The Issue The issue for consideration herein is whether Petitioner should be granted certification as a law enforcement officer in Florida.
Findings Of Fact In early November, 1988, the Palmetto, Florida Police Department submitted an application for certification as a police officer for Petitioner herein, James L. Foy, to the Criminal Justice Standards and Training Commission. The CJSTC is the agency in Florida charged with the certification of law enforcement personnel in this state. The Affidavit of Compliance submitted with the application reflected that "all criminal history records have been expunged under the provisions of Section 943.058(6)(a)", Florida Statutes. By letter dated February 8, 1989, the CJSTC notified Petitioner that it was denying his application for certification because: You knowingly engaged in sexual intercourse with a minor female person, after you had attained majority and while employed and certified as a law enforcement officer, though off duty. The parties stipulated, and it is so found, that the CJSTC has not conducted an independent background investigation of the Petitioner and relied solely on the single incident as set forth above as establishing that the Petitioner is not of good moral character. Petitioner served as a police officer with the Bradenton Police Department from April, 1982 to June, 1985 when he resigned. In the fall of 1984, when he was twenty-four years old, Petitioner was performing security services, in an off duty capacity, at a high school football game in Bradenton. After the game, Petitioner's supervisor in the police department, Corporal Simpson, invited him to come home with him after the game for some refreshments. Petitioner agreed, and subsequently met Simpson, Simpson's fourteen year old daughter, and another girl at the Simpson home. Shortly after going inside, Simpson excused himself and left the room with the other girl, leaving Petitioner along with Ms. Simpson on the couch in the living room. Almost immediately, Ms. Simpson began making sexual advances toward Petitioner to which he was initially receptive, believing her to be somewhat older than she was. He knew she was not 18, but did not know that sex with someone over 15 was against the law. Shortly after Ms. Simpson began sexual advances toward him, loosening his trousers and rubbing his penis, leading to her committing fellatio on him, Petitioner became uncomfortable with the situation, terminated the encounter, and left the Simpson house. During the course of an investigation into an allegation of sexual involvement of one or more Bradenton police officers with minor females in April, 1985, Captain Mayer, of the Manatee County Sheriff's Department interviewed Ms. Simpson and Petitioner's name came up. At that time, Mayer felt she looked older than she actually was. She wore "overdone" makeup and her speech and demeanor were promiscuous. She was obviously trying to make herself look older through the clothes she wore and admitted frankly she had initiated the contact with Petitioner. She also indicated she had sex with others, including other police officers, and could see nothing wrong with it. Mayer later interviewed Petitioner about this at the Bradenton Police Department. Petitioner was not under arrest at the time and frankly admitted the one involvement with Ms. Simpson at her house, as described above. After completing the investigation, Mayer made his report to the Assistant State Attorney who charged Petitioner with having sex with a child under age 16. No evidence was presented as to the outcome of that charge. While serving as a police officer with the Bradenton Police Department, Petitioner received several written and verbal commendations and was named police officer of the year in 1984. He had no disciplinary record with the department. He was well liked and respected by his fellow officers and superiors on the force and was rated as having excellent law enforcement officer abilities and characteristics. His reputation for truthfulness and integrity within the department was outstanding. Petitioner is also highly thought of within the remainder of the law enforcement community in Manatee County even though the incident with Ms. Simpson is well known throughout that community. He still has an excellent reputation for truthfulness and integrity within the community and those who know his character feel he can function effectively as a law enforcement officer notwithstanding this incident. In 1988 the Palmetto Police Department conducted a background investigation of petitioner relevant to his prospective employment with the department. This thorough investigation included a polygraph examination and interviews with his previous employers, friends, neighbors, and others who know and have known him for years. The ultimate conclusion of this investigation was that Petitioner is of good moral character. A similar investigation by the Hardee County Sheriff's Department in 1989 established the same. Other individuals on the periphery of the law enforcement community, who have: know Petitioner and his family for many years are satisfied his character and his reputation for honesty and integrity in the law enforcement and business communities are superb.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Criminal Justice Standards and Training Commission find that Petitioner, James L. Foy meets the good moral character requirement of the certification statute and, all other qualifications being met, grant him certification as a law enforcement officer in Florida. RECOMMENDED this 3rd day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of January, 1990. COPIES FURNISHED: Gene Johnson, Esquire Florida Police Benevolent Association, Inc. General Counsel 300 East Brevard Street Tallahassee, Florida 32301 Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P. O. Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Post Office Box 1489 Tallahassee, FL 32302 FDLE P. O. Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts." Shortly after beginning his association with Ms. Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on September 21, 2002. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter. If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good." More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty. S DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-9675 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky, P.A. 438 East Government Street Pensacola, Florida 32502
