DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
vs. )
STEVEN J. CAMPBELL, )
Respondent. )
Case No. 05-2518PL
Pursuant to Notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Michael M. Parrish, held a final hearing in this case via video teleconference between sites in Tallahassee and West Palm Beach, Florida, on October 20, 2005.
For Petitioner: Joseph S. White, Esquire
For Respondent: Harry R. Bishop, Jr., Esquire
The central issues in this case are whether the Respondent is guilty of the violations alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
The Petitioner filed an Administrative Complaint against Respondent on June 14, 2005, and alleged that the Respondent had violated the provisions of Subsection 943.1395(6) and/or (7), Florida Statutes,1 and Florida Administrative Code Rule 11B- 27.0011(4)(a), and that the Respondent failed to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that law enforcement officers in the State of Florida have good moral character. The Respondent filed an Election of Rights form disputing the allegations set forth in the Administrative Complaint and requested an evidentiary hearing.
The case was referred to the Division of Administrative Hearings, which conducted a final hearing on October 20, 2005. The parties filed a prehearing stipulation on October 14, 2005. The prehearing stipulation included a number of stipulated facts. All of the stipulated facts have been taken as established without the need for additional proof at the final hearing. At the final hearing, the Petitioner presented the testimony of seven witnesses, and offered four exhibits, all of
which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of four other witnesses. The Respondent did not offer any exhibits.
A transcript of the final hearing was filed on December 5, 2005. Following extensions of time requested by the Respondent, the final deadline for filing proposed recommended orders was January 25, 2006. On January 25, 2006, both parties filed Proposed Recommended Orders containing proposed Findings of
Fact and Conclusions of Law. The parties' proposals have been carefully considered during the preparation of this Recommended Order.2
The Respondent was certified by the Petitioner as a law enforcement officer on April 1, 1997, and was issued certificate number 170935.
At all times material to the issues raised in the Administrative Complaint, the Respondent was employed by the Martin County Sheriff’s Office as a deputy sheriff.
On June 1, 2004, at approximately 11:30 a.m., the Respondent was on-duty and drove to an address in Martin County to respond to a trespassing complaint. The Respondent met with Jack Moore, the property manager for a parcel of land that included a lake. Mr. Moore complained that trespassers were fishing in the lake. The Respondent and Mr. Moore went to the
area adjacent to the lake in Respondent’s assigned Martin County Sheriff’s Office vehicle, and made contact with Maxwell Boley and Frank Preston, who were fishing in the lake.
The Respondent told Mr. Preston and Mr. Boley that they were trespassing on the property and if they wanted to “leave without handcuffs” they would have to give the Respondent some of their property. Mr. Preston understood the Respondent to mean that, if he and Mr. Boley did not give the Respondent some of their fishing equipment, they would be arrested and be taken to jail. Mr. Preston readily turned over his rod and reel. He estimated that it was valued at $50 to $60 dollars.
Mr. Boley was hesitant to turn over his fishing equipment because it was more valuable than Mr. Preston’s.
Mr. Boley estimated that his two rods and reels were worth $250 dollars each. The Respondent told Mr. Boley that he was “stupid” because giving up his fishing gear was a lot better than going to jail. The Respondent told Mr. Boley that, if he were arrested, his fines and court costs would likely exceed
$1,000 dollars and Mr. Boley would have to serve a term of probation. The Respondent told Mr. Boley that he would be “better off” to simply give the Respondent half of his fishing gear and “be done with it.”
When Mr. Boley still hesitated to comply, the Respondent told Mr. Boley he was going to jail, to give his car
keys to his friend (Mr. Preston), and to turn around. The Respondent then reached for a set of handcuffs. When it became apparent to Mr. Boley that the Respondent meant to make good on his threat, Mr. Boley relented and gave the Respondent one of his rods and reels.
Subsequent to the contact with the Respondent and
Mr. Moore, Mr. Boley and Mr. Preston turned over a total of two fishing rods and reels. After both Mr. Boley and Mr. Preston turned over their fishing equipment to the Respondent, the Respondent did not arrest or charge either of them with an offense and permitted them to leave.
A short time after meeting with Mr. Boley and
Mr. Preston, the Respondent and Mr. Moore made contact with Melvin Oliver and Joseph Crawford. Mr. Oliver and Mr. Crawford were also fishing at the same lake. The Respondent told
Mr. Oliver and Mr. Crawford that they were trespassing on the property. Mr. Oliver told the Respondent that he, Oliver, would take his stuff, leave, and never come back. The Respondent then suggested that perhaps Mr. Oliver could “work something out” with Mr. Moore in exchange for not being arrested. The Respondent stated that Mr. Moore wanted to “press charges.”
