The Issue The issues for determination are: (1) whether Respondent, Carolyn Ford, as a member of the Quincy City Commission, violated Section 112.3135(2)(a), Florida Statutes, by advocating the appointment of her son for a position with the Quincy Police Department; (2) whether Respondent violated Section 112.313(6), Florida Statutes, by using her official position as a member of the Quincy City Commission to attempt to obtain a job for her son with the Quincy Police Department; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, Carolyn Ford (Respondent), currently serves as a city commissioner for the City of Quincy, Florida, having first been elected to that office on March 31, 1998. As a city commissioner, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City Charter (Quincy City Charter or Charter) give the Quincy City Commission (City Commission or Commission) the authority to appoint and remove the city manager, the city attorney, and the city clerk. Under Section 3.04 of the Quincy City Charter, the city manager is given the exclusive authority to employ or appoint certain employees and administrative officers for the City of Quincy, including the police chief. Moreover, such employees or administrative officers serve at the pleasure of the city manager, who may, "when he deems necessary for the good of the services . . . suspend in writing, with or without pay, or remove any employee under his jurisdiction " Section 204(b) of the Quincy City Charter expressly prohibits the Commission or its members from dictating the appointment or removal of any city employee or administrative officer whom the city manager or any of his subordinates are empowered to appoint. Nonetheless, that provision of the Charter permits city commissioners, while in open or executive session, to "express their views and fully and freely discuss with the city manager anything pertaining to the appointment and removal of such officers and employees." By expressing their views to the city manager regarding the appointment or removal of city officials and employees, city commissioners may influence the hiring and firing of such officials or employees. Shortly before or after the March 1998 election, Roger Griswald, police chief for the City of Quincy, submitted his letter of resignation to City Manager Kenneth Cowen. Thereafter, City Manager Cowen appointed Robert Barkley (Barkley), who had served as Griswald's assistant for four years, as interim police chief. Barkley served in this position for about a month. Sometime during the week of May 17, 1998, City Manager Cowen called Barkley and asked whether he would accept the appointment as permanent police chief. On May 20, 1998, after City Manager Cowen talked to Barkley about being appointed permanent police chief, Barkley telephoned then Quincy City Commissioner Glenn Russ (Commissioner Russ or Russ). At Barkley's request, Commissioner Russ went to the Quincy Police Department (police department) to meet with Barkley. During the course of the meeting, it became apparent that Barkley had called the meeting in order to seek and gain Commissioner Russ' support of Barkley's appointment as permanent police chief for the police department. Prior to Barkley's calling Commissioner Russ, he was well aware that Commissioner Russ was dissatisfied with the police department because Russ had publicly expressed his views. Since 1995, Russ had been an outspoken critic of the police department, including Barkley. Russ' criticism stemmed from the police department's refusal to launch an independent investigation of a 1995 fatal car accident that involved a Quincy police officer and resulted in the death of two or three people, one of whom was Russ' cousin. During the May 20, 1998, meeting, Barkley disclosed to Commissioner Russ that City Manager Cowen wanted to appoint Barkley as permanent police chief. Barkley then told Commissioner Russ that he wanted to "bury the hatchet" and have Russ work with him. However, Commissioner Russ rejected both offers and was adamant that under no circumstances was he willing to "bury the hatchet." At some point during the May 20, 1998, meeting between Barkley and Russ, Auburn Ford, Jr. (Ford), the adult son of Respondent, stopped by the police department after he saw his friend Russ' car parked there. Barkley invited Ford to come into his office. Once Ford was in the office, Barkley asked him what it would take for "us to get along," to which Ford replied, "Nothing." Barkley then told Ford that City Manager Cowen was going to name Barkley police chief, and that there could be a "second-in-command" job for Ford. This idea was nixed by Ford who stated emphatically that he wanted to be police chief. Barkley then suggested that he should be police chief because he had more experience in law enforcement than Ford. However, Ford's position remained unchanged and he insisted that he wanted to be police chief, not second-in-command to Barkley. Barkley later called Anthony Powell to the May 20, 1998, meeting with Commissioner Russ and Ford. Barkley hoped to persuade Powell to support his appointment as the permanent police chief. Powell's support was important because he was considered by many in the community to be the frontrunner for the