor vehicle accident to Lieutenant McNeely and to complete his written Incident Report, Officer Rousseau was dispatched to relieve Respondent of his perimeter guard duties. Upon assuming duties her duties as a perimeter guard, sometime between 4:00 and 4:15 a.m., Officer Rousseau found that Respondent had completed the Perimeter Post Log in advance to reflect security checks through shift completion at 6:00 a.m. Officer Rousseau reported this violation of DOC regulations to Lieutenant McNeely.

8. After the motor vehicle accident, Respondent’s DOC vehicle was taken to the WCI repair shop. Subsequently, maintenance personnel in the shop questioned the accuracy of the accident report because the damage to the motor vehicle did not appear to result from a collision with a trash can.

9. Inspector Barrentine from the DOC's Office of the Inspector General was notified about the accident. On September 14, 1999, Inspector Barrentine began an investigation. She began by inspecting the area around the trash can.

10. Inspector Barrentine found no broken glass at or near the location of the trash can. Instead, Inspector Barrentine found evidence of broken glass about 200 feet away from the alleged point of impact. Inspector Barrentine then requested the assistance of the Florida Highway Patrol.

11. On September 16, 1999, the Florida Highway Patrol dispatched Trooper Charles Deal to assist Inspector Barrentine. Trooper Deal compared the damage to Respondent's DOC vehicle to the damage on the DOC pick-up truck. He concluded that the front end of Respondent's DOC vehicle had struck the rear bumper of the DOC pick-up truck.

12. On September 17, 1999, Inspector Barrentine interviewed Respondent. During the interview, Respondent admitted to hitting the DOC pick-up truck, to knowingly and

    intentionally filing a false written report of the accident, to moving glass from the point of impact, and to completing his perimeter log sheet in advance.

13. Respondent’s testimony during the formal hearing that he did not intentionally falsify the incident report is not credible. Likewise Respondent’s denial that he completed the perimeter log in advance or that he does not remember completing the perimeter log is not credible.

14. The Respondent made two false official statements in writing on DOC forms. Respondent made these false statements with the intent to mislead his superiors who were acting as public servants in the performance of their official duties.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

16. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. The Administrative Complaint alleges that Respondent violated Section 837.06, Florida Statutes when he submitted the false Incident Report and the false Perimeter Post Log. The Administrative Complaint also alleges that Respondent has

    failed to maintain good moral character as required by Section 943.13(7), Florida Statutes.

18. Section 943.13, Florida Statutes, establishes the minimum qualifications for correctional officers in Florida. One of the qualifications is to maintain "a good moral character as determined by a background investigation under procedures established by the commission." Section 943.13(7), Florida Statutes.

19. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), a state agency denied an application for a beverage license after an administrative finding that the owner was not of good moral character. In that case, the court gave the following definition of moral character:

    Moral character as used in this statute, means 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., 347 So. 2d at 1105.

    
    

20. In Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of good moral character,

    [S]hould not be restricted to those acts that reflect moral turpitude, but rather extends to 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.

    
    

    See also White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).

    
    

21. The position of a law enforcement or correctional officer is one of great public trust. There can be no more basic public expectation than that those who enforce the laws must themselves obey the law, City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

22. Rule 11B-27.0011(4), Florida Administrative Code (1999), defines "good moral character" as follows in relevant part:

    (4) For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

    
    

    * * *

    
    

    (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

    1. Sections . . . 837.06 . . . F.S.

    
    

23. Section 837.06, Florida Statutes, provides, in pertinent part, as follows:

    False official statements.--Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree,

    punishable as provided in s. 775.082 or s. 775.083.

    
    

24. Petitioner has provided clear and convincing evidence that Respondent knowingly and intentionally submitted two false official reports in violation of Section 837.06, Florida Statutes. Respondent's conduct in submitting these false reports clearly and convincingly indicates that he has failed to maintain good moral character in violation of Section 943.13, Florida Statutes.

25. Section 943.1395(7), Florida Statutes, provides as follows in relevant part:

    (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.

    
    

    * * *

    
    

    (e) Issuance of a reprimand.

    
    

26. Rule 11B-27.005(5), Florida Administrative Code (1999), provides that:

    (5) When the Commission finds that a certified officer has committed an act that violates section 943.13(7), 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 that 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 suspension of certification. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following:

       * * * Recommended

       Violation: Penalty Range:

       
       

       4. False . . . Revocation statements

       (. . . 837.06 . . . F.S.

       
       

       * * *

       
       

    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 (5)(a) and (b), of this rule section, the action of the Commission shall be to impose the following penalties, absent aggravating or mitigating circumstances:

    
    

    * * *

    
    

    Recommended

    Violation: Penalty Range:

    
    

    4. False Suspension of

    statements . . . certification to revocation

    
    

27. Rule 11B-27.005, Florida Administrative Code (1999), provides the following disciplinary guidelines that are applicable here:

    (4) The Commission sets forth in paragraph (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have been found by the Commission to have violated section 943.13(7), F.S. . . The disciplinary guidelines are based upon a "single count violation" of each provision listed.

    
    

    * * *

    
    

    (6) The Commission shall be entitled to deviate from the disciplinary

    guidelines . . . upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one (1) or more of the following:

    (a) Aggravating circumstances.

    
    

    * * *

    
    

    1. Whether the misconduct was committed while the officer was performing his or her other duties.

    2. The number of violations found by the Commission.

       
       

       * * *

       
       

       5. The severity of the misconduct.

       
       

       * * *

       7. The actual damage, physical or otherwise, caused by the misconduct.

       
       

28. The aggravating circumstances that exist in this case are as follows: (a) The misconduct occurred while the Respondent was on duty; (b) Respondent engaged in two separate acts of false official statements; and (c) Damage to state property exceeded $500. 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 Petitioner's certification as a correctional officer.

DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida.

___________________________________ SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002.

COPIES FURNISHED:

Philip W. Lindley, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jamel A. Frazier

1016 Crossingbrook Way

Tallahassee, Florida 32311

Rod Caswell, Program Director Division of Criminal Justice

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

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services 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 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: 01-004499PL

Orders for Case No: 01-004499PL