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Parties. Petitioner, Robert L. Wright, is an African-American. Officer Wright was, at all times relevant to this proceeding, employed by Respondent as a police officer. Respondent, the City of Gainesville (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. The City provides law enforcement services through the Gainesville Police Department (hereinafter referred to as "GPD"). At all times relevant to this proceeding, the Chief of GPD was Wayland Clifton, Jr. The City is an "employer" for purposes of this proceeding. Officer Wright's Employment With GPD. Officer Wright was hired by GPD in 1984. Officer Wright has served as a police officer with GPD continuously since being hired. From approximately 1985 until July of 1990, Officer Wright was assigned to Crime Prevention or Neighborhood Services. Officer Wright served as "Officer Friendly" and as the Explorer Advisor. While employed with GPD Officer Wright has received several awards and honors. See Petitioner's exhibit 10 for a list of Officer Wright's awards and honors. Officer Wright was awarded a B.A. degree in Criminal Justice from the University of Florida in 1983. Officer Wright's annual evaluations have been above-average. Officer Wright has received the following sustained internal affairs complaints prior to March of 1993: March 1, 1988: Involvement in an at-fault vehicle accident; October 12, 1990: Inefficiency in job performance; October 12, 1990: Offensive conduct toward the public/person - physical abuse; October 12, 1990: Offensive conduct toward the public/person - verbal abuse; October 22, 1990: Failure to appear for any legal process; December 17, 1990: Inefficiency in job performance; February 21, 1991: Inefficiency in job performance; and November 23, 1992: Inefficiency in job performance. The three complaints of October 12, 1990 all arose out of the same incident. Officer Wright received a written warning for each of the foregoing sustained complaints. A written warning is the lowest recorded punishment for a sustained complaint. A written warning may not be appealed. Officer Wright also received sustained complaints after 1991, but the evidence failed to prove that any of those sustained complaints were taken into account in determining whether to promote Officer Wright. Prior to 1990, Officer Wright had received overall ratings of 7 and above on his annual evaluations. A score of 5 is considered average. During 1990, Officer Wright and his former spouse were involved in divorce proceedings and a contested custody dispute over their daughter. These disputes caused disruptions for Officer Wright and GPD. As a result of the disruptions and the fact that Officer Wright was reassigned to patrol in 1990, Officer Wright's overall evaluations declined. For the period April 2, 1990 to April 1, 1991, his overall evaluation was 6.0. His overall evaluation for April 1, 1991 to March 30, 1992 was 6.2, and for March 20, 1992 to March 29, 1993 was 6.6. Officer Wright was counseled by his immediate supervisor, Lt. David Huckstep, about the performance of his duties during the time that Officer Wright was involved in the dispute with his former wife. Lt. Huckstep talked to Officer Wright about being late to work, an "attitude problem" and the negative impression of GPD being caused by the problems associated with Officer Wright's divorce. Lt. Huckstep also discussed these problems with Captain Richard Carroll. Captain Carroll was part of the Command Staff that was involved in discussions of candidates for promotion to corporal, discussed, infra. Officer Wright's Activities on Behalf of African- American Issues. Officer Wright has been active in promoting the betterment of African- American officers of GPD since becoming a police officer. Officer Wright's activities on behalf of African-American issues has been very vocal and open. There are some who perceive Officer Wright's methods as too aggressive or vocal. The evidence, however, failed to prove that perception is held by Command Staff or Chief Clifton. On September 25, 1985, Officer Wright, along with ten other officers, were appointed by Chief Clifton as "recruitment team members". Petitioner's exhibit 3. Chief Clifton informed Officer Wright and the other team members that they would be assigned, as needed and on a rotational basis to recruitment functions by the Police Personnel Office. Officer Wright and the other team members had expressed interest in assisting with recruitment. On September 20, 1988, Officer Wright and eleven other individuals were appointed by Chief Clifton as a "Minority Recruiting and Training Task Force". On October 3, 1990, Officer Wright and fourteen other officers were appointed by the Professional Standards Commander, Captain Eugene K. Ross, to participate in the oral interview board for police officer applicants. Appointment to this task was based upon the expressed interest of the participants. Officer Wright has questioned the success of GPD's efforts to recruit and promote African Americans and has questioned the discipline of African American police officers. The evidence, however, failed to prove that Officer Wright's activities on behalf of African Americans amounted to opposition to any unlawful employment practice under Chapter 760, Florida Statutes, by GPD, except as discussed in section D of this Recommended Order. Officer Wright's Meeting with the City Manager. At some time during 1990, Officer Wright, Captain Tony Jones, Lt. Alena Buggs (then known as Alena Lawson) and Sergeant Wayne Ashe met with Paul White, the City of Gainesville City Manager. The meeting with Mr. White was requested for the purpose of discussing the hiring and promotion of African-Americans at GPD. A perceived disparate treatment of African-American officers with regard to disciplinary actions at GPD was also briefly discussed with Mr. White. In particular, Officer Wright gave Mr. White a copy of an Internal Affairs report concerning a complaint against Officer Dan Schilling (hereinafter referred to as the "Schilling Report"). See Petitioner's exhibit 2. Officer Schilling had been found to have used the words "those God damn niggers" in front of others. When the report was forwarded to Chief Clifton from internal affairs an Employee Notice form summarizing the incident was used to send the actual detailed report to Chief Clifton. Petitioner's exhibit 2. Under the "Comments" section of the Employee Notice the offending words were quoted. Chief Clifton sent the report back with a note indicating that he would sign the report and accept the recommended punishment when the quoted offensive words were removed. The words were later removed and Chief Clifton approved the report and the proposed punishment. Mr. White told the officers that he would look into the Schilling Report. The evidence, however, failed to prove whether Mr. White ever spoke to Chief Clifton or any other individual about the Schilling Report or the meeting. Officer Wright's Transfer to Patrol in July of 1990. On or about July 3, 1990, a transfer order was issued transferring Officer Wright to the Patrol Division. See. Respondent's exhibit 1. The transfer order of July 3, 1990 was issued after Officer Wright had given the Schilling Report to