DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. )
MICHAEL L. SHUMATE, )
Respondent. )
Case No. 03-2477PL
A formal hearing was conducted in this proceeding before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on October 28, 2003, in Melbourne, Florida.
For Petitioner: Linton B. Eason, Esquire
For Respondent: Michael L. Shumate, pro se
Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly appropriating money of another to his own use and/or did falsify
official records with corrupt intent to obtain a benefit for himself, during the period July 5, 2000, through October 6, 2000, as set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Respondent is certified by Petitioner as a law enforcement officer in the State of Florida. In an Administrative Complaint dated March 9, 2001, Petitioner alleged that Respondent violated the provisions of Sections 812.014, 839.25, 943.1395(6) and/or (7), Florida Statutes (2000), and Florida Administrative Code Rule 11B-27.0011(4)(a) and that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that law enforcement 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.
The case was referred to the Division of Administrative Hearings on July 9, 2003. Following two continuances granted at the request of Respondent, a formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes (2003).
At the hearing, Petitioner presented the testimony of one witness: Captain Mark Klayman, City of Cocoa Police Department, and offered 29 exhibits which were admitted in evidence.
records and that the copies provided are correct copies of the original records. Respondent testified on his own behalf. No exhibits were admitted into evidence on behalf of Respondent. At the request of Respondent and over Petitioner's objections, the record of the hearing was to remain open for a period of
14 days, in order to allow Respondent to take the deposition of one additional witness. On October 29, 2003, Respondent, by letter, waived his right to depose that witness.
Petitioner and Respondent agreed that the time for filing proposed recommended orders was ten days from the filing of the transcript or the late deposition, whichever was last. The Transcript was filed on November 18, 2003. Petitioner filed its Proposed Recommended Order on December 8, 2003. Respondent has not filed his proposals as of the date of this Recommended
Order.
Respondent, Michael L. Shumate, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate Number 160689 on January 24, 1996.
During the period of July through October 2000, Respondent was employed by the City of Cocoa Police Department as a police officer.
Sometime in October 2000, Mark Klayman (Captain Klayman), Captain of the City of Cocoa Police Department, was
informed by the Chief's secretary that Respondent had submitted frequent court overtime sheets and had been paid for an unusually large amount of overtime hours.
The standard procedure requires that the court overtime form be picked up by the police officer at the police department. It is the officer's duty, in order to be paid for court overtime, to completely fill out the form and have a court official sign it in the space designated. The officer then must drop off the completed form at the Chief's secretary's desk or in her office door envelope.
On or about July 5, 2000, Respondent submitted a court overtime form involving Defendant Christopher Wolfe (Defendant Wolfe), indicating that he was in court from 9:00 a.m. until 1:30 p.m. on the above-mentioned date. Respondent received overtime pay based on this form.
Court records for Defendant Wolfe indicated that no judicial activity occurred during the entire month of July. The court records also indicate that Respondent was not on the witness list in the State's case against Defendant Wolfe. Additionally, there are no indications from the radio log that Respondent was en-route to court or attended court for that time-period.
On or about July 7, 2000, Respondent submitted a court overtime form involving Defendant Danny Sheffield (Defendant
Sheffield), indicating that he was in court from 8:45 a.m. until 5:15 p.m. on the above-mentioned date. Respondent received overtime pay based on this form.
Court records for Defendant Sheffield indicate that no judicial activity occurred on July 7, 2000. In fact, court records indicate the Defendant Sheffield pled to charges, originally filed by Respondent, in April of 2000.
On or about August 7, 2000, Respondent submitted a court overtime form involving Defendant Martorell Williams (Defendant Williams), indicating that he was in court from 9:00 a.m. until 1:45 p.m. on the above-mentioned date. The
court overtime form submitted indicated that Judge Lober was the judge in the case involving Defendant Williams. Respondent was paid for overtime on this case.
Court records for Defendant Williams indicate that no judicial activity occurred on August 7, 2000. Court records indicate that the docket sounding for Defendant Williams occurred on November 6, 2000, before Judge Majeed. The case number was altered to reflect that it was a felony case. Defendant Williams' case was in fact a misdemeanor case. Further, Respondent was on routine patrol duty on August 7, 2000, as reflected by the radio log, during the time contained on the court overtime form.
