STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

KATRINA M. YOUNG, )

)

Respondent. )

Case No. 11-6069PL

)

RECOMMENDED ORDER

An administrative hearing in this case was held by video teleconference on February 14, 2012, between Tallahassee and Sarasota, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grace A. Jaye, Esquire

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

For Respondent: Frederick W. Ford, Esquire

2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the Administrative Complaint are true, and, if so, what disciplinary penalty, if any, should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 22, 2011, the Criminal Justice Standards and Training Commission

(Petitioner) alleged that Katrina M. Young (Respondent) violated sections 837.021, 943.1395(7), and 943.13(7), Florida Statutes (2009),1/ and Florida Administrative Code Rule 11B-27.0011(4)(a) and (c), by corruptly using her position as a certified law enforcement officer to access a state information database for improper purposes in January 2010.

The Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. On November 29, 2011, the Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

On December 6, 2011, the Petitioner filed a Notice of Voluntary Dismissal of Count 2(a) as set forth in the Administrative Complaint, which alleged a violation of section 837.021 and rule 11B-27.0011(4)(a).

Prior to the hearing, the parties filed a Joint Amended Pre- hearing Stipulation containing stipulated facts that have been adopted and incorporated herein.

At the hearing, the Petitioner presented the testimony of six witnesses and had Exhibits A through D admitted into evidence. The Respondent testified on her own behalf, presented

the testimony of one witness, and had Exhibit 2 admitted into evidence.

A Transcript of the hearing was filed on March 1, 2012.

Both parties filed proposed recommended orders pursuant to the deadline established at the conclusion of the hearing.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was certified by the Petitioner as a law enforcement officer, holding certificate 267907.

2. At all times material to this case, the City of Sarasota, Florida, employed the Respondent as a law enforcement officer.

3. On the night of January 4, 2010, the Respondent was on duty, riding in a patrol car driven by her work partner, Officer Coppinger.

4. The patrol car contained a laptop computer that was connected to the Florida Driver and Vehicle identification Database (DAVID), a law enforcement database. The DAVID system is not accessible to the public.

5. At the time of logging into the DAVID system, users are advised by a warning screen that the system is restricted to authorized personnel for appropriate law enforcement purposes. Usage of the system for personal purposes is specifically prohibited. An officer accessing the DAVID system must

   
   

   affirmatively acknowledge an understanding of the usage policy prior to initiating research.

6. On the night of January 4, 2010, Officer Coppinger was logged into the DAVID system. The laptop computer is available to both officers in the patrol car.

7. While on duty, the Respondent received a telephone call from her cousin, "Whizz," who told the Respondent of an alleged threat of arson against the Respondent's family by a man identified as "Terrance Bryant."

8. The Respondent did not report the threat to Officer Coppinger or to any other law enforcement officer or agency. Instead, the Respondent immediately accessed the DAVID system in an effort to identify Terrance Bryant's residential address.

9. The Respondent was sufficiently familiar with Terrance Bryant to use a variety of family names and spellings in the search. The Respondent also used information about Terrance Bryant's girlfriend, with whom the Respondent was also familiar, to the extent that the girlfriend had listed the Respondent as a reference on her own application for employment with the Sarasota Police Department.

10. After extensive research in the DAVID system on January 4, 2010, the Respondent obtained the residential address for Terrance Bryant.

    
    

11. The Respondent and Whizz met on January 5, 2010, at the Respondent's home to handle some household errands. The Petitioner asserts that the Respondent provided Terrance Bryant's residential address to Whizz at that time. The evidence is insufficient to clearly establish how Whizz obtained the address, but, by the time Whizz left the Respondent's home on that date, he possessed Terrance Bryant's residential address.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2011).

13. The Petitioner has the burden of proving the allegation against the Respondent by clear and convincing evidence. Ferris

    v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). The "clear and convincing" standard requires:

    [T]hat 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.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

14. The Administrative Complaint alleged that Respondent violated sections 837.021, 943.1395(7), and 943.13(7) and rule 11B-27.0011(4)(a) and (c). The Petitioner voluntarily dismissed the alleged violation of section 837.021 and rule 11B- 27.0011(4)(a) prior to the hearing.

15. Section 943.13(7) requires that a person employed as a full-time, part-time, or auxiliary law enforcement officer have "good moral character as determined by a background investigation under procedures established by the commission."

16. In relevant part, rule 11B-27.0011(4) provides as follows:

    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:

    
    

    * * *

    
    

    (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

    
    

    * * *

    
    

    2. Misuse of official position, defined by Section 112.313(6), F.S.

    
    

17. In relevant part, section 112.313(6), Florida Statutes, defines "misuse of official position" as follows:

    No public officer, employee of an agency, or local government attorney shall corruptly use

    
    

    or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.

    
    

18. The evidence clearly and convincingly establishes that on January 4, 2010, the Respondent accessed the DAVID system to locate the residential address of a person who allegedly made a threat against her family.

19. The Respondent has denied that she obtained the address from the DAVID system and asserted that she observed a warrant for Mr. Bryant's arrest at police headquarters and thereby obtained the information. The Respondent's testimony lacked credibility and has been rejected.

20. Accessing a restricted law enforcement database for personal use constitutes misuse of the Respondent's official position and a failure to maintain good moral character and is a violation of section 943.13(7).

21. Section 943.1395(7) provides as follows:

    
    

    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.

    
    

22. Rule 11B-27.005(5)(c)3. identifies the applicable penalty for this offense to be suspension of certification for a period not to exceed two years.

23. The Petitioner may deviate from the penalty guidelines by consideration of aggravating and mitigating factors set forth in the rule.

24. The Petitioner has asserted that the Respondent, having obtained the information on January 4, 2010, provided the Bryant address to Whizz on the next day and that the information was subsequently used to identify the location of the Bryant residence where an armed home invasion occurred on February 1, 2010. The Petitioner has suggested that the penalty should therefore be increased to revocation of certification.

25. At the hearing, both the Respondent and Whizz denied that she provided the information to Whizz, and the Respondent

    
    

    testified that Whizz obtained the address by using the Respondent's home computer to access public websites. The Bryant residential address, albeit with a variety of spellings, was available through publicly accessible websites.

26. The evidence fails to clearly establish that the Respondent specifically provided the address to Whizz on January 5, 2010.

27. On February 1, 2010, two armed men who were looking for Mr. Bryant invaded the Bryant residence. One of the armed men, "Robert Fordham," was arrested and jailed. Law enforcement personnel monitored Mr. Fordham's telephone calls during his incarceration.

28. At the hearing, the Petitioner offered testimony from a law enforcement officer that Mr. Fordham, during a monitored telephone call, claimed to have received the Bryant address from Whizz, who supposedly obtained it from the Respondent.

29. During Mr. Fordham's incarceration, Mr. Bryant's wife and Mr. Fordham's girlfriend had a telephone conversation that was also monitored by law enforcement personnel. During the conversation, Mr. Fordham's girlfriend said that Mr. Fordham repeated the claim that he received the Bryant address from Whizz, who supposedly obtained it from the Respondent.

30. The testimony related to the monitored telephone conversations is insufficient to clearly establish that the

Respondent provided the Bryant address to Whizz or that he obtained it from the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending the Respondent's correctional certificate for two years.

DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2012.

ENDNOTE

1/ References to Florida Statutes are to the 2009 version, unless otherwise indicated.

COPIES FURNISHED:

Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110

Palm Beach Gardens, Florida 33410

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

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: 11-006069PL

Orders for Case No: 11-006069PL