Mr. White. The evidence failed to prove how long a period of time had passed after the meeting with Mr. White before the transfer was ordered. Pursuant to the transfer order, four other officers were also transferred. During the month of July of 1990 a total of eight officers were transferred to patrol. None of the officers transferred had attended the meeting with Mr. White except Officer Wright. Of the individuals who attended the meeting with Mr. White, only Officer Wright was transferred. The transfer was effective July 23, 1990. Initially Officer Wright was to be assigned to the midnight shift. Officer Wright was absent on leave when the transfer order was issued. He learned of the transfer on July 10, 1990. Captain Jones informed Officer Wright of the transfer. Officer Wright spoke to Captain Noel Thomas, the commander of Patrol, on July 10, 1990 concerning the transfer. Officer Wright requested orally and by memorandum that he be assigned to a day-shift. See Respondent's exhibit 7. This request was made because Officer Wright was a single parent with custody of his three-year old daughter. Although Captain Thomas initially told Officer Wright that he would be assigned to the midnight shift, the next day, July 11, 1990, Captain Thomas told Officer Wright that his request to be assigned to a day shift would be approved. Patrol is the largest division of the GPD and is the primary service provided by GPD. All commanders, including the commander in charge of the Neighborhood Services Division of GPD, Captain Jones, were informed that there was a shortage of personnel in the Patrol Division. Therefore, the Chief directed Captain Jones and the other commanders to look within their respective divisions and make recommendations about any officer that could be transferred to patrol. Captain Jones decided that either the school resource officer at Gainesville High School, Officer Burke, or the Explorer Advisor, Officer Wright, should be returned to Patrol. Captain Jones decided that it was more important to retain an officer at the high school than to have an Explorer Advisor. This decision was based upon Captain Jones' belief that, if the high school resource officer was removed, patrol would simply take the officer's place by having to respond to calls from the high school. Captain Jones recommended that Officer Wright be transferred to Patrol. Captain Jones was not directed by anyone to select Officer Wright. Captain Jones' recommendation was accepted by Captain Clifton. After Captain Jones had recommended that Officer Wright be transferred and Chief Clifton had accepted the recommendation, Captain Ross met with Chief Clifton. During this meeting the question was raised as to whether Officer Wright's transfer might be perceived as retaliation for his having met with Mr. White. The evidence concerning this meeting, however, failed to prove that Chief Clifton made the decision to transfer Officer Wright based upon his involvement in the meeting with Mr. White. Captain Ross was unable to recall exactly who participated in the meeting, whether Chief Clifton made any statement to the effect that his decision to transfer Officer Wright was based in any way on the meeting with Mr. White or whether Chief Clifton was aware of the meeting with Mr. White prior to the decision to transfer or the meeting with Captain Ross. The evidence also failed to prove whether Chief Clifton was informed that Officer Wright had given the Schilling Report to Mr. White or otherwise suggested that the action in the Schilling Report was an example of disparate treatment based upon race in violation of Chapter 760, Florida Statutes. The evidence failed to prove that Officer Wright was transferred to patrol for any discriminatory reason. No complaint was filed by Officer Wright within 365 days of his transfer to patrol alleging that his transfer was for discriminatory reasons. The 1991 Corporal's Eligibility List. Effective December of 1991 a group of officers qualified for promotion to corporal. They qualified for promotion by successfully completing a test and assessment. The officers that qualified for promotion to corporal in 1991 were listed alphabetically on the "1991 Corporal's Eligibility List" (hereinafter referred to as the "Corporal's List"). Respondent's exhibit 11. All of the individuals that qualified for promotion were listed alphabetically. Officer Wright was the last person on the Corporal's list. Inclusion on the Corporal's List meant that each of the individuals listed met the minimum requirements for promotion. Inclusion did not, however, mean that each individual on the list was equally qualified. Some judgment was necessary to decide which individuals on the list were actually promoted absent a need to promote all of the individuals on the list. Officer Wright was one of the individuals listed on the Corporal's List. Pursuant to contract with the union representing employees of GPD, the Corporal's List was valid for an eighteen month period: December, 1991, to May, 1993. There were twenty-six individuals listed on the Corporal's List. Promotions From the Corporal's List. Chief Clifton was provided with information from the Commander in Charge of Personnel concerning each candidate's personnel record, including their annual evaluation scores, training and the length and type of their service at GPD. Chief Clifton was also provided with information from the Internal Affairs Commander concerning each candidate's sustained internal affairs complaints. Prior to January 6, 1992, when the first promotion from the Corporal's List was made, Chief Clifton met with the Commander in Charge of Personnel, the Internal Affairs Commander, the Deputy Chief and the Captains of each division of GPD to discuss the individuals on the Corporal's List. The purpose of the meeting was to allow Chief Clifton to receive input from his command staff concerning the individuals on the Corporal's list. There were more than 200 officers employed by GPD. Chief Clifton was not familiar with all of the officers and, therefore, he looked to his command staff for input. Chief Clifton insists that any comments for or against an officer on a promotion list be supported by specifics. The discussion of candidates on a promotion list can be extensive, lasting two to three hours. Chief Clifton considers comments made by his command staff concerning officers on promotion lists along with the other information he is provided about candidates mentioned in finding of fact 50. Chief Clifton, however, makes the final decision as to which officers are promoted. If someone speaks highly about a candidate for promotion on a promotion list, that individual has a better chance of being promoted. The decision is not, however, a popularity contest in which the person most liked gets promoted. If an individual is spoken highly of by his or her supervisors, it is reasonable