STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
Petitioner,
vs.
NATHAN O. GORDON,
Respondent.
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) Case No. 12-2284PL
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted on September 4, 2012, before Todd P. Resavage, an Administrative Law Judge of the Division of Administrative hearings, by video teleconference at sites in West Palm Beach and Tallahassee,
Florida.
APPEARANCES
For Petitioner: Elissa R. Saavedra, Esquire
Florida Department of Law Enforcement Post office Box 1489
Tallahassee, Florida 32302
For Respondent: Richard Mark Weiner, Esquire
Richard M. Weiner, P.A. 7479 Northwest 4th Street Plantation, Florida 33317
STATEMENT OF ISSUES
Whether Respondent, a certified law enforcement officer, committed the various acts of misconduct described in the
Amended Administrative Complaint, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent's certificate.
PRELIMINARY STATEMENT
On or about May 23, 2011, Petitioner, Criminal Justice Standards and Training Commission, issued a Complaint charging Respondent with violations of subsections 943.1395(7) and 943.13(7), Florida Statutes, as well as violations of Florida Administrative Code Rule 11B-27.0011(4)(a).
On or about July 6, 2011, Respondent filed an election of rights and Answer disputing the material facts alleged in the Administrative Complaint and requesting an administrative hearing.
On November 4, 2011, Petitioner filed an Amended Complaint again asserting violations of subsections 943.1395(7) and 943.13(7), Florida Statutes, as well as violations of Florida Administrative Code Rule 11B-27.0011(4)(a). The matter was referred to the Division of Administrative Hearings ("DOAH") on November 14, 2011, and assigned to Administrative Law Judge John
VanLaningham.
The final hearing initially was set for January 25, 2012; however, on January 10, 2012, the parties filed a Notice of Settlement and Motion to Relinquish Jurisdiction. On
January 10, 2012, Administrative Law Judge John G. VanLaningham issued an Order Relinquishing Jurisdiction and Closing File.
On June 27, 2012, Petitioner filed a Motion to Re-Open File and Assignment of Administrative Law Judge advising that the stipulation and settlement agreement had been rejected by the Commission and requesting a formal hearing. Administrative Law Judge John G. VanLaningham was again assigned to the matter and the final hearing was scheduled for September 4, 2012.
On August 15, 2012, Petitioner filed a Motion for Leave to Amend Administrative Complaint and same was granted on
August 23, 2012. On August 29, 2012, this case was transferred to the undersigned for all further proceedings.
The final hearing was held on September 4 through September 7, 2012. Petitioner presented the testimony of Robyn Randall, Regina Cline, Agent Steven Burdelski, Officer Cedrick
Edwards, Adrian Henderson, Hasani Thomas1/, Captain John Mammino, Captain Joshua Lewis, Sergeant Kenneth Thomas, and Detective Jeremy Campbell. Petitioner's Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and N were offered and admitted without objection.
Respondent presented his testimony as well as that of Officer Derrick Jackson, Sergeant Garry Wilson, Officer John Toombs, and Sergeant Travis Walker. Respondent's Exhibit 1 was offered and admitted without objection.
At hearing, Petitioner advised that it was withdrawing paragraphs 2(a) and (c) of the Amended Administrative Complaint.2/ Accordingly, the allegations referenced in paragraphs 2(a) and (c) will not be addressed herein.
The Transcript of the final hearing was filed with DOAH on September 27, 2012. Pursuant to a joint stipulation, the parties were granted an extension to file their Proposed Recommended Orders on or before October 26, 2012. The parties timely filed their Proposed Recommended Orders and both were considered in preparing this Recommended Order.
Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the
alleged misconduct.
FINDINGS OF FACT
Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat.
Respondent was certified by Petitioner as a law enforcement officer on March 12, 2003, and issued certificate number 229917.
Respondent resided in Riviera Beach, Florida, for a portion of his childhood. During this time, he developed a
friendship with Frederick Maurice Dean ("Dean"). He was also acquainted with Hasani Thomas ("Thomas"), although not as closely as with Dean. Respondent and Dean spent time together on a daily basis and their relationship continued as their lives took divergent routes.