Quincy city manager position after City Manager Cowen was removed from office. Once Powell arrived at the May 20, 1998, meeting, in an effort to put their past disputes behind them, Barkley expressed his desire to "bury the hatchet." In response, Powell stated only that Russ was his friend and that he did not want to get in the middle of any conflict between Russ and Barkley. Further, Powell stated that he only wanted to be a good employee. Some time ago, when both Barkley and Powell were city employees, Barkley was Powell's supervisor. The relationship between Barkley and Powell became strained after, based on Barkley's recommendation, Powell was reprimanded and suspended for a week without pay. The May 20, 1998, meeting initiated by Barkley and held in his office, failed to gain for him the support he wanted. Neither Russ, Powell, nor Ford responded positively to Barkley's overtures. Russ told Barkley, "it was war" between them and he would not "bury the hatchet." Powell, though not as outspoken as Russ, never agreed to support Barkley as police chief. Finally, Ford never agreed to serve as second-in-command but rather insisted that he wanted to be police chief for the City of Quincy. Russ, Ford, and Powell were friends who sometimes socialized together. It was at a social attended by Russ, Ford, and Powell in January 1998 that the idea of Ford's becoming police chief was first discussed. Respondent was not present at this event. On or about May 28, 1998, Cowen advised Barkley that he was going to appoint him police chief and that the appointment would be announced at an official ceremony at City Hall the following day, Friday, May 29, 1998, at 11:00 a.m. Both Cowen and Barkley knew that such an appointment might be short-lived because the City Commission had recently directed the attorney for the city to prepare a resolution for then City Manager Cowen's removal. Nonetheless, Cowen and Barkley were optimistic that Barkley's appointment would not be immediately jeopardized because of their belief that Barkley had community support. On the evening of May 28, 1998, around 9:00 p.m., Barkley was paged by his wife and given Ford's telephone number to call. Ford had called Barkley after learning that Barkley would be appointed police chief the next day. Later that evening, Barkley returned Ford's call. Ford asked Barkley if he was going to accept the position of police chief. In response Barkley indicated that he was going to accept the position. Ford then told Barkley that he should not accept the position because "You know what's going to happen next Tuesday night," referring to the resolution which would be presented at the City Commission meeting Tuesday night to replace Cowen as city manager. Barkley was not sure what Ford meant by his reference that "something would happen" by next Tuesday. Barkley was unsure whether Ford was threatening to harm Barkley and/or his family or whether Ford was referring to the upcoming City Commission meeting. As a result of his conversation with Ford, Barkley became concerned for his safety and that of his family. After the telephone conversation with Ford, Barkley called his friend, then Quincy Police Officer James Corder and expressed his concern about Ford's call. Officer Corder then contacted Captain Jim Godwin of the Gadsden County Sheriff's Office and reported the incident. Later that night, Barkley told his wife and Dr. Harold Henderson, Superintendent of Gadsden County Public Schools and Barkley's best friend, about the telephone conversation with Ford. At about 8:00 a.m. the next morning, Friday, May 29, 1998, Ford was told that Barkley had made a report to the Gadsden County Sheriff's Office, alleging that Ford had threatened him. In an effort to clear up Barkley's misperception of Ford's comments, Ford immediately called Dr. Henderson and explained that he had not threatened Barkley. Ford then asked Dr. Henderson to talk to Barkley about the situation and convey that the comments were not a threat. Dr. Henderson called Barkley that same morning but was unable to convince him that Ford was not a threat. Later that morning, at about 11:00 a.m., the scheduled ceremony was held at Quincy City Hall for Barkley's swearing in as police chief. This event, attended by a number of community leaders as well as Barkley's family and friends, was planned to gather support for Barkley to remain in the police chief position after the new city manager was appointed. It was anticipated that the new city manager would be appointed within two weeks. At the conclusion of the ceremony, Ford went to Barkley in a non-threatening manner, congratulated Barkley and indicated that he wanted to work with him. Ford also told Barkley that they needed to talk and settle the matter. Thereafter, a brief verbal confrontation ensued between Ford and Officer Corder, who was near Barkley. At that time, there were a number of officers around Barkley who knew about the alleged threat and, consequently, were on heightened alert. As Ford approached Barkley, some of the officers moved toward Ford in a threatening manner. Thereafter, in an effort to prevent the situation from escalating, a police officer escorted Ford from the building. After Ford was escorted from City Hall, he called