that the Chief would give those comments great weight. Chief Clifton asked for comment about each person listed on the Corporal's List. Chief Clifton took the names on the Corporal's List in reverse alphabetical order. Therefore, Chief Clifton first asked if there were any pro's or con's concerning Officer Wright. No one in the meeting made any comment concerning Officer Wright. Chief Clifton repeated Officer Wright's name a second time. Again, there was no response. Chief Clifton then went on to the next name. Of the twenty-six individuals on the Corporal's List, Officer Wright was the only officer that received no comments whatsoever during the meeting to review the Corporal's List. After the meeting with the command staff, Chief Clifton met with Lt. Scott and Deputy Chief Johnston and informed them of his decision. Chief Clifton subsequently made promotions of seventeen individuals on the Corporal's List. The following promotions were made from the Corporal's List: January 6, 1992: Terry Converse, Paul Forsberg, Shelly Grulke, Stephen Kramig and Jeffrey Rouse (or Reese); April 27, 1992: Edward Posey and Larry Seale; November 23, 1992: Mary Birkhold, Mason Byrd, Corey Dahlem, Steve Dean, David Riker, Stephen Weaver and L. Dale Witt; January 4, 1993: Timothy Hayes, Martin Krpan; and March 29, 1993: Edward Legall. Chief Clifton met with Lt. Scott and Deputy Chief Johnston prior to each of the promotion decisions on the Corporal's List. Lt. Scott reminded the Chief during these meetings of the first meeting with the command staff. The last person to be promoted from the Corporal's List was Edward Legall. Officer Wright continued to be eligible for promotion off the Corporal's List until it expired in May of 1993. Officer Wright was not selected by the Chief for promotion from the Corporal's List. Eight other individuals on the list were also not promoted. Officer Wright could not have known that he would not be selected for promotion until May of 1993. Officer Wright has not qualified for any other promotion list. The Basis for Not Promoting Officer Wright. The evidence in this case failed to prove that Officer Wright was not promoted due to his activities on behalf of African American officers. The evidence also failed to prove that Officer Wright was not promoted due to his having given the Schilling Report to Mr. White. Although Mr. White indicated that he would speak to Chief Clifton about the Schilling Report, the weight of the evidence failed to prove whether he actually did. To conclude that Mr. White actually spoke to Chief Clifton would require inappropriate speculation. The evidence also failed to prove that Officer Wright was not promoted due to his having met with Mr. White. One of the other individuals that met with Mr. White, Wayne Ashe, was subsequently promoted to Sergeant in November of 1992. Sergeant Ashe was on the sergeant's promotion list considered at the same time as the Corporal's List. The evidence also failed to prove that Officer Wright was more qualified than any of the officers selected for promotion off the Corporal's List. The only evidence presented by Officer Wright concerning any of the officers promoted was evidence comparing his education with theirs. That evidence indicated that Officer Wright had more formal education than most of the promoted officers. The evidence, however, proved that more than education was taken into account in deciding who was promoted. Also considered by Chief Clifton was: interval affairs history, performance appraisals, service with GPD, the location and circumstances surrounding the position to be filed and input from the Commanders about a candidate's performance, abilities and interaction with other officers. Officer Wright failed to present evidence concerning all of these factors with regard to the officers promoted off of the Corporal's List. Finally, the evidence failed to prove that Officer Wright was denied a promotion because GPD or Chief Clifton perceived Officer Wright as a "racist". I. Officer Wright's Complaint. Officer Wright filed a Charge of Discrimination with the Commission on or about November 11, 1993 alleging that Chief Clifton had subjected him to certain retaliatory actions. In his complaint, Officer Wright suggested that the transfer to patrol and the failure to promote him were retaliatory actions of GPD. On or about July 14, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about August 19, 1994, Officer Wright filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings on August 29, 1994. In his Petition for Relief, Officer Wright alleged that Respondent violated the Florida Civil Rights Act of 1992, as amended, in the following manner: I contend that I was not promoted as a retal- iatory measure resulting from my questioning the Department's commitment to increasing the numbers of African-American police officers. My comments, as reported to me by Deputy Chief Darryl [sic] Johnston, led to be being perceived as a "racist" by command staff, and he further suggested that this perception influenced my not being selected for promotion. Officer Wright also alleged the following "ultimate facts": I allege that discriminatory labor practices occurred by my lack of promotion due to: a) retaliation for raising racial hiring issues, and b) issues of race, whereby command staff's perception of my being "racist" influenced the decision to not promote me. For entitlement, I request the following: a) finding of cause that discrimination did occur, b) promotion, and c) retroactive pay. Officer Wright did not challenge his transfer to patrol in the Petition for Relief.
The Issue The issue is whether Respondent committed an act or acts of age discrimination against Petitioner by not selecting him for promotion to sergeant with the Santa Rosa County Sheriff's Office.
Findings Of Fact Petitioner, Steven L. Boles, was employed at the Santa Rosa County Sheriff's Office in April 2001 as a deputy sheriff. Petitioner's date of birth is June 15, 1958, making him approximately 47-48 years old at all times related to the promotion issues, which are the subject of this proceeding. Petitioner completed 34 college classes while a deputy sheriff and attained a Bachelor's Degree from Troy State University. He was continuing his education towards a Master's Degree during the promotion period at issue. Petitioner had over 20 years' experience in the United States Air Force, during which his duties included managing a 24-person flight, supervising, planning, administering, and executed law enforcement and security training for a 270-person unit. The Florida Department of Law Enforcement recognized Petitioner's qualifications as being equivalent to those required by the State of Florida for certified law enforcement officers. During Petitioner's time as a deputy sheriff, he worked one position besides his road patrol duties. In 2003, he transferred