After graduating from high school, Respondent attended college out of state and then returned to Riviera Beach and earned his A.S. degree at the local community college. Respondent continued with his studies at Florida Atlantic University.
While working for the City of Riviera Beach in a civilian capacity, Respondent remained personally close with Dean and attempted to help Dean obtain employment.
While enrolled at the local policy academy, on September 3, 2001, Respondent was hired by the Riviera Beach Police Department ("RBPD").
Respondent's initial assignment with RBPD was to the road patrol. The intersection of 33rd Street and Old Dixie Highway, the location of the Worldwide Grocery Store ("Worldwide"), was within his area of patrol.
In 2003, the Drug Enforcement Administration ("DEA"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an operation entitled "Operation Worldwide." The purpose of Operation
Worldwide was to eradicate a gang or group of individuals involved in various crimes including murder, drug trafficking, and robbery. The targets were believed to be congregating around, and conducting their activities, in part, from, Worldwide. As part of the plan, the FBI utilized confidential informants to purchase drugs from the targeted group.
Additionally, Operation Worldwide sought to conduct surveillance by placing video cameras in covert positions. Initially, one camera, which was not visibly apparent, was installed on a pole in a position to observe the activities at Worldwide. This installation proved ineffective, as it was vandalized with spray paint after the second day of operation.
In response, a second video camera was installed in the same capacity at a greater distance from the Worldwide; however, that camera similarly proved ineffective as the location was apparently disclosed or discovered by the criminal subjects.
Operation Worldwide concluded in 2005 when a grand jury issued federal indictments and arrest warrants for multiple targets of the operation. Three particular targets and their respective post-arrest statements are pertinent to the instant action, and are addressed seriatim.
On May 12, 2005, Hasani Thomas, a previously convicted felon, was federally indicated on distributing a Schedule II
controlled substance, and having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessing a firearm in and affecting commerce. A warrant was issued and he was arrested by U.S. Marshals on August 11, 2005.
Post-arrest, Thomas, cooperating with law enforcement, made several allegations concerning Respondent. He provided that Respondent and Dean were close friends. Dean had advised Thomas that he was wanted based on information obtained from Respondent. Thomas also alleged that Respondent had disclosed the location of the surveillance cameras at Worldwide to Thomas.
Dean, Respondent's friend and a previously convicted felon, was federally indicted on two counts of distribution of crack cocaine and a warrant was issued for his arrest on May 12, 2005. Dean was arrested by U.S. Marshals on August 14, 2005.
The day following his arrest, Dean was interviewed by FBI Special Agent Steven Burdelski. Prior to the interview, Dean was informed of why he was being interviewed and the federal charges he was facing. Post-Miranda, Dean admitted to being a seller of drugs, including cocaine, and that he made his living by selling drugs. He further admitted to selling crack cocaine at Worldwide and gave the name of the individual who supplied him with his drugs.
Dean was then told by his interviewer that agents were aware he was friends with Respondent and that they wanted to learn what Dean knew about Respondent and specifically what Dean knew about any criminal activity in which Respondent may be involved.
Dean subsequently provided numerous allegations concerning Respondent. Specifically, Dean contended that Respondent had encountered Dean at the Palm Beach Mall approximately three months earlier and advised Dean that federal law enforcement officers were looking for him, that they were going to give him "a lot of time," and that he needed to lay low.
Dean further advised that Respondent would advise Dean and other drug dealers at Worldwide if law enforcement was planning an operation, the type of vehicles being utilized by law enforcement, and that a camera was observing their activity at Worldwide.
Additionally, Dean advised that on several occasions Respondent had provided drugs to Dean in return for cash.
Based upon the information received, on August 15 and 16, 2005, several controlled recorded phone calls were attempted and completed by and between Dean and Respondent.
During the course of one of the recorded calls, Dean inquired as to whether "his picture" was up at the police
station. Respondent advised Dean that he had not seen his picture and that he had not heard anything specifically about Dean. Dean and Respondent further discussed that law enforcement had "busted" Thomas and that law enforcement was serious. Dean stated that Respondent had warned Dean and that he was laying low.