On or about July 21, 2000, Respondent submitted a court overtime form involving Defendant Steven Jackson (Defendant Jackson), indicating that he was in court from
8:45 a.m. until 3:30 p.m. on that date. Respondent was paid for overtime on this case.
Court records for Defendant Jackson indicate that no judicial activity occurred on July 21, 2000.
On or about July 24, 2000, Respondent submitted a court overtime form involving Defendant Dario Clark (Defendant
Clark), indicating that he was in court from 8:45 a.m. until 1:15 p.m. on the above-mentioned date. Respondent was paid for overtime on this case.
Court records for Defendant D. Clark indicate that no judicial activity occurred on July 24, 2000, or for the entire month of July. In addition, the radio log does not indicate any activity regarding Respondent on July 24, 2000, and the daily attendance record indicates that Respondent had called in sick on that date.
On or about July 27, 2000, Respondent submitted a court overtime form involving Defendant Mark Edward Meyers (Defendant Meyers), indicating that he was in court from 8:45 a.m. until 2:00 p.m. on the above-mentioned date. Respondent received overtime pay on this case.
Court records for Defendant Meyers indicate that no judicial activity occurred on July 27, 2000. The radio log does not indicate any activity regarding Respondent on July 27, 2000. Judge McCluan, the assigned Judge for the case, was on vacation that week.
On or about July 28, 2000, Respondent submitted a court overtime form involving Defendant Joseph Kuhns (Defendant Kuhns), indicating that he was in court from 9:15 a.m. until 4:00 p.m. on the above-mentioned date. Respondent was paid overtime on this case.
Court records for Defendant Kuhns indicate that no judicial activity occurred on July 28, 2000. The case against Defendant Kuhns never went to trial and was, in fact, nolle prossed on September 15, 2000, by the State Attorney's Office.
Fridays were Respondent's regularly scheduled days off, which is reported on Respondent's Daily Attendance Record. The radio log does not indicate any activity regarding Respondent on July 28, 2000.
On or about July 31, 2000, Respondent submitted a court overtime form involving Defendant Preston Billings (Defendant Billings), indicating that he was in court from 9:00 a.m. until 1:45 p.m. on the above-mentioned date. Respondent received overtime pay for this case.
Court records for Defendant Billings indicate that no judicial activity occurred on July 31, 2000, and, in fact, the court records reflect that Defendant Billings pled guilty to the pending charges on May 1, 2000. Also, importantly, the time sheet for Respondent indicates that Respondent was on bereavement leave for July 31, 2000. The radio log does not indicate any activity regarding Respondent on July 31, 2000.
On or about August 1, 2000, Respondent submitted a court overtime form involving Defendant Rashad Henderson (Defendant Henderson), indicating that he was in court from 8:45 a.m. until 2:00 p.m. on that date. Respondent was paid overtime for this case.
Court records for Defendant Henderson indicate that no judicial activity occurred on August 1, 2000, and the radio log does not indicate any activity regarding Respondent on August 1, 2000. Further, the time sheet for Respondent indicates that Respondent was on bereavement leave on July 31, 2000, and
August 1, 2000.
On or about August 10, 2000, Respondent submitted a court overtime form involving Defendant Meyers, indicating that he was in court from 8:00 a.m. until 3:15 p.m. on that date. Respondent received overtime pay for this case.
Radio logs indicate that Respondent was en-route to work at 2:16 p.m., which would have been impossible if he had been in court since 8:00 a.m.
On or about August 11, 2000, Respondent submitted a court overtime form involving Defendant Henderson, indicating that he was in court from 8:00 a.m. until 5:15 p.m. on the above-mentioned date. Respondent was paid overtime on this case.
Radio logs indicate Respondent was at the courthouse at 7:49 a.m. However, the hearing, for which Respondent was to appear, was canceled at 8:00 a.m. Respondent applied for 8.25 hours overtime for his court appearance on that date.
On or about August 14, 2000, Respondent submitted a court overtime form involving Defendant Alphonso Christy (Defendant Christy), indicating that he was in court from 8:00 a.m. until 3:30 p.m. on the above-mentioned date for a
total of 6.75 hours overtime. Respondent received overtime pay for this case.
Court records indicate no activity for Defendant Christy on August 14, 2000.