The Respondent and Mr. Moore discussed, in Mr. Oliver’s presence, the comparative costs to Mr. Oliver if he were arrested in contrast to the value of his fishing equipment.
When Mr. Oliver rejected the idea of such a trade, the Respondent persisted with the proposal of Mr. Oliver and
Mr. Crawford giving up their property to avoid going to jail. While the Respondent continued to discuss the matter with Mr. Oliver and Mr. Crawford, Mr. Moore walked over to
Mr. Oliver’s boat and retrieved the trolling motor and fishing poles from the boat. Seeing this, Mr. Oliver verbally protested and repeatedly pleaded with the Respondent not to take his property and to simply allow himself and Mr. Crawford to leave. Mr. Moore and the Respondent did not return the property and instead loaded the motor and the fishing poles into the Respondent’s patrol car. The Respondent then told Mr. Oliver never to return to the lake. Once the fishing gear was loaded in the patrol car, the Respondent and Mr. Moore got into the Respondent's patrol car and drove away. The Respondent did not arrest or charge Mr. Oliver or Mr. Crawford with an offense.
Instead, he permitted them to leave.
As a result of the contact with the Respondent and Mr. Moore, Mr. Oliver and Mr. Crawford turned over a total of four fishing rods and reels and one electric trolling motor. Three of these fishing rods and reels as well as the trolling motor belonged to Mr. Oliver. One fishing rod and reel belonged to Mr. Crawford.
After returning Mr. Moore back to his residence, the Respondent set aside one fishing rod and reel and stated that he was keeping it for himself. The Respondent said he had been working a great deal of late and had not had the time to go and purchase a rod and reel. Although the Respondent had initially kept only one fishing rod and reel, Mr. Moore told him to take some more because he (Moore) had plenty. The Respondent agreed and took two more of the fishing rods and reels, remarking that he would give them to his buddies. The Respondent then left Mr. Moore at his residence and drove away. Of the total of six fishing rods and reels and one electric trolling motor turned over by the four fishermen on June 1, 2004, three of the fishing rods and reels were retained in the Respondent’s Martin County Sheriff’s Office vehicle, and Mr. Moore retained the other three fishing rods and reels and the electric trolling motor.
Later, on the evening of June 1, 2004, Mr. Boley encountered a Palm Beach County deputy sheriff at a convenience store. Mr. Boley told the deputy about the incident with the Respondent earlier in the day and asked the deputy if it was “right." Based on his conversation with the Palm Beach County deputy, Mr. Boley reported the incident with the Respondent to the Martin County Sheriff’s Office the following day.
On June 2, 2004, the Respondent’s supervisor, Lieutenant Glenn Zirkle, contacted the Respondent and instructed
him to bring the fishing equipment to Lieutenant Zirkle’s office at the Martin County Sheriff’s Office. In response to Lieutenant Zirkle’s question to the Respondent as to what had occurred, the Respondent told Lieutenant Zirkle that in lieu of arresting the trespassing fishermen, their fishing rods had been taken by the property owner. The Respondent told Lieutenant Zirkle that he had merely “stood by.” The Respondent also told Lieutenant Zirkle that he would go to Mr. Moore’s residence and retrieve the fishing equipment. The Respondent did not inform Lieutenant Zirkle that the Respondent had retained some of the fishing equipment himself.
In response to Lieutenant Zirkle’s order, the Respondent went back to Mr. Moore’s residence and retrieved the other three fishing rods and reels and the electric trolling motor. The Respondent then delivered the six fishing rods and reels and the electric trolling motor to Lieutenant Zirkle’s office at the Martin County Sheriff’s Office on June 2, 2004.
Approximately one week after his encounter with the Respondent and Mr. Moore, Mr. Oliver filed a complaint with the Martin County Sheriff’s Office.
On August 26, 2004, the Respondent gave a sworn statement to Detective Gary Bach of the Martin County Sheriff’s Office concerning an internal investigation into complaints filed against the Respondent by Mr. Oliver and Mr. Boley
concerning the fishing equipment. In his statement, the Respondent denied initiating any “deals” with the trespassing fishermen and stated that any arrangements regarding the fishermen giving up their property were between the fishermen and Mr. Moore.
The Respondent also stated in his sworn statement that although he was reluctant to keep any of the fishermen’s property, Mr. Moore persuaded the Respondent to accept three of the rods and reels. The Respondent indicated that he relented and accepted the additional fishing gear from Mr. Moore in an effort to be “polite” to Mr. Moore.
The Respondent said in his sworn statement that he took the three rods and reels home in his patrol car. The following day, he loaded them into the bed of Deputy Shawn Green’s personal pickup truck. The Respondent stated that he did so without Deputy Green’s knowledge.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) provides that every law
enforcement officer shall: “Have a good moral character as determined by a background investigation under procedures established by the commission.”