The conversation turned to the topic of cameras at Worldwide. Dean asked Respondent whether there was a camera installed at Worldwide. Respondent initially responded that he did not know and that the owner of the store, Mike, was doing some rebuilding at the store. Dean then asked again if the camera was still up at the store. Respondent stated, "You know those mother fuckers got everything over there boy." To which Dean replied, "I know bitch people got to be careful over there." Respondent further stated that, "They got everything, they got everything and your momma over there boy."
When asked by Dean if law enforcement had taken down the big camera, Respondent advised that he did not know, but they were "cleaning up the neighborhood."
Finally, Dean requested Respondent to use his connections and determine whether there were pending charges against Dean. Respondent unequivocally advised Dean that he could not do so as he was not President Bush.
Adrian Henderson, a convicted felon, was arrested in 2006 on felony narcotics charges. Henderson, in a federal proffer statement, alleged that Respondent advised individuals at Worldwide concerning the location of the cameras and, upon request, would run Henderson and Dean's name through "the system" to determine if there were outstanding warrants.
Thomas, Dean, and Henderson in subsequent statements made numerous allegations concerning Respondent's assistance, participation, and acquiescence to the drug activities being conducted at Worldwide.3/ Those allegations included, but are not limited to, the following: allowing Thomas to conduct cocaine transactions in Respondent's presence; advising the details of surveillance camera placement; Respondent's encountering Thomas and advising him that U.S. Marshalls had a picture (warrant) concerning Thomas and Dean, but failing to arrest; Respondent's providing Dean crack cocaine and marijuana for cash; failing to arrest individuals close to Worldwide; Respondent's advising when the drug task force was operating in the area; Respondent's advising of the make and model of surveillance vehicles; Respondent's checking for warrants and advising if a warrant existed, but not arresting the individual.
After obtaining the initial 2005 post-arrest statements from Thomas and Dean, FBI Agent Steven Burdelski provided the information concerning Respondent's alleged
involvement to RBPD for an internal investigation. Additionally, the information was reviewed with the United States Attorney's Office.
The United States Attorney's Office determined that it would not proceed with criminal prosecution of Respondent.
Captain John Mammino was involved with the internal affairs investigation of Respondent. In addition to reviewing the initial statements, in 2006, he conducted interviews of Dean, Thomas, Henderson.
In 2009, the Palm Beach County State Attorney's Office formed a public integrity unit. Captain Mammino desired that State Attorney's Office review the case concerning Respondent, and, therefore, conducted another round of interviews with Thomas, Dean, and Henderson. The entirety of the information was provided to the State Attorney's Office, and they also declined to prosecute Respondent.
Thereafter, an investigation was conducted in an effort to corroborate the allegations that Respondent provided warrant information to Dean.
The Florida Crime Information Center ("FCIC") and the National Crime Information Center ("NCIC") databases are used for obtaining criminal history information. FCIC is the central repository for all criminal histories within Florida.
Users in Florida must become trained and certified through the Florida Department of Law Enforcement ("FLDE") instructors. Respondent was certified to access FCIC/NCIC on July 1, 2003.
Warrant information is placed into the FCIC/NCIC database by law enforcement agencies, and such information is not available to the public. The FCIC/NCIC database is not to be used for any non law-enforcement related purpose.
A certified user may access FCIC by logging in with an individual password and user name. A computer database, the Transaction Archive Reporting ("TAR") database, keeps a record of all queries within the FCIC system.
FDLE maintains the TAR system, and same may be searched to produce records of an individual's queries or transactions. The reports generated from such a search are called TAR reports.
A search was conducted of the TAR database for any FCIC queries concerning Dean. A review of the TAR reports generated from the search revealed that Respondent accessed FCIC and manually inputted the first name, middle name, last name, date of birth, sex, and Florida Driver's License number of Dean on three occasions: October 7, 2003, October 17, 2003, and November 30, 2003. These searches would have revealed whether
Dean had any outstanding warrants. Dean had no warrants outstanding on the above-referenced dates.
