STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

WILLIAM S. DESPAIN, )

)

Respondent. )

Case No. 05-4471PL

)

RECOMMENDED ORDER

Notice was provided and on February 28, 2006, at 9:00 a.m., Central Time (10:00 a.m. Eastern Time), a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2005). The hearing was held by video-teleconference between sites in Tallahassee and Pensacola, Florida. Charles C. Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: R. John Westberry, Esquire

Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504

STATEMENT OF THE ISSUE

Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?

PRELIMINARY STATEMENT

On March 15, 2005, an Administrative Complaint was executed and served on Respondent. The Administrative Complaint was based upon a case brought by the State of Florida, Criminal Justice Standards and Training Commission as Petitioner, Case No. 21568. The Administrative Complaint referred to violations of law described earlier, upon factual allegations that Respondent:

2(a) On or about June 14, 2004, the Respondent, William S. Despain, did then make a false statement during the employment application process concerning material matters to officials of the Department of Corrections, regarding academic claims, with the intent to mislead officials of the Department of Corrections.

1. On or about June 14, 2004, the Respondent, William S. Despain, did unlawfully falsely claim, either orally or in writing, to possess an academic degree, as defined in F.S. 435.11(1)(a), or the title associated with said degree.

2. On or about January 31, 1999, the Respondent, William S. Despain, did unlawfully falsely claim, either orally or in writing, to possess an academic degree, as defined in F.S. 435.11(1)(a), or the title associated with said degree.

Respondent was provided the choice, among other options, of disputing the allegations in the Administrative Complaint, thereby requesting a formal hearing in accordance with Section 120.57(1), Florida Statutes (2005). He chose the formal hearing option. In particular, he did not dispute the allegations in paragraph 1 to the Administrative Complaint, but did dispute paragraphs 2 through 4 in the Administrative Complaint, as constituting material facts about which there was no agreement between the parties.

Upon receipt of the election to proceed to the formal hearing, the case was forwarded to the Division of Administrative Hearings (DOAH) where it was assigned as DOAH Case No. 05-2045PL. The parties reached a settlement which needed to be approved by the Agency and moved to relinquish jurisdiction for those purposes. § 120.57(4), Fla. Stat. (2005). On August 1, 2005, an order was entered closing the case before DOAH, with leave to reopen the file should the settlement not be approved in relation to DOAH Case No. 05- 2045PL.

The case was not resolved and on December 9, 2005, Petitioner moved to reopen the case and asked for the assignment of an administrative law judge to conduct proceedings in accordance with Section 120.57(1), Florida Statutes (2005).

That led to the assignment of the case to the present administrative law judge under DOAH Case No. 05-4471PL.

Following the provision of notice the hearing was conducted on the aforementioned date. At hearing Petitioner presented Terry Foskey as its witness. Petitioner's Exhibits numbered A3, A3A, A6 through 9, A11 through 15, A15A and 16 were admitted.

Respondent's Exhibits A1, A2, A4 and A5 were admitted. On March 22, 2006, a hearing transcript was filed.

Proposed findings of fact or orders were offered by the parties as allowed by Section 120.57(1)(b), Florida Statutes (2005), and have been considered in entering the Recommended Order.

FINDINGS OF FACT

Undisputed Facts:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626.

   Additional Facts:

   
   

2. Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to

   the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred.

3. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern

   Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence.

4. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university.

5. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a

   program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security.

6. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?"

7. The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by

   Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job.

8. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A.

9. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he

   had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept

   life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of

   $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information

   about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com.

10. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit.

11. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding consistent with Sections 120.569 and 120.57(1), Florida Statutes (2005).

13. 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)

14. The meaning of clear and convincing evidence is explained in the case In re: Davey, 645 So. 2d 398 (Fla. 1994), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

15. To begin, with reference to the incident on

    
    

    January 31, 1999, there was no proof that Respondent unlawfully, falsely, claimed, either orally or in writing, to possess an academic degree as defined in Section 435.11(1)(a), Florida Statutes (1998), or the title associated with that degree, Petitioner having failed to sufficiently prove the nature of the transcript and diploma referred to in the interoffice memorandum discussed in the facts. As a consequence, no violation of the other provisions of Florida Statutes and the Florida Administrative Code referred to in the Administrative Complaint has been shown in relation to matters upon that date.

16. Respondent did make false statements concerning his employment application pertaining to the June 14, 2004 application for the position as Correctional Probation Officer, as submitted to officials within the Department of Corrections. In particular, this false information related to the M.S. degree Respondent stated that he earned from the University of Southern Mississippi. It is concluded that the nature of this assertion in the application and the other attempts to create the impression that he held the degree, was intended to mislead the officials within the Department of Corrections both orally and in writing. In addition to the written application, his remarks to Mr. Foskey concerning the false transcript, that on its face indicated that it was from the University of Southern Mississippi, when Respondent realized that it was the product of the CustomDegrees.com, not appropriately understood to be affiliated with the University of Southern Mississippi, advanced a false claim concerning Respondent's educational background, in support of his attempt to obtain the position as Correctional Probation Officer.

17. As to violations, the Administrative Complaint refers to a definition within Section 435.11(1)(a), Florida Statutes (2004), which states:

    Penalties.--

    
    

    1. It is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully, knowingly, or intentionally to:

       
       

       1. Fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in any application for voluntary or paid employment a material fact used in making a determination as to such person's qualifications for a position of special trust.

