STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 05-0136PL

)

TERESA A. CLAY-HARDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on April 12, 2005, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent has failed to maintain "good moral character," as alleged in the Administrative Complaint issued

against her, and, if so, what disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On March 7, 2003, Petitioner issued an Administrative Complaint against Respondent alleging that, "[o]n or about October 11, 2001, [she] did knowingly falsify, or cause another to falsify, an official record or document, to wit: a doctor's excuse, with corrupt intent to obtain a benefit for herself or another or to cause unlawful harm to another." According to the Administrative Complaint, these "actions" were in "violat[ion] [of] the provisions of Section 839.25 or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B-27.0011(4)(a), Florida Administrative Code." Respondent "disput[ed] the allegations of fact in the Administrative Complaint" and requested "a formal hearing pursuant to Section 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings." The matter was referred to DOAH on January 18, 2005, for the assignment of an administrative law judge to conduct the "formal hearing" Respondent had requested.1

The hearing was originally scheduled for March 22, 2005, but, at Petitioner's request, was rescheduled for April 12, 2005. Petitioner and Respondent were provided with written notice of the rescheduled hearing in accordance with Section

120.569(2)(b), Florida Statutes. The notice was in the form of an Order Granting Continuance and Re-Scheduling Hearing by Video Teleconference mailed March 23, 2005, to Petitioner's counsel of record and to Respondent.

Petitioner appeared at the hearing, which was held as scheduled on April 12, 2005, through its counsel of record. Respondent, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

At the outset of the hearing, the undersigned granted a motion Petitioner had filed April 7, 2005, requesting that the Administrative Complaint be amended by "substitut[ing] a reference to Section 838.022[(1)](a), Florida Statutes, in lieu of the reference to Section 839.25, Florida Statutes."

At the hearing, Petitioner presented the testimony of three witnesses: Jennifer Bateman, Sherry Pendlebury, and Marilyn Henderson. In addition, it offered into evidence three exhibits (Petitioner's Exhibits 1 through 3). All three exhibits were admitted.

At the close of the taking of evidence, the undersigned established a deadline (ten days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on May 10, 2005

Petitioner filed its Proposed Recommended Order on May 23, 2005. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. It is undisputed that, as alleged in numbered paragraph

   
   

   1 of the Administrative Complaint, "Respondent was certified by the Criminal Justice Standards and Training Commission on February 12, 1998, and was issued Correctional Certificate Number 178264."

2. At all times material to the instant case, Respondent was employed as a correctional officer at the Broward Correctional Institution (BCI), a correctional facility operated by the Florida Department of Corrections (DOC). While on "full duty" as a correctional officer at BCI, Respondent was "responsible for [the] care, custody, and control of inmates" at the facility. She was not, however, on "full duty," the entire time she was at BCI. In the fall of 2001, while recovering from an eye injury, she was placed on "light duty" and assigned to the BCI mail room, where she did not have any supervisory responsibility over inmates. This "light duty" assignment was

   less demanding and had a more desirable work schedule compared to her normal "full duty" assignment.

3. At all times material to the instant case, Jennifer Bateman was the environmental health and safety sergeant at BCI "responsible for all Work[ers'] Comp cases" at the facility.

4. On or about September 24, 2001, Respondent reported to Sergeant Bateman that, earlier that month, while working in BCI's main kitchen (carrying out her duties as the facility's "main kitchen officer"), she had suffered an injury to her right eye.

5. After having been told about the incident, Sergeant Bateman filled out and submitted a "first report of injury" form. She also made arrangements for Respondent to see a "Worker[s'] Comp" doctor.

6. Respondent visited the office of Eye Surgery Associates (ESA) to see Kenneth Karp, M.D., on October 1, 2001.

7. The ESA office was "very busy" that day.

   
   

8. After seeing Dr. Karp, Respondent went to the check out counter, where Sherry Pendlebury, an ESA employee, was stationed. Respondent asked Ms. Pendlebury for a note concerning her visit with Dr. Karp that day that Respondent could give to her supervisor at work.

9. Ms. Pendlebury "called back and asked for [and received] permission" to give Respondent the "work note" Respondent had requested.

10. After receiving "permission" to write such a note for Respondent, Ms. Pendlebury asked Respondent what Dr. Karp had told her about "return[ing] to work" and whether "there [were] any stipulations." Respondent replied that, "other than light duty, there was nothing and that she could return to work tomorrow."