his mother, Respondent, and told her about the alleged threat and the confrontation with the police officers after the swearing-in ceremony. In describing the incident to Respondent, Ford stated that the police officers had "encircled him and . . . had their hands on their guns." After the conversation with Ford, Respondent became concerned for her son's safety. She believed that the situation involving her son's alleged threat was simply a misunderstanding and one that needed to be resolved immediately to prevent the matter from becoming a more serious problem. In an effort to quell any criminal repercussions against her son which could have resulted from Barkley's allegation and out of concern for his safety, Respondent requested the assistance of Dr. Henderson to help to resolve the misunderstanding between Barkley and her son. On May 29, 1998, after learning about Ford's alleged threat and the encounter with the police officers, Respondent called Dr. Henderson. Respondent explained the situation regarding the alleged threat and requested that Dr. Henderson meet with her and Barkley in order to resolve the misunderstanding. Because Dr. Henderson considered both Respondent and Barkley friends, he agreed to arrange and facilitate such a meeting. When Respondent arrived at Dr. Henderson's office the afternoon of May 29, 1998, she asked that Dr. Henderson "show some leadership" and help resolve the situation between her son, Ford, and Barkley. During the first part of the meeting, when only Respondent and Dr. Henderson were present, the focus of the meeting was the alleged threat. Respondent and Dr. Henderson discussed the alleged threat and agreed that the matter was getting "out-of-hand" and had escalated to the point where something had to be done. Further, Respondent indicated that she did not believe her son would make such a threat and that the whole incident was a misunderstanding. Dr. Henderson knew Ford and concurred with Respondent's opinion that Ford would not make such a threat. However, Dr. Henderson had been unable to convince Barkley of this in their previous two telephone conversations regarding the matter. At some point during the May 29, 1998, meeting, Dr. Henderson called Barkley and Respondent called Ford to join the meeting. Barkley arrived at the meeting before Ford. When Barkley arrived, Respondent discussed her concerns relative to the alleged threat. Respondent's comments to Barkley focused on the alleged threat. In fact, she said the same things to Barkley that she had said earlier to Dr. Henderson. That is, she did not believe Auburn Ford would make such a threat, the incident was simply a misunderstanding, and the matter needed to be resolved. This part of the conversation lasted about 15 or 20 minutes and concluded after Barkley explained that it was just a misunderstanding and that the matter had been "taken care of." Following the exchange regarding the alleged threat, with only Respondent, Barkley, and Dr. Henderson present, there was a discussion of problems with the police department. Respondent indicated her general dissatisfaction with the police department and her belief that the police department was "out of control." Respondent stated that she thought her son could be a "liaison" between the police and the Commission to help bridge the gap and solve some the department's "perception problems." However, in making these very general comments, Respondent never mentioned Ford's getting a job with the police department. After the aforementioned discussion, Ford arrived at the meeting in Dr. Henderson's office. Once Ford arrived, Respondent wanted Barkley and Ford to discuss and resolve the issue relative to the alleged threat. With Dr. Henderson serving as facilitator, Barkley and Ford discussed the alleged threat. Ford explained that Barkley had simply misinterpreted his comment. Once the issue of the alleged threat was resolved, the discussion between Barkley and Ford shifted to the possibility of Ford's working for Barkley within the police department. Prior to the May 29, 1998, meeting, Dr. Henderson was aware that Ford wanted to be police chief and, as facilitator, thought this matter was one that could be worked out amicably between Barkley and Ford. To this end, as part of this meeting, Barkley and Ford, with Dr. Henderson as facilitator, discussed Ford's working in the police department under Barkley. At some point during the discussion concerning the possibility of Ford's working for the police department, Ford stated that he had the support of the city commissioners. Because the City Commission had five members, Ford's statement implied that he had the support of three of the commissioners. Respondent was not involved in this part of this discussion and there is no indication that Respondent heard the comment. Respondent was in Dr. Henderson's office during the meeting between Barkley, Ford, and Henderson but was on the other side of the very large office looking at a television program. Respondent believed that the misunderstanding could be resolved if Dr. Henderson facilitated a discussion between Barkley and Ford. Therefore, Respondent did not participate nor was she involved in the discussions between Barkley and Ford, including the