STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JOE L. ROSS, III, )

)

Respondent. )

Case No. 05-1909PL

)

RECOMMENDED ORDER

Notice was provided and on July 20, 2005, at 10:00 a.m. a formal hearing was held in this case. The hearing location was the City Hall, Commission Room, 109 Southwest Rutledge Street, Madison, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2004). The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with his correctional certificate?

PRELIMINARY STATEMENT

On March 15, 2005, by an Administrative Complaint in Case No. 21483, Petitioner accused Respondent of knowingly falsifying, or causing another to falsify, an official record or document. This violation allegedly took place on or about February 26, 2004. Based upon the alleged misconduct Respondent was accused of violating the provisions of Section 838.022, Florida Statutes, or any lesser included offenses; Section 943.1395(6) and (7), Florida Statutes; and Florida Administrative Code Rule 11B-27.0011(4)(a). Reference was also made to Section 943.13(7), Florida Statutes. It is necessary for Respondent to maintain qualifications pursuant to that provision in relation to good moral character.

Respondent was provided an opportunity to choose among several alternatives in pursuing his rights concerning the Administrative Complaint. He chose to dispute material facts within the Administrative Complaint, leading to a formal hearing in accordance with Section 120.57(1), Florida Statutes.

Specifically, in his election of rights, Respondent disputed those provisions within paragraph two to the Administrative

Complaint that relate to the allegations concerning his conduct on or about February 26, 2004.

On May 24, 2005, the case was forwarded to the Division of Administrative Hearings, requesting the assignment of an administrative law judge to conduct a formal hearing. The case was assigned, notice was provided, and the formal hearing was conducted.

At hearing Petitioner called Amanda Chance as its witness. Petitioner's Exhibits numbered one through eight were admitted.

Petitioner moved to have its request for admissions propounded to Respondent admitted. Rule 1.370, Florida Rules of Civil Procedure. The motion was denied, in that the time for responding to the admissions did not expire until close of business on the hearing date.

No hearing transcript was prepared. No proposed findings of fact or orders were offered by the parties as allowed by Section 120.57(1)(b), Florida Statutes (2004).

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on October 29, 1997, and was issued correctional certificate No. 175702.

2. At times relevant to the inquiry Respondent was employed at the Gadsden Correctional Facility as a Senior Correctional Officer.

3. Corrections Corporation of America (CCA) ran Gadsden Correctional Facility during the period in question.

4. On February 26, 20004, on a medical enrollment worksheet for insurance provided by CCA, Respondent wrote in the name Tamara S. Ross and identified Tamara Ross as his wife. Similarly, on a dental/disability worksheet for insurance executed on the same date, Respondent wrote the name Tamara S. Ross, in a block within the form which was intended for use in identifying the applicant's spouse. In both insurance plans Respondent, by executing the applications, had added Tamara S. Ross to the coverage.

5. When placing his signature on the application forms to add Tamara S. Ross to the coverage he confirmed, consistent with each form, "I am also certifying that all of the information, including dependent information, that I have provided on this form is accurate."

6. At the time the applications were made requesting that Tamara S. Ross be added for medical and dental/disability coverage as Respondent's wife, the person identified as

   Tamara S. Ross was not the wife of Respondent.

   
   

7. At an earlier time she had identified herself as Tamara Moore. In a document found within Respondent's personnel file maintained by his employer CCA, a reference is made to "Tamara" who is described as "my fiancée."

8. On November 11, 2004, Respondent resigned his position as Senior Correctional Officer at the Gadsden Correctional

   Facility.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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).

10. By this action Petitioner seeks to discipline Respondent in his capacity as a Certified Correctional Officer. 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. 1997); and Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996)

11. The Administrative Complaint refers to Section 943.1395(6), Florida Statutes (2003), which states:

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

    943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

12. None of the factual allegations in the Administrative Complaint implicate consideration of Section 943.1395(6), Florida Statutes (2003); therefore, no violation has been proven concerning that law.

13. Alternatively, Respondent is accused of violating Section 943.1395(7), Florida Statutes (2003), which allows the imposition of discipline against the correctional certificate held by the Respondent for the following reason:

    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) . . . .

    
    

14. Section 943.13(7), Florida Statutes (2003), makes it incumbent that Respondent as a correctional officer:

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

    
    

15. The definition of good moral character as adopted by Florida Administrative Code Rule 11B-27.0011(4)(a), states:

    For the purposes of the Criminal Justice Standards 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 as required by Section 943.13(7), F.S., is defined as

    
    

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

16. The offense referred to in the Administrative Complaint involving a consideration of Respondent's moral character is as follows:

    Section 838.022 Official misconduct. -

    1. It is unlawful for a public servant, with corrupt intent to obtain or 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) Any 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. 775.02, s. 775.083, or s. 775.084.

    
    

17. Respondent has not maintained good moral character for reason that he committed acts which would constitute a felony offense pursuant to Section 838.022, Florida Statutes (2003), even though it was not shown that offense was criminally prosecuted.

18. Respondent executed a medical enrollment worksheet and dental/disability worksheet provided by his employer CCA which was false in its representation that Tamara S. Ross, for whom he wished to gain insurance coverage, was his wife. The record created in this application process was an official record.

19. By clear and convincing evidence demonstrating the elements found with Section 838.022, Florida Statutes (2003), Respondent has failed to maintain good moral character as required in Florida Administrative Code Rule 11B-27.0011(4)(a), and in turn this violated Section 943.1395(7), Florida Statutes (2003).

20. Florida Administrative Code Rule 11B-27.005 contains guidelines for the imposition of penalties for the violations found. Recommendation for punishment is made consistent with those guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a Final Order be entered finding violations pertaining to Sections 838.022 and 943.1395(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), while dismissing the part of the case referring to Section 943.1395(6), Florida Statutes (2003), and suspending the correctional certificate held by Respondent for 30 days.

DONE AND ENTERED this 11th day of August, 2005, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2005.

COPIES FURNISHED:

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

Joe L. Ross, III

Michael Crews, Program Director Criminal Justice Standards

and Training Commission 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: 05-001909PL

Orders for Case No: 05-001909PL