On June 30, 2010, over five years subsequent to the above-referenced arrests, Respondent participated in a sworn interview with RBPD Internal Affairs. During this interview, Respondent was asked whether he ever ran Dean's name through the system. Respondent initially replied, "No. I never ran Freddie (Dean) through." After being advised, for the first time, of the results of the TAR reports, he stated that he did not remember running Dean's name:
Officer Lewis: We pulled records from the FDLE database. It showed records showing on October 7th, 2003 at 4:03 p.m., that you ran Freddie Dean for warrants through FDLE's database.
Respondent: I ran them or Tina Hall ran them?
Officer Lewis: It actually listed your name.
Respondent: I must have made an arrest on him for possession of marijuana.
Officer Lewis: There was another one ten days later at 9:53 for the same person, Frederick Dean. Do you recall that?
Respondent: No, sir.
Officer Lewis: On November 30th, 2003 at 1:15 p.m. the same ran through the system, Frederick Dean for warrants. Do you remember that?
Respondent: No, sir.
Additionally, during the internal affairs interview, Respondent advised that he used certain "scare tactics" to prevent or disperse criminal activity. He would advise individuals that the "jump-out boys" (narcotics tactical unit) were coming or advise that cameras were everywhere to clear the
area.
RBPD Officers Derrick Jackson, Gary Wilson, and John
Toombs confirmed the use of such tactics. These officers credibly testified that, due to a shortage of manpower, at times they would implement certain techniques to encourage known narcotics dealers to leave an area of the street. These techniques varied from simply sitting in the patrol car in close proximity, advising subjects to leave, advising subjects they would be arrested, approaching the subjects, and suggesting the tactical unit was out.
During the June 30, 2010, internal affairs interview, Respondent was also asked about the allegation that Respondent encountered Dean at the mall after the federal warrant had been issued for his arrest. The pertinent dialogue is set forth as
follows:
Officer Lewis: That is when you were at the mall, when you saw him when he was wanted?
You knew that he was wanted, but you didn't call. And you stated that was because you didn't know the right thing to do at the time?
Officer Gordon: Yes. Plus the safety of my son too. And the way he was acting, really, really bothered me.
Officer Lewis: How was he acting?
Officer Gordon: He smelled of--he reeked of marijuana and alcohol. You could smell it coming from him. His eyes were bloodshot and he was just, "I ain't trying to go back to jail--I ain't going back to jail." Is pretty much what he said.
. . .
Officer Gordon: . . . He (Dean) was looking to see if I was going to pick up my phone and call-- Freddie Dean--the guy you are looking for-- is in the mall right now, blah blah blah. . . .
Officer Lewis: He wanted to see if you would dime him out?
Officer Gordon: Exactly. Officer Lewis: But you didn't?
Officer Gordon: Unh-uh (indicating negative).
At the final hearing, Respondent initially testified that he did not know a warrant was active for Dean when he encountered Dean at the mall. Respondent conceded, however, after listening to the recorded internal affairs interview, that he was aware of a warrant for Dean during the mall incident.
The undersigned finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to
support a finding of fact that Respondent directly participated in or condoned illegal drug activity.
Similarly, the undersigned finds the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised said individuals or other potential criminal targets of the placement of the Operation Worldwide surveillance cameras.
The undersigned further finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised the criminal targets of when and where narcotics operations were to occur.
Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30,
2003.
Petitioner established, by clear and convincing
evidence, that Respondent encountered Dean after the federal warrant was issued for Dean. At the time of the meeting, Respondent was aware of the warrant, and took no action to notify any members of the law enforcement community of Dean's recent location.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding, pursuant to section 120.57(1), Florida Statutes.
Petitioner seeks to take penal disciplinary action against Respondent's law enforcement certification for alleged violations of sections 838.21, 838.016, or any lesser included offenses, 112.313(6), 943.1395(7), 943.13(7), and Florida Administrative Code Rule 11B-27.0011(4)(a). Therefore, Petitioner must prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.
Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence requires that:
[t]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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).
Section 943.13(7) requires law enforcement officers, as a condition of employment, to "[h]ave good moral character as
determined by a background investigation under procedures established by the commission."
Section 943.1395(7) provides:
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.