discussion about Barkley's bringing Ford on board to work with the police department. The meeting at Dr. Henderson's office ended after Agent Brinson of the Florida Department of Law Enforcement came by Dr. Henderson's office to interview Barkley and Ford about the alleged threat. When the meeting concluded, both Ford and Dr. Henderson had the impression that Barkley was going to hire or appoint Ford to a position with the police department, and the details would be worked out at a meeting the following Monday at 8:00 a.m. After the May 29, 1998, meeting, Barkley decided not to hire or appoint Ford. On Monday, May 31, 1998, Barkley called Dr. Henderson and indicated that he was not going to hire Ford. Dr. Henderson then told Barkley that he should call Respondent and tell her. Barkley complied with Dr. Henderson's request and called Respondent. When Barkley reached Respondent, he told her that he could not do "it" and hung up the phone. Four days after Barkley was appointed as permanent police chief of the Police department, City Manager Cowen was replaced by Anthony Powell. As city manager, Powell exercised his independent judgment to hire and retain those employees he felt best reflected his management style and who could best serve the interests of the City of Quincy. On June 9, 1998, a week after Powell was appointed city manager, he decided to replace Barkley. Two days later, Barkley was relieved from his responsibilities as police chief. The reason City Manager Powell decided to remove Barkley as police chief was that he disagreed with Barkley's management style and doubted his credibility. Prior to Barkley's separation from the police department, Respondent urged City Manager Powell to continue Barkley's employment with the city. However, notwithstanding Respondent's support of Barkley, Powell made it clear to Respondent that Barkley could not continue as police chief. On June 11, 1998, City Manager Powell appointed Rodney Moore to replace Barkley as Quincy's police chief. Ford applied for a position with the police department on June 19, 1998, three weeks after the May 29, 1998, meeting in Dr. Henderson's office. More than a month after it was filed, Ford's application had not been processed. On July 20, 1998, at approximately 1:40 p.m., Commissioner Russ telephoned Chief Moore's office. Commissioner Russ was agitated because his car had been vandalized on July 16, 1998, while it was parked in front of City Hall. The police officer called to the scene promised to have a written report prepared by the next day but had not done so. Commissioner Russ complained to Chief Moore that he had not received the incident report regarding the vandalism of his car. He also told Chief Moore that he (Moore) "had problems" because Ford should have been hired. After voicing his complaints, as if to explain his mood, Commissioner Russ told Chief Moore that he (Russ) had lost his job that day and had enough problems. Commissioner Russ ended the conversation by telling Chief Moore that he needed to "straighten it up" and "work it out." Later, on the afternoon of July 20, 1998, Commissioner Russ went to Respondent's office in Gretna as a volunteer to work on her office computers. While at Respondent's office, Commissioner Russ telephoned Chief Moore. Commissioner Russ still sounded very upset and during this conversation, again, complained about the police department's failure to timely process Ford's application for a reserved officer position with the police department. Commissioner Russ also told Chief Moore that he had problems because Ford had not been hired. Respondent was not in her office when Commissioner Russ was speaking on the telephone, and was unaware of the identity of the person to whom Russ was speaking. During his telephone conversation with Chief Moore, Russ was speaking very loudly and could be heard overheard by those in the area outside Respondent's office. Because Commissioner Russ' conduct was disruptive, Respondent went into her office and told Russ to leave. After Respondent told Russ to leave her office, he told Chief Moore to explain it to "her." Russ then either handed the telephone receiver to Respondent or put it on the desk. Once Respondent had the telephone receiver, Chief Moore continued giving the explanation regarding the reasons for the delay in processing Ford's application. The reason Chief Moore continued the explanation he was giving Russ was that he assumed Respondent was interested in the processing of her son's application. After listening to Chief Moore's explanation, Respondent expressed a concern about the manner in which the application was being processed. Respondent's specific concern appeared to be the length of time it took to process an application. However, Respondent made no attempt during this telephone conversation or any other time to influence Chief Moore's decision to hire her son. In fact, the credible testimony of Chief Moore was that Respondent "never mentioned anything about hiring him" and that Russ was the only person pushing Ford's employment. At no time during the May 29, 1998, meeting or anytime thereafter did Respondent participate in any discussion about Ford's working with the police department. In fact, although Ford had worked extensively in law enforcement, Respondent was never supportive of her son's desire to work in this area. At no time did Respondent threaten, coerce, or intimidate Barkley or anyone else about hiring her son, Ford, to work for the police department. Ford was never a paid employee of the police department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order and public report be entered finding that Respondent Carolyn Ford, did not violate Sections 112.3135(2)(a) and 112.313(6), Florida Statutes. