STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 04-2626PL

)

WALTER BATTLES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Notice was provided and on October 8, 2004, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57, Florida Statutes (2004). The hearing was held in the Baker County Courthouse,

339 East Macclenny Avenue, Macclenny, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Walter Battles, pro se

172 West McIver Avenue Macclenny, Florida 32063

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with his Correctional Certificate?

PRELIMINARY STATEMENT

On June 18, 2004, by an Administrative Complaint in Case No. 20591, Petitioner accused Respondent of unlawfully making a false statement, which he did not believe to be true, under oath or in writing. This misconduct is alleged to have occurred on two separate occasions August 9, 2003, and September 9, 2003, a written statement on the former date and a statement under oath on the latter date. It is further alleged that these acts violated the provisions of Sections 837.02(1) and 837.06, Florida Statutes (2003), and Section

943.1395(6) and (7), Florida Statutes (2003), as well as Florida Administrative Code Rule

11B-27.0011(4)(a) and (b). Respondent is also alleged to have failed to comply with requirements set forth in Section 943.13(7), Florida Statutes (2003).

Respondent disputed the allegations in the Administrative Complaint pertaining to his having allegedly made false statements and any related violation of statute or rule. He made known his position in an Election of Rights document requesting a formal hearing to dispute the underlying facts, pursuant to Section 120.57(1), Florida Statutes (2003). That

form had attached a separate explanation of his choice. The Election of Rights document and attachment were received by Petitioner on June 21, 2004. In stating his position, in writing, Respondent did not dispute that he was certified by the Criminal Justice Standards and Training Commission on April 1, 1986, and was issued Correctional Certificate No.

74816.

Following receipt of the Election of Rights with attachment, Petitioner forwarded the case to the Division of Administrative Hearings (the Division) for assignment of an administrative law judge to conduct a formal hearing. That request was received by the Division on July 22, 2004. After assigning an administrative law judge, the hearing was conducted on the date described.

At hearing, Petitioner presented Senior Prison Inspector Raleigh Sistrunk, Corrections Officer Lisa Thornton, Corrections Officer Patricia Jennings, Corrections Officer Dennie Ledford, Corrections Officer Shillene Koessler, Corrections Officer

S. Darrin Taylor, and Corrections Sergeant Michael Boykin as its witnesses. Petitioner's Exhibit No. 1 was admitted. Respondent elected not to testify, did not offer witnesses, and did not offer tangible evidence in his defense.

A hearing Transcript was filed on October 25, 2004. The parties did not avail themselves of the opportunity to file proposed findings of facts and orders post-hearing.

§ 120.57(1)(b), Fla. Stat. (2004).

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on April 1, 1986, and was issued Correctional Certificate No. 74816.

2. At all times relevant to this inquiry, Respondent has been employed as a Corrections Sergeant at Baker Correctional Institution, a facility within the Florida Department of Corrections.

3. Sometime in August 2003, a retirement party was held for Corrections Sergeant Deese. A number of corrections officers who worked at Baker Correctional Institution attended that party. Corrections Officer Lisa Thornton and Corrections Sergeant Michael Boykin were in attendance. Corrections Officer Patricia Jennings was also at the retirement party. Respondent was not in attendance at the party.

4. On August 20, 2003, after the retirement party, Respondent engaged in a conversation at Baker Correctional Institution with Corrections Officer Jennings concerning the retirement party. Respondent made comments to Corrections Officer Jennings about Corrections Officer Thornton and

   Corrections Sergeant Boykin, concerning Thornton and Boykin and their conduct at the retirement party. Respondent told Corrections Officer Jennings on August 20, 2003, that he had received information about Thornton and Boykin from another source and he believed that information to be true and did not see any reason why he, the Respondent, should not say anything about it. In particular, Respondent told Corrections Officer Jennings he had heard that Thornton and Boykin, at the time of the Deese party, were in a room with the door locked to the room and that Boykin and Thornton were having "some type of a sexual relationship."

5. Following the retirement party for Sergeant Deese, Respondent spoke to Corrections Officer Dennie Ledford while they were at Baker Correctional Institution. Respondent asked Ledford if she had gone to the party for Sergeant Deese. Ledford replied that she had not. Respondent then told Ledford that he, along with several others, were outside of the window of the Deese home and saw Corrections Officer Thornton and five men silhouetted in the window and she was giving them oral sex.