On or about August 16, 2000, Respondent submitted a court overtime form involving Defendant James D. Gann (Defendant Gann), indicating that he was in court from 11:00 a.m. until
2:45 p.m. on that date. Respondent was paid overtime for this case.
Radio logs indicate that Respondent was en-route to court at 12:41 p.m. This would make an 11:00 a.m. appearance impossible.
On or about August 22, 2000, Respondent submitted a court overtime form involving Defendant John T. Lambert (Defendant Lambert), indicating that he was in court from 9:00 a.m. until 10:15 a.m. on that date. Respondent received overtime pay on this case.
Radio logs do not reflect activity by Respondent on that date.
On or about August 23, 2000, Respondent submitted a court overtime form involving Defendant Billy Sutton (Defendant Sutton), indicating that he was in court from 8:15 a.m. until 2:00 p.m. on that date for a total of 5.75 hours overtime. Respondent was paid for this claim of overtime.
Court records do not show that the Sutton matter exists.
On or about August 25, 2000, Respondent submitted a court overtime form involving Defendant Edgar Wilson (Defendant
Wilson), indicating that he was in court from 8:00 a.m. until 5:15 p.m. on the above-mentioned date for a total of 9.25 hours. Respondent was paid for this claim.
Radio logs do not show Respondent made a court appearance on that date.
On or about August 28, 2000, Respondent submitted a court overtime form involving Defendant Victor Price (Defendant
V. Price), indicating that he was in court from 8:00 a.m. until 2:30 p.m. on that date for a total of 6.5 hours overtime. Respondent was paid overtime based on this claim.
Court records indicate this case was disposed of on July 7, 2000, by a plea.
On or about August 30, 2000, Respondent submitted a court overtime form involving Defendant Russell B. Wilson (Defendant R. B. Wilson), indicating that he was in court from 8:00 a.m. until 2:15 p.m. on the above-mentioned date. Respondent was paid on this claim.
Radio logs show that Respondent called in at
1:22 p.m., but put in for overtime from 8:00 a.m. until 2:15 p.m.
On or about September 7, 2000, Respondent submitted a court overtime form involving Defendant Blecher, indicating that he was in court from 9:00 a.m. until 1:45 p.m. for 6.5 hours on that date. Respondent was paid on this claim.
Court records show no activity for that defendant on that date.
On or about September 8, 2000, Respondent submitted a court overtime form involving Defendant Delia M. Price (Defendant D. M. Price), indicating that he was in court from 7:45 a.m. until 5:30 p.m. on the above-mentioned date. Respondent was paid overtime on this claim.
Court records show no activity for that defendant on that date.
On or about September 12, 2000, Respondent submitted a court overtime form involving Defendant William Wilson (Defendant W. Wilson), indicating that he was in court from 9:00 a.m. until 4:15 p.m. on that date. Respondent was paid overtime on this claim.
Radio records indicate Respondent was en-route to court at 1:06 p.m.
On or about September 20, 2000, Respondent submitted a court overtime form involving Defendant R. B. Wilson indicating that he was in court from 7:45 a.m. until 5:15 p.m. on the above-mentioned date. Respondent was paid on this claim.
Radio logs indicate Respondent was en-route to court at 9:10 a.m.
On or about September 21, 2000, Respondent submitted a court overtime form involving Defendant Henderson indicating that he was in court from 9:00 a.m. until 2:30 p.m. on the
above-mentioned date. Respondent was paid overtime on this claim.
Radio logs indicate that Respondent completed a special detail on this date at 3:39 p.m. Further, court records do not indicate any activity for Defendant Henderson on this date.
On or about September 22, 2000, Respondent submitted a court overtime form involving Defendant Jorge Guzman (Defendant Guzman), indicating that he was in court from 7:45 a.m. until 5:15 p.m. on the above-mentioned date. Respondent was paid overtime on this claim.
Court records indicate no activity for Defendant Guzman on that date. Respondent mistakenly listed this defendant by the name of "Jackson."
On or about September 27, 2000, Respondent submitted a court overtime form involving Defendant Michelle Logsdon (Defendant Logsdon), indicating that he was in court from
8:00 a.m. until 2:15 p.m. on the above-mentioned date. Respondent was paid overtime on this claim.