Pursuant to section 943.1395(7), Petitioner has adopted rule 11B-27.0011, which addresses "moral character" for purposes of complying with sections 943.13(7) and 943.1395(7). Rule 11B- 27.0011(4)(a) provides 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 by 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.
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(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.
Paragraph 2(b) of the Amended Administrative Complaint tracks the language contained within section 838.21 and alleges as follows:
On or between January 1, 2003 to
December 31, 2005, the Respondent, Nathan O. Gordon, did unlawfully obstruct, impeded, or prevent a criminal investigation or a criminal prosecution, to disclose active criminal investigative or intelligence information as defined in Chapter 119 or to disclose or use information regarding either the efforts to secure or the issuance of a warrant or other court process or court order relating to a criminal investigation or criminal prosecution when such information is not available to the general public and is gained by reason of the public servant's official position.
Section 838.21 provides:
It is unlawful for a public servant, with intent to obstruct, impede, or prevent a criminal investigation or a criminal prosecution, to disclose active criminal investigative or intelligence information as defined in chapter 119 or to disclose or use information regarding either the efforts to secure or the issuance of a warrant,
subpoena, or other court process or court order relating to a criminal investigation or criminal prosecution when such information is not available to the general public and is gained by reason of the public servant's official position. 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.
Accordingly, if Respondent were shown, by clear and convincing evidence to have violated section 838.21, he would be guilty of failing to maintain good moral character, pursuant to rule 11B-27.0011(4)(a).
Here, Petitioner presented clear and convincing evidence that Respondent encountered his friend and convicted felon, Dean, at the Palm Beach Mall. Petitioner similarly established that Respondent was aware of an active warrant for Dean. Respondent admitted both during the internal affairs interview and subsequently at final hearing that he was aware of the warrant. The evidence is undisputed that Respondent took no subsequent action after encountering Dean to secure his arrest.
Even with these undisputed facts, Petitioner failed to prove by clear and convincing evidence that Respondent notified Dean of the existence of the outstanding warrant, which is the gravamen of the instant charge. To the contrary, Respondent declined to disclose this information when requested by Dean. During the controlled call from Dean to Respondent, which occurred approximately three months after the mall meeting, Dean
inquired as to his warrant status, and Respondent did not inform Dean that he had an outstanding warrant. Moreover, when requested by Dean to check his name in the system, Respondent unequivocally responded that he could not, as he was not "President Bush."
Petitioner similarly failed to establish by clear and convincing evidence that Respondent disclosed the existence of or location of surveillance cameras utilized in Operation Worldwide. As noted in the Findings of Fact, the undersigned finds, based on the totality of circumstances, that the post- arrest statements of the convicted felons are not credible. Additionally, during the recorded phone call from Dean to Respondent concerning the surveillance cameras, Respondent told Dean that he did not know whether a camera was or was not in existence. Respondent's statement that, in essence, advised Dean that there is everything over there at Worldwide, does not produce in the mind of the undersigned a firm belief or conviction, without hesitancy, that Respondent had previously disclosed the locations of the covert cameras.
Petitioner also failed to establish by clear and convincing evidence that Respondent disclosed when the vice unit or "jump out boys" would actually be conducting an operation. It is undisputed that Respondent would advise groups of individuals that there were "cameras everywhere" and that the
"jump out boys were riding." Petitioner failed to establish, however, that Respondent actually knew whether cameras were in place or that the vice or narcotics units were actually conducting an operation. Petitioner failed to establish that Respondent's street tactics were anything other than a practical method to disperse a crowd. Petitioner has failed to establish a violation of section 838.21.
Paragraph 2(d) of the Amended Administrative Complaint
alleges:
On or between January 1, 2003 to
December 31, 2005, the Respondent, Nathan O. Gordon, did unlawfully solicit, accept, or agree to accept a benefit, to wit: an undisclosed amount of money and/or drugs, with intent to violate the official discretion of the public servant, in the performance of his public duty as an officer of the law.
Section 838.016 provides as follows:
It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a 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 which the person believes to have been, or 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. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal.
It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a 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 exertion of any influence upon or with any other public servant regarding any act or omission which the person believes to have been, or which is represented to him or her as having been, either within the official discretion of the other public servant, in violation of a public duty, or in performance of a public duty.