to a property detective position where he served for almost a year. When he did not receive training that he deemed necessary to better perform his job, he transferred back to his road patrol position. Petitioner was certified as an all-terrain vehicle ("ATV") instructor in April 2006. Petitioner did not serve in a supervisory capacity while employed by Respondent. Under Sheriff Wendell Hall's administration, the promotional process for sergeant and lieutenant was established in General Order D-017. Applicants were ranked on an eligibility list based upon their scoring for specific criteria: advanced training courses, formal education, seniority, supervisory experience, written examinations, and an oral review board. Sheriff Hall promoted from the top of the list in order of ranking. The Fraternal Order of Police ("FOP") is the bargaining agent for deputy sheriffs. During collective bargaining negotiations in 2005, the FOP asked Sheriff Hall to change the promotional process to provide greater flexibility in promotions. The FOP believes that the top-ranked applicant is not necessarily the best candidate for an available position. The sheriff and the FOP executed a collective bargaining agreement ("CBA") in 2005 to implement changes in the promotional process that would afford more flexibility. Pursuant to Article 9 of the CBA, the parties agreed that General Order D-017 would be utilized in promotions. To effect the changes requested by the FOP, General Order D-017 was revised in December 2005. The new policy continued to provide that applicants would be ranked based upon scoring for specific criteria, but added field training officer experience ("FTO") as a new category to be scored. Additionally, the policy provided that the division captains and department major would review the promotion roster and provide a written recommendation to the sheriff for promotion of candidates. The sheriff would be provided with the top five names for one vacancy and one additional name for each additional vacancy. The new policy for promotion was provided to the FOP for review prior to its enactment. Pursuant to the CBA, the FOP could request impact bargaining within ten days of receipt of the policy. Because the FOP did not object to the policy, it became effective on December 26, 2005. The revised policy, General Order D-017, was provided to all members of Respondent, including Petitioner. Petitioner was aware that the process had been changed to permit the division captains and the department major to make written recommendations for promotion. Petitioner received a memorandum from Sheriff Hall on February 17, 2006, informing him of his eligibility to sit for the written promotion examination on March 22, 2006. Petitioner learned in that memorandum that credit for training courses and formal education would not be given for anything that had not occurred and was not present in the training office on or before March 10, 2006. When vacancies for sergeant and lieutenant became available in 2006, the promotional process followed the revised policy. Points were allocated to the applicants under the revised criteria, and the top 20 candidates were ranked. Major Steve Collier and Captains Jack Onkka and Jim Spencer met on May 26, 2006, pursuant to the newly-adopted policy, to review the applicants and make promotion recommendations to the sheriff. Because there were six vacancies for sergeant, the top 10 names on the roster were reviewed. Petitioner was ranked number five on the roster. Major Collier and Captains Onkka and Spencer concluded that the primary consideration for the recommendations for sergeant and lieutenant would be the motivation and initiative displayed by the applicants while employed at the Sheriff's Office. Believing that these qualities demonstrate the foundation of leadership, Collier, Onkka, and Spencer discussed each of the applicants to determine who best exemplified these characteristics. Collier, Onkka, and Spencer recommended six applicants who were ranked in the top 10 of the promotional roster: George Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry Salter, and Todd Reaves. Prior to the review by Collier, Onkka, and Spencer, three of these deputies were ranked higher in the roster than Petitioner and three of them were ranked lower. The reviewers selected these six deputies for promotion to sergeant because each had undertaken an assignment outside his normal duties or otherwise had distinguished himself in a manner that set him apart from the other candidates. George Hawkins, ranked number one on the roster, was recommended as a result of his field officer training experience. Further, he performed as an acting supervisor when the shift sergeant was absent, which the reviewers deemed significant. Field officer training was particularly valued by the reviewers because it required the deputy to serve as a front line supervisor for trainees as well as an instructor and mentor. Joseph Dunne also had performed field officer training and consistently volunteered for special operations projects that were after hours. William Dunsford, although not a FTO, was a member of the hostage negotiation team and, pursuant to this assignment, was on-call 24 hours a day, seven days a week. Similar to Dunne, Dunsford volunteered for special operations after hours. He particularly impressed Major Collier with noteworthy arrests and for his high level of professionalism and motivation. Wayne Enterkin was recommended as a result of his field officer training experience and his initiation of the drug court officers program, which involved juvenile offenders. He particularly distinguished himself in the drug court program. Jerry Salter was recommended as a result of field officer training experience and his assignment to the special weapons and tactics ("SWAT") team. As in the case of hostage negotiators, SWAT team members must undergo additional tactical training and are on-call 24 hours a day, seven days a week. They must also maintain a high level of physical fitness to participate in this unit. Todd Reaves was recommended because of his field officer training experience and his participation on the hostage negotiation team. Reeves also made noteworthy arrests in the northern part of the county, which was not a particularly busy area. Reeves had also received a lifesaver award for his extraordinary actions in providing care to a canine officer who was shot by a suspect. Petitioner was not recommended because the reviewers were not aware of any activities and assignments that set him apart from the other candidates. They were unaware of the fact that Petitioner had become certified as an ATV instructor, since that occurred on April 21, 2006, after the March 10, 2006, information deadline. The reviewing panel would not have given as much credit for Petitioner being an ATV instructor, even if his certification