6. At a time after the retirement party for Sergeant Deese, Respondent spoke to Corrections Officer Shillene Koessler. That conversation took place at the Baker Correctional Institution. Respondent walked up to Koessler

   and said "Officer Thornton is a whore." He then said "You know she slept with five guys that night of the party." This is taken to mean at the retirement party for Sergeant Deese.

7. Corrections Sergeant Boykin had heard from other corrections officers at Baker Correctional Institution that Respondent had been talking about Boykin and Corrections Officer Thornton and what allegedly transpired at the party. Again, this is taken to mean at the Deese retirement party. As a consequence, on August 9, 2003, Corrections Sergeant Boykin approached Respondent and told Respondent that he didn't appreciate it (meaning remarks attributable to Respondent about Boykin and Thornton at the Deese party), and he wanted Respondent to stop making these remarks. In reply

   Respondent said, "I'll tell it how I want to tell and there is nothing you can do about it." In context, these remarks attributable to Respondent are found to relate to the circumstances at the Deese retirement party that Respondent claims took place between Corrections Officer Thornton and Corrections Sergeant Boykin.

8. None of Respondent's comments about sexual impropriety by Corrections Officer Thornton or Sergeant Boykin are accepted as true on this record.

9. Corrections Officer Thornton made a complaint to her employer, the Department of Corrections, about what she

   perceived to be ongoing problems with Respondent. One of her complaints concerned Respondent's spreading rumors that Thornton had oral sex with five officers at the Deese retirement party.

10. The Department of Corrections assigned Senior Inspector Raleigh Sistrunk to investigate the complaint by Corrections Officer Thornton directed to Respondent. Inspector Sistrunk was assigned the case on August 20, 2003,

    as part of a internal affairs investigation. Beyond that date Inspector Sistrunk interviewed Respondent after placing him under oath.

11. In the interview, on the subject of Corrections Officer Thornton and her conduct at the Deese party, Respondent denied making any derogatory or negative statements about Corrections Officer Thornton concerning the alleged incident.

12. In the interview conducted by Inspector Sistrunk, he asked Respondent if Respondent had made any statements to Correction's staff members, to the effect that Corrections Officer Thornton gave five officers oral sex at Sergeant Deese's retirement party. In response, the Respondent tried to divert the question and denied being at the party. Inspector Sistrunk redirected the question and advised the Respondent that he was not asking about Respondent's

    attendance at the retirement party, instead Inspector Sistrunk was asking if Respondent made any statements to other staff members at Baker Correctional Institution, to the effect that Corrections Officer Thornton gave five officers oral sex at Sergeant Deese's retirement party. In reply, Respondent said, "No." To further clarify, Inspector Sistrunk asked Respondent if Respondent "Made anything close to the statement referring to Officer Thornton having sex with officers at Officer Deese's retirement." To this question Respondent replied, "No, I didn't."

13. In the interview with Respondent, Inspector Sistrunk asked Respondent if he had referred to Corrections Officer Thornton as a "whore." The answer by Respondent was "No, I don't care what she is." In relation to the question concerning Respondent having ever referred to Corrections Officer Thornton as a whore, the question was asked again if Respondent had ever made that statement. In reply to Inspector Sistrunk, Respondent said, "No, I haven't."

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2004).

15. By this action, Petitioner seeks to discipline Respondent concerning his Correctional Certificate. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's Certificate. The nature of that proof must be by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), and Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996).

16. Concerning the factual allegations in this case the Administrative Complaint at paragraph 2 states:

    1. On or about September 9, 2003, the Respondent, Walter Battles, did unlawfully make a false statement, which he or she did not believe to be true, under oath administered by Senior Inspector Raleigh Sistrunk, in an official proceeding, to wit: an internal affairs investigation, in regard to a material matter.

       
       

    2. On or about August 9, 2003, the Respondent, Walter Battles, did unlawfully and knowingly make a false statement in writing with the intent to mislead DOC officials, a public servant, in the performance of their official duty.