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of April, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack L. McLean, Jr., Esquire McGuire, Woods, Battle & Booth, LLP 285 Peachtree Center Avenue, Northeast Marquis Two Tower, Suite 2200 Atlanta, Georgia 30303-1234 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated Facts The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10. Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached. In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty: Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint. Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence. Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment. The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year. Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol. Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes. Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority. Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment. Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines. To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes. Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation. Other Facts The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers. FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9. While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale. Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses. As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy. Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered. Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty. Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately $1,000 per month in additional, private income. Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future. In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records. The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent. It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation. While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited. Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Burton B. Griffin, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 56974 on August 3, 1979. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO). This controversy involves charges that respondent (a) unlawfully possessed drug paraphernalia in October 1992, (b) unlawfully possessed a crack pipe in July 1992, and (c) falsified an arrest and booking docket for one Beverly Hay in July 1992. In 1991, respondent was assigned to the Zone 3 Community Problem Response Team (team). The team, which consisted of 6 to 8 officers at any given time, worked the "core city downtown" area, which was the most crime-ridden, dangerous and violent part of the City. As a member of the team, respondent often engaged in the dangerous task of performing undercover narcotics work, which required him to make undercover purchases of drugs from local dealers. Through undercover assignments, he also apprehended local prostitutes. In order to effectively carry out his responsibilities as an undercover agent, respondent was required to wear disguises, which included such "props" as civilian clothes, a beard, and glasses. In addition, respondent would drive an unmarked car and carry a bottle of liquor and crack pipes. The pipes were placed in the ashtray of the car and in his shirt pocket to convince the drug dealer that respondent was a "street person" and not an undercover law enforcement officer. When not being used, the props were kept in a bag in the trunk of the vehicle. On July 13, 1992, respondent and his partner were flagged down by a female prostitute named Beverly Hay on a downtown street. After solicting respondent, Hay was told she would be charged with prostitution, a misdemeanor. She was also in possession of what appeared to be a crack pipe, another misdemeanor. Hay had a previous record of prostitution arrests, and she did not want to be incarcerated for a long period of time. In return for not being arrested, she agreed to act as a confidential informant and make purchases of drugs from various crack houses in the neighborhood. With this information, JSO could then obtain search warrants for each of the illicit houses. After obtaining the approval of his supervisor not to arrest Hay, respondent released Hay but gave her his pager number and instructions to call him as soon as she was ready to make a buy. Respondent kept the crack pipe in his vehicle as leverage to insure that Hay would fulfill her side of the agreement. In other words, if she did not fulfill her part of the agreement, the pipe would then be used as evidence to arrest her for possession of drug paraphanalia at a later date. Before she was released, Hay was told that this would happen. This type of arrangement was not unusual