11. Ms. Pendlebury then wrote the following note on ESA letterhead and signed Dr. Karp's name on the note (First Note) :

    CERTIFICATE

    
    

    FOR RETURN TO SCHOOL OR WORK

    
    

    Teresa Harden has been under my care from 9- 22-01 to open and is able to return to work on 10-2-01.

    
    

    Limitations/Remarks: Lite Duty

    
    

12. The First Note was sent by facsimile transmission by "a Ms. Cummings" to Sergeant Bateman on or about October 10, 2001.

13. Sergeant Bateman was suspicious of the First Note's authenticity. She thought that if the note indeed were one "coming from a doctor's office, 'light' would be spelled the right way."

14. Sergeant Bateman therefore contacted ESA to inquire "as to whether or not [Dr. Karp] truly issued that note."

15. In response to her inquiry, Sergeant Bateman was told that Dr. Karp "had not provided [Respondent] that note and that as of 10-02-01 [Respondent] was released to full duty."

16. On October 11, 2001, Sergeant Bateman received a second note about Respondent's condition on ESA letterhead (Second Note). This Second Note, which was undated, read as follows:

    CERTIFICATE

    
    

    FOR RETURN TO SCHOOL OR WORK

    
    

    Teresa Harden has been under my care from 9/22/01 to 10/9/01[2] and is able to return to work on 10/2/01.

    
    

    Limitations/Remarks: full duty, no limitations.[3]

    
    

17. The Second Note, as did the First Note Sergeant Bateman had received, purported to bear the signature of Dr. Karp, but the note was actually written by Dr. Karp's assistant, Sharon Corbin.

18. On October 12, 2001, the matter was referred to Marilyn Henderson, a Senior Prison Inspector assigned to DOC's Fort Lauderdale field office, to conduct an internal investigation.

19. As part of her investigation, Ms. Henderson obtained from BCI the First Note and the Second Note and, in addition, took sworn statements from Sergeant Bateman and Dr. Karp.

20. In his sworn statement, which was taken on November 30, 2001, Dr. Karp stated the following:

    I provided Teresa Harden a certificate to return to work at "full duty, no limitations." I did not write "Lite duty." Furthermore, the signature on the form is not in my own handwriting.

    
    

    Ms. Harden was examined in my office on the following dates only: 9/22/01, 9/24/01, 9/25/01, 9/28/01, 10/1/01, and 10/9/01.[4]

    
    

21. Ms. Henderson concluded as a result of her investigation that Respondent had "provided a false document to Broward Correctional Institution in reference to her return to duty status."

    CONCLUSIONS OF LAW

    
    

22. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

23. At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement or correctional officer in the State of Florida shall "[h]ave a good moral character as determined by a background investigation under

    procedures established by the [Criminal Justice Standards and Training] [C]ommission."

24. At all times material to the instant case, Section 943.1395, Florida Statutes, has authorized Petitioner to revoke the certification of a law enforcement or correctional officer who has failed to maintain "good moral character . . . as required by Section 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties on the certificate holder.

25. Petitioner may take such action only after the certificate holder has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.

    § 120.60(5), Fla. Stat.

    
    

26. An evidentiary hearing must be held if requested by the certificate holder when there are disputed issues of material fact. §§ 120.569(1) and 120.57(1), Fla. Stat.

27. At the hearing, Petitioner bears the burden of proving that the certificate holder engaged in the conduct, and thereby committed the violations, alleged in the charging instrument. It must do so even if, as the instant case, the certificate holder fails to appear at the hearing. See Scott v. Department

    of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The appellant is a registered nurse who challenges an

    administrative order by which her license was suspended after a hearing before the Board of Nursing. The appellant did not appear at the hearing, and did not otherwise respond to the complaint against her. However, the appellant's failure to appear or respond does not relieve the appellee of its obligation to substantiate the charges by presenting sufficient evidence.").5

28. Proof greater than a mere preponderance of the evidence must be presented by Petitioner to meet its burden of proof. Clear and convincing evidence of the certificate holder's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Newberry v. Florida Department of Law Enforcement, 585 So. 2d

    500 (Fla. 3d DCA 1991); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").

29. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which

    the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

30. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegation(s) of lack of "good moral character" made in the charging instrument. Due process prohibits an agency from taking penal action against a certificate holder based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care

    Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

31. Citation in the charging instrument to an incorrect statutory or rule provision is not fatal if the charging instrument otherwise adequately describes the acts establishing the certificate holder's alleged lack of "good moral character." Cf. B. H. v. State, 645 So. 2d 987, 996 (Fla. 1994)("[W]e agree with the district court below that an erroneous reference to a statute in a charging instrument is not fatal to the conviction if the necessary elements of the offense otherwise are properly alleged."); State v. Burnette, 881 So. 2d 693, 695 (Fla. 1st DCA 2004)("An information may withstand an untimely challenge to a technical deficiency . . . where the wrong or no statutory citation is given, but all elements of the crime are properly charged."); Foss v. State, 834 So. 2d 404, 405 (Fla. 5th DCA 2003)("An erroneous reference to a statute in the information is not fatal to a conviction if the information properly pleads the necessary elements of the offense."); Mosely v. State, 688 So. 2d 999, 999-1000 (Fla. 2d DCA 1997)("An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense."); and Danzy v. State, 603 So. 2d 1320, 1322 (Fla. 1st DCA 1992)("When allegations of fact in an information are sufficient to allege all the elements of an offense, such allegations of fact will ordinarily control over an erroneous

    reference to a statute, so that the reference to section 944.40 in the instant case should be treated as a scrivener's error.").

32. 'Moral character' is 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. v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement or correctional officer demonstrates a lack of "good moral character" when he or she engages in "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." Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).

33. Petitioner, which has the ultimate authority to administratively interpret the provisions of Sections 943.13(7) and 943.1395, Florida Statutes, has defined, in Florida Administrative Code Rule 11B-27.0011(4), what constitutes, "[f]or the purposes of [Petitioner'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 required by Section 943.13(7), [Florida Statutes]."

34. Florida Administrative Code Rule 11B-27.0011(4)(a) provides that such a "failure to maintain good moral character" includes, among other things:

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

       
       

35. Section 838.022, Florida Statutes, was created by Chapter 2003-158, Section 5, Laws of Florida, effective October 1, 2003. Since its creation, it has provided, in pertinent part, as follows:

    838.022 Official misconduct.--

    
    

    1. It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to:

       
       

       1. Falsify, or cause another person to falsify, any official record or official document;

          
          

          * * *

          
          

    2. For the purposes of this section:

       
       

       * * *

       
       

       (b) An official record or official document includes only public records.

       
       

    3. Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

    "Public records" are defined in Section 119.011(11), Florida Statutes, as "all documents, papers, letters, maps, books,

    tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency."

36. Section 838.022, Florida Statutes, replaced former Section 839.25, Florida Statutes, which, at all times prior to its repeal effective October 1, 2003, by Chapter 2003-158, Section 7, Laws of Florida, provided as follows:

    839.25 Official misconduct

    
    

    1. "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another:

       knowingly falsifying, or causing another to falsify, any official record or official document.

       
       

    2. "Corrupt" means done with knowledge that act is wrongful and with improper motives.

       
       

    3. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

37. "To be guilty of official misconduct [as proscribed by Florida statute], a public servant must knowingly falsify, or cause another to falsify, an official record or document, acting with corrupt intent, that is, done with knowledge that the act is wrongful and with improper motives, to obtain a benefit for

    himself or herself or another or to cause unlawful harm to another." Aurigemma v. State, 801 So. 2d 982, 985 (Fla. 4th DCA 2001). In other words, "the statute contains a general intent of knowing the act is unlawful but also requires a specific intent that it be done with the intent to cause a benefit to himself or harm to another." Bauer v. State, 609 So. 2d 608, 610 (Fla. 4th DCA 1992).

38. "Direct evidence of [wrongful] intent is often unavailable."6 Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996); see also State v. West, 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("[I]ntent is not usually the subject of direct proof.").