had occurred before March 10, 2006, since this activity did not require as much of a time commitment as a field training officer, hostage negotiation team member, or SWAT team member. The panel also passed over William Bass (ranked number two on the roster) and Christian Turcic (ranked number seven). Deputy Bass was deemed not particularly motivated and refused a transfer to a busier district when it was offered. Deputy Turcic was passed so he could complete his new assignment as a trainer of a new dog. Once he completed his assignment, he received a promotion to sergeant in September 2006. The age of the candidates for promotion was not a topic discussed by the reviewing panel. Sheriff Hall promoted Deputies Dunne, Dunsford, Enterkin, Hawkins, Reeves, and Salter in June 2006. He based his decision to promote these deputies upon the recommendations of his staff without regard to their age. When Petitioner became aware of the identities of the promoted deputies, he tendered a brief letter of resignation, dated June 15, 2006, in which he stated that his total loss of faith in the administration caused the need for him to leave immediately. Petitioner followed the brief letter with an email to Sheriff Hall on June 16, 2006, in which he elaborated on his qualifications and justifications of why he should have received a promotion to sergeant. Petitioner informed Sheriff Hall that he believed a "good-ol-boy system" was in place in the Santa Rosa County Sheriff's Office. In his letter and email resigning from Respondent, Petitioner made no mention of his age as a factor in his failure to be promoted to sergeant. Petitioner never inquired as to why he was not promoted. He met with Sheriff Hall, who informed him that he could be considered for promotion at a later date and encouraged him to contact Major Collier. Petitioner never spoke with Major Collier regarding his failure to be promoted to sergeant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Steven L. Boles 262 County Road 617 Hanceville, Alabama 35077 Robert W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32308 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, a certified law enforcement officer, committed the various acts of misconduct described in the Amended Administrative Complaint, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent's certificate.
Findings Of Fact Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. Respondent was certified by Petitioner as a law enforcement officer on March 12, 2003, and issued certificate number 229917. Respondent resided in Riviera Beach, Florida, for a portion of his childhood. During this time, he developed a friendship with Frederick Maurice Dean ("Dean"). He was also acquainted with Hasani Thomas ("Thomas"), although not as closely as with Dean. Respondent and Dean spent time together on a daily basis and their relationship continued as their lives took divergent routes. After graduating from high school, Respondent attended college out of state and then returned to Riviera Beach and earned his A.S. degree at the local community college. Respondent continued with his studies at Florida Atlantic University. While working for the City of Riviera Beach in a civilian capacity, Respondent remained personally close with Dean and attempted to help Dean obtain employment. While enrolled at the local policy academy, on September 3, 2001, Respondent was hired by the Riviera Beach Police Department ("RBPD"). Respondent's initial assignment with RBPD was to the road patrol. The intersection of 33rd Street and Old Dixie Highway, the location of the Worldwide Grocery Store ("Worldwide"), was within his area of patrol. In 2003, the Drug Enforcement Administration ("DEA"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an operation entitled "Operation Worldwide." The purpose of Operation Worldwide was to eradicate a gang or group of individuals involved in various crimes including murder, drug trafficking, and robbery. The targets were believed to be congregating around, and conducting their activities, in part, from, Worldwide. As part of the plan, the FBI utilized confidential informants to purchase drugs from the targeted group. Additionally, Operation Worldwide sought to conduct surveillance by placing video cameras in covert positions. Initially, one camera, which was not visibly apparent, was installed on a pole in a position to observe the activities at Worldwide. This installation proved ineffective, as it was vandalized with spray paint after the second day of operation. In response, a second video camera was installed in the same capacity at a greater distance from the Worldwide; however, that camera similarly proved ineffective as the location was apparently disclosed or discovered by the criminal subjects. Operation Worldwide concluded in 2005 when a grand jury issued federal indictments and arrest warrants for multiple targets of the operation. Three particular targets and their respective post-arrest statements are pertinent to the instant action, and are addressed seriatim. On May 12, 2005, Hasani Thomas, a previously convicted felon, was federally indicated on distributing a Schedule II controlled substance, and having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessing a firearm in and affecting commerce. A warrant was issued and he was arrested by U.S. Marshals on August 11, 2005. Post-arrest, Thomas, cooperating with law enforcement, made several allegations concerning Respondent. He provided that Respondent and Dean were close friends. Dean had advised Thomas that he was wanted based on information obtained from Respondent. Thomas also alleged that Respondent had disclosed the location of the surveillance cameras at Worldwide to Thomas. Dean, Respondent's friend and a previously convicted felon, was federally indicted on two counts of distribution of crack cocaine and a warrant was issued for his arrest on May 12, 2005. Dean was arrested by U.S. Marshals on August 14, 2005. The day following his arrest, Dean was interviewed by FBI Special Agent Steven Burdelski. Prior to the interview, Dean was informed of why he was being interviewed and the federal charges he was facing. Post-Miranda, Dean admitted to being a seller of drugs, including cocaine, and that he made his living by selling drugs. He further admitted to selling crack cocaine at Worldwide and gave the name of the individual who supplied him with his drugs. Dean was then told by his interviewer that agents were aware he was friends with Respondent and that they wanted to learn what Dean knew about Respondent and specifically what Dean knew about any criminal activity in which Respondent may be involved. Dean subsequently provided numerous allegations concerning Respondent. Specifically, Dean contended that Respondent had encountered Dean at the Palm Beach Mall approximately three months earlier and advised Dean