for officers working in undercover narcotics. As of July 16, 1992, Hay had still not provided the agreed upon assistance. That evening, respondent observed Hay in the 700 block of West Monroe Street. After apprehending her, respondent learned that Hay did not intend to provide any assistance. Accordingly, he prepared an arrest and booking report in which he stated that Hay was being arrested for possession of the crack pipe which he had found on her three days earlier. In the "narrative" portion of the report, however, respondent stated that Hay had the pipe in her possession on July 16, rather than the correct day of July 13. The report and crack pipe were filed with the JSO, and Hay served approximately 16 days in jail before being released. Respondent filled out the report in this manner because both he and his partner were unsure how to fill out a "deferred arrest" for a misdemeanor offense. Indeed, while most witnesses in this case were generally familiar with the procedure for a felony deferred arrest, no one had ever made a deferred arrest for a misdemeanor. The report would have been accurate had respondent simply stated that Hay was arrested with the pipe on July 13, released that day on the condition that she would provide information, and after failing to perform under her agreement, she was again arrested on July 16 for the original offense. Respondent candidly acknowledged that in hindsight he was wrong and had used poor judgment in filling out Hay's arrest report in the manner that he did. Even so, there was no intent on his part to intentionally violate any JSO policy, Commission rule or state law. More specifically, he did not intend to falsify an official record as charged in the administrative complaint. Rather, the report was incorrectly prepared due to respondent's lack of knowledge on how to make a deferred misdemeanor arrest. On October 27, 1992, the JSO internal affairs section searched all team vehicles. While searching respondent's vehicle, the section found two crack pipes (and other props) that were used by respondent during his undercover work. Even if the pipes were used as props, under a JSO general order the pipes should have been returned to the property room at the end of each shift. By failing to turn them in, respondent unintentionally violated the JSO policy. In addition, by not turning in the Hay pipe for three days until she was arrested, respondent unintentionally violated the same policy. Respondent had found the two pipes used as props laying on a street during one of his many sweeps of known drug areas. Since they were necessary props for his undercover work, he kept them in a bag with his other props. Although the JSO had an informal policy calling for paraphanalia to be checked out of the property room before each undercover assignment, respondent was unaware of this requirement, and he knew of no other officer who had ever done the same. In addition, respondent believed the items had no intrinsic value, and under another JSO general order, unclaimed property having no intrinsic value did not have to be turned into, or checked out of, the property room. At the same time respondent was using the pipes as props, it was common knowledge among JSO officers that another JSO strike force, with its supervisor's approval, was using similar props without turning them into the property room each day. Therefore, it is found that respondent could have reasonably believed he was not violating any general order by keeping his props in a bag in the trunk of his vehicle. In any event, there is no suggestion, or even a hint, that the three pipes were used for any purpose other than official police business. For violating a general order pertaining to "Competency and the Handling of Evidence," respondent received a written reprimand and a limited suspension of sixty working days in 1993. The JSO did not sustain the allegations pertaining to unlawful possession of contraband and falsifying a report. Under Rule 11B-27.003(2), Florida Administrative Code, the employing agency (JSO) is required to forward to the Commission a completed form reflecting only those violations that are sustained. For reasons unknown, in the form filed with the Commission, the JSO internal affairs section incorrectly recited that all allegations had been sustained. Thereafter, the Commission issued an administrative complaint, as amended, seeking disciplinary action against respondent's law enforcement certification for the unsustained allegations. Except for the discipline meted out by JSO in 1993, respondent has had an exemplary career as a law enforcement officer, having served with various departments since 1979. He has continued his employment with the JSO since this incident and is now in a position of special trust as an evidence technician. At hearing, his superiors lauded his integrity, honesty, work ethic and dedication as a police officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the administrative complaint, with prejudice. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2909 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 4. 5-8. Partially accepted in finding of fact 12. 9-13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. Rejected as recitation of testimony. Partially accepted in finding of fact 12. 