       
       

17. Among the grounds for discipline referred to in the Administrative Complaint is Section 943.1395(6), Florida Statutes (2003), which states in pertinent part:

    The commission shall revoke the certification of any officer who is not in compliance with the provisions of s.

    943.13(4) . . . .

    
    

18. Section 913.13(4), Florida Statutes (2003), states in pertinent part:

    Officers' minimum qualifications for

    employment or appointment. - . . .

    (4) Not have been convicted of any felony or a misdemeanor involving perjury or a false statement . . . . Any person who, after

    July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding the suspension of sentence or withholding of adjudication.

    Notwithstanding the subsection, any person who has plead nolo contendere to a misdemeanor involving a false statement, prior to December 1, 1985, and has had such records sealed or expunged shall not be deemed ineligible for employment or appointment as a officer

    
    

19. More specifically, the Administrative Complaint concerning the subject of perjury refers to Section 837.02(1), Florida Statutes (2003), which states in pertinent part:

    Perjury in official proceedings. -

    (1) Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.02, s. 775.03, or s. 775.0084.

    
    

20. The Administrative Complaint makes further reference to Section 837.06, Florida Statutes (2003), which says in pertinent part:

    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.

    
    

21. It has not been proven that Respondent in any court of law was convicted of perjury, or of making a false official statement in writing, pleaded guilty or nolo contendere to such offenses under Sections 837.02(1) and/or 837.06, Florida Statutes (2003). Therefore, it has not been shown that Respondent is subject to revocation of his Certificate as envisioned in Section 943.1395(6), Florida Statutes (2003).

22. In the alternative, Respondent is being prosecuted pursuant to Section 943.1395(7), Florida Statutes (2003), which states:

    (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 conditions, 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.

    
    

23. A rule referred to in the Administrative Complaint which deals with the maintenance of good moral character is Florida Administrative Code Rule 11B-27.0011(4)(a), which states:

    For the purposes of the criminal justice standards and training 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 required by Section 943.13(7), F.S., is defined as:

    1. The perpetration by an officer of any act that would constitute any felony offense, whether criminally prosecuted or not.

    2. The perpetration by an officer of an act that would constitute any of the following misdemeanors or criminal offenses whether criminally persecuted or not: . .

       . Section 837.06, F.S.

       
       

24. Section 943.13(7), Florida Statutes (2003), mentioned in the Administrative Complaint, refers to the need for an officer to have a "good moral character as determined by a background investigation under procedures established by the commission."

25. Although there was no showing that Respondent has been criminally prosecuted for the statement which he gave to Inspector Raleigh Sistrunk under oath, as constituting perjury, clear and convincing evidence was presented to prove

    that Respondent by his remarks in the interview made a false statement under oath. Upon this record, the statement given would lead one to conclude that he understood the statement was not true concerning a material matter in the investigation, and by those acts met the definition of perjury as set forth in Section 837.02(1), Florida Statutes (2003).

    This conduct subjects his Correctional Certificate to discipline for violating Section 943.1395(7), Florida Statutes (2003), premised upon a violation of Florida Administrative Code Rule 11B-27.0011(4)(a).

26. By contrast, there has been no showing that Respondent made a false statement in writing, with the intent to mislead a public servant in the performance of his or her official duty as described in Section 837.06, Florida Statutes (2003. Therefore, Respondent did not violate Florida Administrative Code Rule 11B-27.0011(4)(b). That rule provision is the basis for an alleged violation of Section 943.1395(7), Florida Statutes (2003), when considering Section 837.06, Florida Statutes (2003).

27. Disciplinary guidelines are established in Florida Administrative Code Rule 11B-27.005, pertaining to the violations described. With those guidelines in mind, a recommendation for punishment is offered based upon the facts

found and conclusions of law reached, absent a prior disciplinary history.

RECOMMENDATION

Upon consideration of facts found and Conclusions of Law reached, it is

RECOMMENDED that a final order be entered finding the violations of the statutes and rule and suspending the Respondent's Correctional Certificate for 60 days.

DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

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

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2004.

COPIES FURNISHED:

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

Walter Battles

172 West McIver Avenue Macclenney, Florida 32063

Michael Crews, Program Director Division of Criminal Justice

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

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: 04-002626PL

Orders for Case No: 04-002626PL