Prosecution under this section shall not require that the exercise of influence or official discretion, or violation of a public duty or performance of a public duty, for which a pecuniary or other benefit was given, offered, promised, requested, or solicited was accomplished or was within the influence, official discretion, or public duty of the public servant whose action or omission was sought to be rewarded or compensated.
Whoever violates the provisions of this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Petitioner contends Respondent violated the above- referenced section by providing narcotics to Dean on several occasions in exchange for currency, and for abstaining to arrest Dean when transacting drug deals. The undersigned finds that Petitioner failed to establish, by clear and convincing evidence, a violation of section 838.016. As noted above, the post-arrest statements relied upon by Petitioner to support said claim are not credible. Petitioner failed to establish a violation of section 838.016.
Paragraphs 2(e), (f), and (g) allege that on October 7, 2003, October 17, 2003, and November 30, 2003, respectively, Respondent:
. . . did corruptly use or attempt to use his official position as a law enforcement officer, or any property or resource within his trust, or did perform his official duties in such a manner as to secure a special privilege, benefit, or exemption for himself or others, to wit: queried Frederick Dean's name through FCIC and/or NCIC for no legitimate law enforcement- related purpose.
Section 112.313(6) provides 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. This section shall not be construed to conflict with s.
104.31.
Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30, 2003. Petitioner failed, however, to establish that the queries were for not for a legitimate law enforcement purpose.
Although Respondent and Dean were friends prior to Respondent's law enforcement career, and maintained a relationship thereafter, the same does not provide the requisite level of proof to establish that the queries were not for a legitimate law enforcement purpose. Likewise, Respondent's lack of specific recollection of the queries, conducted almost seven years prior to the internal affairs interview, does not provide
the requisite level of proof to meet the clear and convincing standard. Petitioner has failed to establish a violation of section 112.313(6).
As such, Petitioner has not met its burden to establish, by clear and convincing evidence, that Respondent failed to maintain good moral character in violation of subsections 943.1395(7) and 943.13(7) and rule 11B- 27.0011(4)(a).
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint.
DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida.
S
TODD P. RESAVAGE
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 27th day of November, 2012.
ENDNOTES
1/ Mr. Thomas appeared at the final hearing. The parties stipulated, however, that Mr. Thomas would be deemed unavailable pursuant to section 90.804, Florida Statutes. Frederick Maurice Dean did not appear at the final hearing. The parties also stipulated to his unavailability for purposes of section 90.804.
2/ Paragraph 2(a) provided that: "On or between January 1, 2003 to December 31, 2005, the Respondent, Nathan O. Gordon, did willfully, knowingly, and without authorization disclose data or take data, programs, or supporting documentation, to wit: FCIC/NCIC which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network."
Paragraph 2(c) provided that: "on or about June 30, 2010, the Respondent, Nathan O. Gordon, did unlawfully make a false statement, which he did not believe to be true under oath administered by Sergeant Josh Lewis in an official proceeding, to wit: Riviera Beach Police Department Internal Affairs Investigation 06-029, in regard to a material matter."
3/ The sequence of statements is as follows:
September 14, 2005, Thomas interviewed pursuant to a proffer agreement. October 20, 2005, Dean interviewed pursuant to a proffer agreement. November 8, 2006, Dean provided a recorded sworn interview. November 14, 2006, Thomas provided a recorded sworn interview. November 15, 2006, Henderson provided a sworn interview. May 5, 2009, Dean and Henderson provided recorded sworn interviews. May 11, 2009, Thomas provided a sworn interview.
COPIES FURNISHED:
Elissa R. Saavedra, Esquire
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
Richard Mark Weiner, Esquire Richard M. Weiner, P.A.
7479 Northwest 4th Street Plantation, Florida 33317
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
Gerald M. Bailey, Commissioner Florida 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 26, 2013 | Agency Final Order | |
| Nov. 27, 2012 | Recommended Order | Petitioner did not establish, by clear and convincing evidence, that Respondent failed to maintain good moral character in violation of subsections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(a). |