18-24. Rejected as recitation of testimony. 25. Rejected as being irrelevant. 26-27. Rejected as being recitation of testimony. 28-29. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. Rejected as being unnecessary. 33 Rejected as being irrelevant. 34-49. Rejected as being recitation of testimony. Partially accepted in finding of fact 11. Rejected as being recitation of testimony. Respondent: Partially accepted in findings of fact 1 and 17. Partially accepted in finding of fact 17. Partially accepted in finding of fact 3. 4-7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 14. 12-14. Partially accepted in findings of fact 12 and 13. 15-16. Partially accepted in findings of fact 13. 17. Rejected as being unnecessary. 18-29. Partially accepted in findings of fact 5-11. 30-34. Partially accepted in findings of fact 15 and 16. 35. Partially accepted in finding of fact 11. 36-42. Partially accepted in finding of fact 17. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street Jacksonville, Florida 32202-2715 T. A. Delegal, III, Esquire 5530 Beach Boulevard Jacksonville, Florida 32207 A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles E. Nelson, was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on February 23, 1990, and issued certificate number 99509. Based on what Officer Nelson told a fellow officer, he had previously worked in law enforcement for 20 years in Toledo, Ohio. On December 12, 1992, Sergeant Charles Anthony Wall of the Jacksonville Sheriff's Office and Dale Wayne Vermillion, a reserve police officer, responded to a call, reporting that a man and a woman were fighting near a convenience store. Officer John Michael McKim also responded to the call, in a separate vehicle, to serve as Sergeant Wall's backup. Tommy Goode and Teresa Pickens were found in a wooded area near the convenience store and were arrested for disorderly intoxication. Because Goode and Pickens were arguing with each other, they were placed in separate police cars. Goode was handcuffed and locked in the back of Sergeant Wall's caged police car, while Pickens was placed in Officer McKim's car. While Sergeant Wall was sitting in the driver's seat of his vehicle completing certain paperwork, including an arrest docket, Officer Nelson arrived in a third vehicle. From the back of Sergeant Wall's car, Goode was yelling offensive comments to all of the officers. After Officer Nelson, who is Black, approached the car, Goode included racial epithets, including the word "nigger," in his continuing offensive comments. Officer Nelson responded to Goode's taunting by saying words to the effect: "I'm not like the rest of these people, I don't need my job. I'll come back and get you." Officer Nelson unlocked the back door of Sergeant Wall's car, leaned in, grabbed, choked, and shook Goode. The reserve officer who could see Goode's face during the attack described it as follows: And when Officer Nelson went into the vehicle, I was standing looking in through the window, and Officer Nelson grabbed Mr. Goode around the neck with his hand and was choking him to a point that I had not seen a human's eyes extend out of their eye sockets so far, so he was choking him pretty hard and kind of shaking him back and forth. Transcript p. 24 Because of Officer Nelson's size and strength, Sergeant Wall needed the assistance of Officer McKim to pull him off Goode and out of the car. In the following excerpt of his testimony, Sergeant Wall described his response to Officer Nelson's actions: So I told him, you know, hey, "What are you doing, get off of him," something to that effect. And that didn't work, so I began to try to pull him off, me and Officer McKim. And it took great effort to get him off, and I don't know if I actually -- he let go, or the effort that it took to pull him off that got him off, I just remember that when he came out of the backseat, that he was like a wild man. I mean, I thought at one point he was going to jump on us. Transcript p. 10 Goode had red marks on his neck when Sergeant Wall transported him to jail. The Sheriff's Department initiated both criminal and administrative investigations of Officer Nelson's attack on Goode. Officer Nelson was first reassigned to a desk job and, ultimately, left the department. Officer Sandra M. Pike participated in the internal investigation of the incident by the Sheriff's Office. When she interviewed Officer Nelson, he told Officer Pike that he lost control and that he intended to shut Goode up. The force used by Officer Nelson was unnecessary. Goode was not posing a threat or trying to escape. The conduct of Officer Nelson constitutes a criminal offense and demonstrates a failure to maintain good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement, revoke certificate number 99509, issued on February 23, 1990, to Charles E. Nelson. DONE AND ENTERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training 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 Amy J. Bardill, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF 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 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2011.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
