STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

MICHAEL J. SAVAGE, )

)

Respondent. )

Case No. 03-1715PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this proceeding on July 22, 2003, in Lake Worth, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 13, 2002, and filed with the Division of Administrative Hearings on May 12, 2003, Petitioner seeks to revoke the law enforcement certificate of Respondent, Michael J. Savage (Respondent or Savage).

Respondent timely requested a hearing to challenge the proposed discipline. The case was referred to the Division of Administrative Hearings which noticed and conducted a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Savage failed to appear for hearing. For reasons set forth fully in the record, the tribunal made a factual finding that Savage made a conscious decision, without good cause, not to attend.

The hearing therefore proceeded, and Petitioner presented the testimony of Elizabeth McElroy of the Palm Beach County Sheriff’s Office, as well as eleven exhibits.

A transcript of the proceedings was filed on August 7, 2003, and a timely Proposed Recommended Order was submitted by

Petitioner.

FINDINGS OF FACT

1. At all times material to this case, Savage is a certified correctional officer in the State of Florida. As such, he holds a position of high trust.

2. Savage abused that trust by lying on his application for employment as a court bailiff in Palm Beach County.

3. The deception came to light between March 4, 2002, and April 15, 2002, when Elizabeth McElroy (McElroy) in her official capacity as background investigator for the Palm Beach County Sheriff’s Office, attempted to verify information provided under oath by Savage, and to search law enforcement databases to assure that he had been truthful in claiming that he had no criminal record.

4. Instead, McElroy's investigation revealed that Savage failed to disclose two arrests, one of which involved the use of a firearm.

5. Florida law requires, as a minimum qualification for its correctional officers, that they be of good moral character. Florida law further provides that officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement.

6. The public has every right to expect that those who work in law enforcement will, at a minimum, tell the truth under oath. Individuals can be rehabilitated and can go on to occupy positions of trust, but that decision is to be made by duly authorized licensing authorities acting upon complete information. It should not be necessary for a background

   investigator to have to unearth information which the individual concealed on an employment application.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding.

8. Petitioner has the burden to show 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).

9. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

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

   
   

10. "What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same ever available . . ." White v. Beary, 237 So. 2d

    263 (Fla. 1st DCA 1970).

    
    

11. Here, the facts persuasively establish Savage's lack of good moral character. In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), the court defined moral character as ". . . 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. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character . . ."

12. Lack of candor under oath, particularly about involvement in the criminal justice system as a defendant, is more than an indiscretion. In Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454 (Fla. 1978), the Florida Supreme Court, in a case involving admission to the bar, stated that a finding of a lack of good moral character

    should 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.

13. Savage lacks the requisite moral character for a career in law enforcement. The public, and professional colleagues who entrust one another with their lives, must be able to trust the oath of a corrections officer. If an individual cannot be honest on a job application, the state is entirely justified in not taking the risk that he will be honest on the job.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Savage's correctional certificate be permanently revoked.

DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 3rd day of September, 2003.

COPIES FURNISHED:

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

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael J. Savage 7547 Edisto Drive

Lake Worth, Florida 33467

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: 03-001715PL

Orders for Case No: 03-001715PL