Court records indicate this matter was disposed of on August 18, 2000.
On or about September 29, 2000, Respondent submitted a court overtime form involving Defendant Price, indicating that
he was in court from 7:45 a.m. until 5:15 p.m. on that date. Respondent was paid overtime on this claim.
Court records indicate no activity for this defendant on the above date.
On or about October 6, 2000, Respondent submitted a court overtime form involving Defendant Terry Clark (Defendant
T. Clark), indicating that he was in court from 7:45 a.m. until 5:00 p.m. on the above-mentioned date. Respondent was paid overtime on this claim.
Court records indicate no judicial activity for the entire month of October for the assigned judge on this case.
Respondent testified that he was paid a little over
$13.44 an hour regular pay. In fact, Respondent was paid $19.70 for each hour of overtime he submitted.
Respondent did not submit any credible evidence to support his contention that he did not fill out the overtime court appearances. Respondent only stated that he did not do it and someone else must have completed the forms. Respondent acknowledged he knew how much his regular paycheck was supposed to be, without overtime, and that each of the checks in question were of differing amounts, but that he did not think the overtime pay received was excessive. Respondent's testimony is not credible.
The evidence is clear and convincing that Respondent knowingly appropriated money of another (City of Cocoa) to his own use.
The evidence is clear and convincing that Respondent did falsify official records (overtime forms) with corrupt intent to obtain a benefit for himself, during the relevant
time-period.
CONCLUSIONS OF LAW
The Division of Administrative Hearings had jurisdiction over the subject matter and parties in this proceeding pursuant to Sections 120.569, 120.57(1) and 120.60, Florida Statutes (2003).
Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085 through 943.255, Florida Statutes (2000), and is authorized to discipline those licensed thereunder who violate the law.
Revocation of license proceedings are penal in nature, State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v.
Department of Professional Regulation, Division of Real Estate,
592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of
Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Heifetz v. Department of Business Regulation, Division of
Alcoholic Beverages and Tobacco, 475 So. 2d 1277 (Fla. 1st DCA 1985). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 943.13, Florida Statutes (2000), 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.
In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied a license after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are dissimilar to the instant case, the court's definition of moral character is significant.
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.
Id. at 1105. See Florida Board of Bar Examiners v. G. W. L.,
364 So. 2d 454, 458 (Fla. 1978). See also, White v. Beary, 237 So. 2d 263 (Fla. 1st DCA 1970).
The position of law enforcement 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 1985).
Florida Administrative Code Rule 11B-27.0011(4) defines "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement and correctional officers. This was the applicable rule in effect at the time Respondent allegedly committed the violations set forth in the Administrative Complaint. The rule states in relevant portion:
For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), Florida Statutes, a certified officer's failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, is defined as:
The perpetration by an officer of an act that would constitute any felony offense whether criminally prosecuted or not.
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. Section . . . 837.012 . . . , F.S.
Section 943.1395(7), Florida Statutes (2000), provides
that:
Upon a finding by the commission that a certified officer has not maintained good moral character . . . the commission may enter an order imposing . . . penalties [which include revocation, suspension, probation and/or a reprimand].
Florida Administrative Code Rule 11B-27.005 provides, in pertinent part:
The Commission sets forth in paragraph (5)(a)-(d), of this rule, a range of disciplinary guidelines from which disciplinary penalties will 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. . .
When the Commission finds that a certified officer has committed an act which violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:
For the perpetration by the officer of an act that would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a),
F.A.C., but where there is not a violation of section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances include the following:
Violation:
False Statements(832.02, 832.021, 837.05(2),F.S.)
Grand Theft(812.014, F.S.)
Recommended Penalty Range:
Revocation Revocation
The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances, by evidence presented to
. . . an administrative law judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty.
Petitioner has shown by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes (2000), and Florida Administrative Code Rule 11B-27.0011(4)(a) by submitting false court overtime forms and accepting overtime pay for court appearances he either did not make or for excessive time claimed. Respondent's claim that someone else must have submitted the forms and that he was not aware that his paycheck from the City contained excessive overtime payment amounts is not credible.
Respondent has failed to demonstrate that mitigating circumstances exist in this case.
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows:
DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2003.
Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Michael L. Shumate
Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