that federal law enforcement officers were looking for him, that they were going to give him "a lot of time," and that he needed to lay low. Dean further advised that Respondent would advise Dean and other drug dealers at Worldwide if law enforcement was planning an operation, the type of vehicles being utilized by law enforcement, and that a camera was observing their activity at Worldwide. Additionally, Dean advised that on several occasions Respondent had provided drugs to Dean in return for cash. Based upon the information received, on August 15 and 16, 2005, several controlled recorded phone calls were attempted and completed by and between Dean and Respondent. During the course of one of the recorded calls, Dean inquired as to whether "his picture" was up at the police station. Respondent advised Dean that he had not seen his picture and that he had not heard anything specifically about Dean. Dean and Respondent further discussed that law enforcement had "busted" Thomas and that law enforcement was serious. Dean stated that Respondent had warned Dean and that he was laying low. The conversation turned to the topic of cameras at Worldwide. Dean asked Respondent whether there was a camera installed at Worldwide. Respondent initially responded that he did not know and that the owner of the store, Mike, was doing some rebuilding at the store. Dean then asked again if the camera was still up at the store. Respondent stated, "You know those mother fuckers got everything over there boy." To which Dean replied, "I know bitch people got to be careful over there." Respondent further stated that, "They got everything, they got everything and your momma over there boy." When asked by Dean if law enforcement had taken down the big camera, Respondent advised that he did not know, but they were "cleaning up the neighborhood." Finally, Dean requested Respondent to use his connections and determine whether there were pending charges against Dean. Respondent unequivocally advised Dean that he could not do so as he was not President Bush. Adrian Henderson, a convicted felon, was arrested in 2006 on felony narcotics charges. Henderson, in a federal proffer statement, alleged that Respondent advised individuals at Worldwide concerning the location of the cameras and, upon request, would run Henderson and Dean's name through "the system" to determine if there were outstanding warrants. Thomas, Dean, and Henderson in subsequent statements made numerous allegations concerning Respondent's assistance, participation, and acquiescence to the drug activities being conducted at Worldwide.3/ Those allegations included, but are not limited to, the following: allowing Thomas to conduct cocaine transactions in Respondent's presence; advising the details of surveillance camera placement; Respondent's encountering Thomas and advising him that U.S. Marshalls had a picture (warrant) concerning Thomas and Dean, but failing to arrest; Respondent's providing Dean crack cocaine and marijuana for cash; failing to arrest individuals close to Worldwide; Respondent's advising when the drug task force was operating in the area; Respondent's advising of the make and model of surveillance vehicles; Respondent's checking for warrants and advising if a warrant existed, but not arresting the individual. After obtaining the initial 2005 post-arrest statements from Thomas and Dean, FBI Agent Steven Burdelski provided the information concerning Respondent's alleged involvement to RBPD for an internal investigation. Additionally, the information was reviewed with the United States Attorney's Office. The United States Attorney's Office determined that it would not proceed with criminal prosecution of Respondent. Captain John Mammino was involved with the internal affairs investigation of Respondent. In addition to reviewing the initial statements, in 2006, he conducted interviews of Dean, Thomas, Henderson. In 2009, the Palm Beach County State Attorney's Office formed a public integrity unit. Captain Mammino desired that State Attorney's Office review the case concerning Respondent, and, therefore, conducted another round of interviews with Thomas, Dean, and Henderson. The entirety of the information was provided to the State Attorney's Office, and they also declined to prosecute Respondent. Thereafter, an investigation was conducted in an effort to corroborate the allegations that Respondent provided warrant information to Dean. The Florida Crime Information Center ("FCIC") and the National Crime Information Center ("NCIC") databases are used for obtaining criminal history information. FCIC is the central repository for all criminal histories within Florida. Users in Florida must become trained and certified through the Florida Department of Law Enforcement ("FLDE") instructors. Respondent was certified to access FCIC/NCIC on July 1, 2003. Warrant information is placed into the FCIC/NCIC database by law enforcement agencies, and such information is not available to the public. The FCIC/NCIC database is not to be used for any non law-enforcement related purpose. A certified user may access FCIC by logging in with an individual password and user name. A computer database, the Transaction Archive Reporting ("TAR") database, keeps a record of all queries within the FCIC system. FDLE maintains the TAR system, and same may be searched to produce records of an individual's queries or transactions. The reports generated from such a search are called TAR reports. A search was conducted of the TAR database for any FCIC queries concerning Dean. A review of the TAR reports generated from the search revealed that Respondent accessed FCIC and manually inputted the first name, middle name, last name, date of birth, sex, and Florida Driver's License number of Dean on three occasions: October 7, 2003, October 17, 2003, and November 30, 2003. These searches would have revealed whether Dean had any outstanding warrants. Dean had no warrants outstanding on the above-referenced dates. On June 30, 2010, over five years subsequent to the above-referenced arrests, Respondent participated in a sworn interview with RBPD Internal Affairs. During this interview, Respondent was asked whether he ever ran Dean's name through the system. Respondent initially replied, "No. I never ran Freddie (Dean) through." After being advised, for the first time, of the results of the TAR reports, he stated that he did not remember running Dean's name: Officer Lewis: We pulled records from the FDLE database. It showed records showing on October 7th, 2003 at 4:03 p.m., that you ran Freddie Dean for warrants through FDLE's database. Respondent: I ran them or Tina Hall ran them? Officer Lewis: It actually listed your name. Respondent: I must have made an arrest on him for possession of marijuana. Officer Lewis: There was another one ten days later at 9:53 for the same person, Frederick Dean. Do you