39. Circumstantial evidence, however, may be relied upon to prove the wrongful intent which must be shown to establish a violation of Section 838.022, Florida Statutes. See Bauer, 609 So. 2d at 611 ("[T]he state can also prove specific intent by circumstantial evidence."); see also U.S. v. Britton, 289 F.3d 976, 981 (7th Cir. 2002)("As direct evidence of a defendant's fraudulent intent is typically unavailable, specific intent to defraud may be established by circumstantial evidence and by inferences drawn from examining the scheme itself that demonstrate that the scheme was reasonably calculated to deceive persons of ordinary prudence and comprehension.")(internal quotation marks omitted). For instance, such intent may be

    inferred from the "public servant's" actions. See Swanson v. State, 713 So. 2d 1097, 1101 (Fla. 4th DCA 1998)("Appellant's actions are sufficient to show intent to participate."); State v Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982) ("Actions manifest intent."); and G. K. D. v. State, 391 So. 2d 327, 328-

    29 (Fla. 1st DCA 1980)("Appellant testified that he did not intend to break the window, but the record indicates that he did willfully kick the window, and he may be presumed to have intended the probable consequences of his actions.").

40. In the instant case, Petitioner is seeking to take disciplinary action against Respondent on the ground that Respondent has failed to maintain "good moral character" in that, "[o]n or about October 11, 2001, [she] did knowingly falsify, or cause another to falsify, an official record or document, to wit: a doctor's excuse, with corrupt intent to obtain a benefit for herself or another or to cause unlawful harm to another." Any disciplinary action taken against Respondent must be based on these alleged acts described in the Administrative Complaint and no other conduct (including any verbal misrepresentations Respondent may have made to Sergeant Bateman concerning the circumstances surrounding the injury to her eye or when she was scheduled to see the doctor to receive treatment for her injury). See Jones v. Department of Business and Professional Regulation, 873 So. 2d 1266, 1267 (Fla. 5th DCA

    2004)("This may constitute some other violation, but not the one with which Jones was charged in this administrative hearing.").

41. "[K]nowingly falsify[ing], or caus[ing] another to falsify, an official record or document [such as] a doctor's excuse [submitted to a public employer], with corrupt intent to obtain a benefit for [one]self or another or to cause unlawful harm to another" was in October 2001 (and it remains) an act the perpetration of which constitutes a felony and therefore also a "failure to maintain good moral character," as defined in Florida Administrative Code Rule 11B-27.0011(4)(a).7 Accordingly, if Respondent engaged in this conduct, as Petitioner has alleged, the taking of disciplinary action against her is warranted.

42. The First Note (which Respondent obtained from ESA on October 1, 2001) is the "doctor's excuse" that Petitioner contends was "falsif[ied]." According to the argument advanced by Petitioner in its Proposed Recommended Order (in Proposed Conclusion of Law 9),

    Respondent, while employed as a correctional officer at Broward Correctional Institution, knowingly caused another [Ms. Pendlebury] to falsify a Certificate for Return to School or Work form to reflect that the Respondent was under a medically imposed-restriction concerning her work assignment. The document in question was utilized and relied upon by the Department of Corrections as an official record forming a portion of an employee's worker's compensation injury

    file. The evidence established that the Respondent obtained and submitted this false document for a wrongful and improper motive of obtaining a benefit for herself, in the form of a more desirable work schedule and an assignment that did not require her to supervise inmates.

    
    

    It is Petitioner's position that Respondent "caused"

    
    

    Ms. Pendlebury to "falsify" the First Note by "inform[ing]

    
    

    Ms Pendlebury that [Dr. Karp] had limited [Respondent] to light duty," a representation Petitioner claims (in its Proposed Finding of Fact 18) to be "false."

43. While the record evidence leaves no doubt that Respondent made this representation to Ms. Pendlebury, it does not clearly and convincingly establish that the representation was in fact false or that, when she made the representation, Respondent knew that it was false. Neither Dr. Karp, nor anyone else with personal knowledge as to what he may have determined or told Respondent on October 1, 2001, concerning Respondent's return to work, testified at the final hearing; nor were there offered into evidence to shed light on these matters any medical records of Dr. Karp's shown to fall within any exception (including the "business records" exception) to the hearsay rule. The only evidence suggesting Respondent made any misrepresentation that "caused" Ms. Pendlebury to write the First Note amounts to hearsay evidence that would be inadmissible over objection in a civil proceeding in Florida and

    is therefore insufficient to support a finding of fact that any such misrepresentation was made. § 120.57(1)(c), Fla. Stat.