          
          

18. The purpose of Chapter 435, Florida Statutes (2004), is in relation to employee screening where it is stated at Section 435.01:

    435.01 Applicability of this chapter.-- Whenever a background screening for employment or a background security check is required by law for employment, unless otherwise provided by law, the provisions of this chapter shall apply.

    
    

19. Further, Section 435.02(1), Florida Statutes (2004), defines the term employee, where it states: "'Employee' means any person required to be screened pursuant to the provisions of this chapter."

20. Section 435.11(1)(a), Florida Statutes (2004), has no significance in this case. The nature of the falsehood in relation to the claimed degree from the University of Southern Mississippi was not associated to the failure to disclose on the application a material fact that would be used in determining

    his qualifications for a position of special trust as envisioned by the employment screening law, Chapter 435, Florida Statutes (2004). Instead, it pertained to his attempt to establish educational credentials necessary to hold the position of Correctional Probation Officer, a subject unrelated to the enforcement of the provisions within Chapter 435, Florida Statutes (2004).

21. The Administrative Complaint also refers to Section 817.567, Florida Statutes (2004), which states in pertinent part:

    Making false claims of academic degree or title.--

    
    

    1. No person in the state may claim, either orally or in writing, to possess an academic degree, as defined in s. 1005.02, or the title associated with said degree, unless the person has, in fact, been awarded said degree from an institution that is:

       
       

       1. Accredited by a regional or professional accrediting agency recognized by the United States Department of Education or the Commission on Recognition of Postsecondary Accreditation;

          
          

       2. Provided, operated, and supported by a state government or any of its political subdivisions or by the Federal Government;

          
          

       3. A school, institute, college, or university chartered outside the United States, the academic degree from which has been validated by an accrediting agency approved by the United States Department of Education as equivalent to the baccalaureate

          or postbaccalaureate degree conferred by a regionally accredited college or university in the United States;

          
          

       4. Licensed by the Commission for Independent Education pursuant to ss. 1005.01-1005.38 or exempt from licensure pursuant to chapter 1005; or

          
          

       5. A religious seminary, institute, college, or university which offers only educational programs that prepare students for a religious vocation, career, occupation, profession, or lifework, and the nomenclature of whose certificates, diplomas, or degrees clearly identifies the religious character of the educational program.

          
          

          * * *

          
          

          (3)(a) A person who violates the provisions of subsection (1) or subsection (2) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.

          775.083.

          
          

          (b) In addition to any penalty imposed under paragraph (a), a violator shall be subject to any other penalty provided by law, including, but not limited to, suspension or revocation of the violator's license or certification to practice an occupation or profession.

          
          

22. Respondent did claim orally and in writing to possess an academic degree from the University of Southern Mississippi, and the title associated with that degree, when he had not been awarded a degree. The nature of the degree he claimed to possess, that he had no right to assert, was as defined in Section 1005.02(7), Florida Statutes (2004), which states:

    (7) 'Degree' means any educational credential that is generally taken to signify satisfactory completion of the requirements of an undergraduate, graduate, academic, educational, or professional program of study or any honorary credential conferred for meritorious recognition. At the undergraduate level, an institution may not award a degree for a program unless it includes a general education component as established by rule and at least 60 semester hours or 90 quarter hours of study or the equivalent.

    
    

23. Further, the Administrative Complaint cites Section 943.1395(6) Florida Statutes (2004), which states:

    (6) 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).

    
    

24. None of the factual allegations in the Administrative Complaint concern themselves with crimes related to perjury or false statement or with the making of a false affidavit of the type described; therefore, no violation has been proven concerning Section 943.1395(6), Florida Statutes (2004).

25. Alternatively, Respondent is accused of violating Section 943.1395(7), Florida Statutes (2004), 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) . . . .

    
    

26. Section 943.13(7), Florida Statutes (2004), makes it incumbent that Respondent as a correctional officer:

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

    
    

27. The definition of good moral character as adopted by Florida Administrative Code Rule 11B-27.0011(4)(b) and (c), 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 an act that would constitute any of the following misdemeanors or criminal offenses whether criminally persecuted or not: . . . Section 817.567, F.S.

       
       

    2. The perpetration by an officer of acts or conduct that constitute the following offences:

    
    

    * * *

    
    

    6. False statements during the employment application process.

28. No showing was made that Respondent was criminally prosecuted for a violation of Section 817.567, Florida Statutes (2004), but the proof showed that he was involved with a perpetration of an act that would constitute a violation of Section 817.567, Florida Statutes (2004). In addition, he was engaged in the perpetration of an act that constituted the giving of a false statement during the employment application process, all of this in relation to the representations concerning a degree from the University of Southern Mississippi which he had not earned, in an effort to support his application to fill the position of Correctional Probation Officer. Thus, he violated Florida Administrative Code Rule 11B-27.001(4)(b)and (c), and by that violated Section 943.1395(7), Florida Statutes (2004), subjecting Respondent to the penalties set out in that section.

29. To arrive at the appropriate punishment recommended in this case, the disciplinary guidelines found at Florida Administrative Code Rule 11B-27.005 have been utilized. With the guidelines in mind, a recommendation for punishment is offered on the facts and the conclusions of law reached, absent a prior disciplinary history.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days.

DONE AND ENTERED this 12th day of April, 2006, 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 12th day of April, 2006.

COPIES FURNISHED:

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

R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504

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: 05-004471PL

Orders for Case No: 05-004471PL