Subsection 943.1395(7), Florida Statutes, authorizes the Commission to specify by rule the definition of “good moral character” for purposes of implementing the penalties the Commission may levy against an officer for violating the “good moral character” clause contained in Section 943.13(7), Florida Statutes, after the officer is certified. Subsections 943.1395(6) and (7), Florida Statutes, provide that:
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)
The commission shall cause to be investigated any ground for revocation from the employing agency pursuant to s. 943.139 or from the Governor, and the commission may investigate verifiable complaints. Any investigation initiated by the commission pursuant to this section must be completed within 6 months after receipt of the completed report of the disciplinary or internal affairs investigation from the employing agency or Governor's office. A verifiable complaint shall be completed within 1 year after receipt of the complaint. An investigation shall be considered completed upon a finding by a probable cause panel of the commission. These time periods shall be tolled during the appeal of a termination or other disciplinary action through the administrative or judicial process or during
the period of any criminal prosecution of the officer.
* * *
(c) When an officer's certification is revoked in any discipline, his or her certification in any other discipline shall simultaneously be revoked.
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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
In Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), the court described the term "moral character" as follows:
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.
In Florida Board of Bar Examiners Re: G.W.L., 364 So.
2d 454 (Fla. 1978), the Florida Supreme Court stated:
In our view a finding of a lack of “good moral character” should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of 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.
See also White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).
Florida Administrative Code Rule 11B-27.0011(4) provides a definition of “good moral character” for purposes of implementation of disciplinary action upon Florida law enforcement officers. The Rule states in pertinent part:
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 in Section 943.13(7), F.S., is defined as:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
Subsection 838.016(1), Florida Statutes, provides in relevant part that:
It is unlawful for any . . . public servant
. . . corruptly to request, solicit, accept, or agree to accept, any pecuniary or other
benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission . . . the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
Violation of Subsection 838.016(1), Florida Statutes, is a felony of the second degree.
There is clear and convincing evidence in this case that the Respondent violated Subsection 838.016(1), Florida Statutes. Specifically, the evidence shows that the Respondent, a deputy sheriff, did corruptly request and accept personal property from four citizens in exchange for not arresting those citizens. Refraining from making an arrest is a matter within the official discretion of a law enforcement officer, or was represented by the Respondent to the citizens as being within his discretion. The Respondent told both groups of trespassing fishermen that they could secure their freedom only through giving up their property to the Respondent and to Mr. Moore.
Subsection 837.02(1), Florida Statutes, provides in pertinent part that:
. . . 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. . . .
There is clear and convincing evidence that the Respondent knowingly made a false statement during his internal affairs interview of August 26, 2004, by denying that he initiated any "deals" with the trespassing fishermen and by stating that any arrangements regarding the fishermen giving up their property were between the fishermen and Mr. Moore. The Respondent was under oath when he gave his interview. The issues at hand in the internal inquiry at the time of the interview concerned the Martin County Sheriff’s Office investigation into the complaints filed against the Respondent by Mr. Oliver and Mr. Boley concerning his taking of their fishing equipment. Therefore, the false statements provided by the Respondent during his interview concerned a material matter in the inquiry. Finally, a police internal investigative interview is an official proceeding, for purposes of the application of Section 837.02, Florida Statutes. Melendres v. State, 739 So. 2d 1237 (Fla. 3d DCA 1999).
Commission of the felonies of unlawful compensation for official behavior and perjury in an official proceeding constitute departures from good moral character as the term is defined in Florida Administrative Code Rule 11B-27.0011(4)(a). Florida Administrative Code Rule 11B-27.005(5)(a) provides that the guideline penalty for such misconduct is a penalty range from suspension of certification to revocation.
Given the severity of the misconduct in this case, the appropriate penalty is revocation of certification. The Respondent misused his powers of arrest as an officer to corruptly extort citizens to surrender their personal property. His misconduct represents a particularly egregious abuse of authority, committed for personal gain. This misconduct was compounded when the Respondent made false statements under oath when asked about his misconduct.
The position of law enforcement officer is one of great public trust. The Respondent has demonstrated that he is unworthy of a position of public trust and confidence. 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 1989).
Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Respondent be found guilty of two violations of Subsection 943.13(7), Florida Statutes, and that Respondent’s certification be revoked.
DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2006.
1/ Unless otherwise noted, all references to the Florida Statutes are to the current version of the Florida Statutes.
2/ The proposed findings of fact and proposed conclusions of law in the Petitioner's proposed recommended order are to a large extent consistent with the findings and conclusions reached by the Administrative Law Judge. Such being the case, substantial portions of the Petitioner's proposed findings and conclusions have been incorporated into the text of this Recommended Order.
Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Harry R. Bishop, Jr., Esquire Florida Police Benevolent
Association, Inc.
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