44. Petitioner having failed to prove by clear and convincing evidence that Respondent engaged in the "official misconduct" alleged in the Administrative Complaint, the Administrative Complaint must be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case.

DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 June, 2005.

ENDNOTES

1 It is not apparent from a review of the record as to why it took so long for the case to be referred to DOAH.

2 Given this representation in the Second Note that Respondent had been under Dr. Karp's care until October 9, 2001, it would appear that the note was written no earlier than that date.

3 The Second Note was offered and received into evidence as Petitioner's Exhibit 1. To the extent it was offered to prove that Respondent was medically able to return to work on

October 2, 2001, at "full duty" status with "no limitations," it is insufficient, standing alone, to support such a finding because, for this purpose, it constitutes hearsay evidence that would be inadmissible over objection in a civil proceeding in Florida. See National Car Rental System, Inc. v. Holland, 269 So. 2d 407, 412-413 (Fla. 4th DCA 1972)("The court allowed the plaintiff to introduce into evidence over defendant's objection a document entitled 'Doctor's Certificate' signed by a Dr. Gist, who did not testify. . . . [I]t is clear that the document was offered as tending to prove the truth of the matter therein asserted, to-wit: that plaintiff was physically qualified on the date of the examination to operate a motor vehicle in interstate commerce. When offered for this purpose the document was hearsay, the basis of defendant's objection. The

question here is whether the document was within the business records exception, (and thus competent evidence to prove the truth of its content) by virtue of the fact that it was a part of the business records of plaintiff's employer. We think not."); and § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

4 This sworn statement given by Dr. Karp (who did not testify at the final hearing) was offered and received into evidence as Petitioner's Exhibit 3. To the extent it was offered to prove the truth of the matters asserted therein, this document constitutes hearsay evidence that would be inadmissible over objection in a civil proceeding in Florida, and it therefore is insufficient, standing alone, to support any findings of fact concerning these matters. See Franklin v. District School Board of Hendry County, 356 So. 2d 931, 932 (Fla. 2d DCA

1978)("[Petitioner] contends that all of the evidence both written and oral upon which the order of expulsion was based was hearsay and, therefore, insufficient to support the school board's action. We agree and reverse. The evidence tending to show petitioner's guilt of the two acts upon which his expulsion was based consisted only of affidavits of the alleged student/victim and the testimony of the school principal and vice principal concerning what this student told them. No witness to the acts concerned testified nor did petitioner admit having committed either of the acts. . . . Clearly, all of the evidence introduced against petitioner constituted hearsay inadmissible over objection in a civil action. Accordingly, we must conclude that while admissible at the expulsion hearing, the hearsay standing alone was insufficient evidence upon which to predicate the order expelling petitioner."); and § 120.57(1)(c), Fla. Stat.

5 In Scott, "[t]he only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action." The court held that "this evidence was not sufficient in itself to support the Board's findings," notwithstanding that that there was no objection to its admission into evidence by the licensee (who, like Respondent in the instant case, was absent from the hearing)"; see also Yost v. Unemployment Appeals Commission, 848 So. 2d 1235, 1238 (Fla. 2d DCA 2003)(unobjected to hearsay evidence insufficient, standing alone, to support a finding of fact); Brown v. International Paper Co., 710 So. 2d 666, 668 (Fla. 2d DCA 1998)(same); Doyle v. Florida Unemployment Appeals Commission, 635 So. 2d 1028, 1032 (Fla. 2d DCA 1994)(same); and Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 809 (Fla. 1st DCA 1986)(same).

6 "Direct evidence [of wrongful intent] is evidence that, if believed, would prove the existence of [wrongful] intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 *3 n.9 (Fla. DOAH February 19, 2003)(Recommended Order).

7 In determining whether an officer's acts constituted a "failure to maintain good moral conduct," as defined in Florida Administrative Code Rule 11B-27.0011(4)(a), the law in effect at the time of the commission of these acts controls. Cf. Downs v. Crosby, 874 So. 2d 648, 651 (Fla. 2d DCA 2004)("[I]t is firmly established law that the statutes in effect at the time of the commission of a crime control as to the offenses for which the

perpetrator can be convicted, as well as the punishments which may be imposed.").

COPIES FURNISHED:

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

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 Teresa A. Clay-Harden

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: 05-000136PL

Orders for Case No: 05-000136PL