recall that? Respondent: No, sir. Officer Lewis: On November 30th, 2003 at 1:15 p.m. the same ran through the system, Frederick Dean for warrants. Do you remember that? Respondent: No, sir. Additionally, during the internal affairs interview, Respondent advised that he used certain "scare tactics" to prevent or disperse criminal activity. He would advise individuals that the "jump-out boys" (narcotics tactical unit) were coming or advise that cameras were everywhere to clear the area. RBPD Officers Derrick Jackson, Gary Wilson, and John Toombs confirmed the use of such tactics. These officers credibly testified that, due to a shortage of manpower, at times they would implement certain techniques to encourage known narcotics dealers to leave an area of the street. These techniques varied from simply sitting in the patrol car in close proximity, advising subjects to leave, advising subjects they would be arrested, approaching the subjects, and suggesting the tactical unit was out. During the June 30, 2010, internal affairs interview, Respondent was also asked about the allegation that Respondent encountered Dean at the mall after the federal warrant had been issued for his arrest. The pertinent dialogue is set forth as follows: Officer Lewis: That is when you were at the mall, when you saw him when he was wanted? You knew that he was wanted, but you didn't call. And you stated that was because you didn't know the right thing to do at the time? Officer Gordon: Yes. Plus the safety of my son too. And the way he was acting, really, really bothered me. Officer Lewis: How was he acting? Officer Gordon: He smelled of--he reeked of marijuana and alcohol. You could smell it coming from him. His eyes were bloodshot and he was just, "I ain't trying to go back to jail--I ain't going back to jail." Is pretty much what he said. . . . Officer Gordon: . . . He (Dean) was looking to see if I was going to pick up my phone and call-- Freddie Dean--the guy you are looking for-- is in the mall right now, blah blah blah. . . . Officer Lewis: He wanted to see if you would dime him out? Officer Gordon: Exactly. Officer Lewis: But you didn't? Officer Gordon: Unh-uh (indicating negative). At the final hearing, Respondent initially testified that he did not know a warrant was active for Dean when he encountered Dean at the mall. Respondent conceded, however, after listening to the recorded internal affairs interview, that he was aware of a warrant for Dean during the mall incident. The undersigned finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent directly participated in or condoned illegal drug activity. Similarly, the undersigned finds the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised said individuals or other potential criminal targets of the placement of the Operation Worldwide surveillance cameras. The undersigned further finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised the criminal targets of when and where narcotics operations were to occur. Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30, 2003. Petitioner established, by clear and convincing evidence, that Respondent encountered Dean after the federal warrant was issued for Dean. At the time of the meeting, Respondent was aware of the warrant, and took no action to notify any members of the law enforcement community of Dean's recent location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 11, 1983 and issued Certificate Number 502-3844. The Respondent was a correctional officer with the Palm Beach County Sheriff's Office beginning in January 1983. On August 27, 1986, the Respondent resided with Ms. Burton (who has subsequently married Respondent and is now known as Elaine Burton Edwards) and two of her children. One of her children, Karl McInis ("Karl") was twenty three months old at the time and he was in the process of being toilet trained. On August 27, 1986, the Respondent discovered that Karl had "messed" on the floor and/or in his pants. The Respondent felt that the child's actions were deliberate and that the child needed to be disciplined. Therefore, Respondent struck the child fives times with a leather belt. There is a dispute as to the type and size of the belt used. While Petitioner contends that Respondent used his heavy Sheriff's Deputy belt, the greater weight of the evidence indicates that Respondent used a typical men's trousers belt. As a result of the discipline described in paragraph 5 above, Karl suffered bruises on his buttocks and legs. Subsequent to the incident, the child was removed from the home by HRS. He currently resides out of state with his grandparents. Criminal charges were brought against Respondent after HRS reported the incident to the police. However, after Respondent successfully completed a counseling program as part of a pre-trial intervention program, the charges were nolle prossed on November 10, 1988. As a result of his arrest, Respondent was suspended from his job at the Palm Beach County Sheriff's Department pending the outcome of the criminal case. Respondent has not been reinstated. After completing the counseling program, Respondent altered his methods of disciplining his children. On most occasions, Respondent has refrained from using corporal punishment and instead attempts to apply the assertive discipline procedures he learned in the counseling program. However, Respondent admits that on a few occasions when he felt the children did not respond to the assertive discipline techniques, he has resorted to corporal punishment. On March 2, 1989, Respondent disciplined one of his children, Julius Edwards, by striking him five times on the palms of the hands with a belt. At the time of the incident described in paragraph 10, Julius was five years old. Julius and at least one other sibling from Respondent's previous marriage were living with Respondent and Ms. Burton. Respondent punished Julius because he felt the child was deliberately engaging in a pattern of obstinate conduct in an attempt to be returned to the custody of his natural mother. That conduct included eating excessive amounts of food after being instructed not to. During the punishment, Julius struggled and at least one of the blows landed on his arms. As a result of the punishment, Julius had bruises on his arms which measured approximately four inches long and one inch wide. As a result of the corporal punishment administered by Respondent to Julius, Respondent was arrested and ultimately adjudicated guilty of a misdemeanor for violating Section 827.04, Florida Statutes (child abuse) on March 29, 1989 in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, in case no. 89-5869MMA08. As a result of this conviction, Respondent was required to undergo additional counseling. While the bruises suffered by the children in the two incidents described above are significant cause for concern, neither of the children required medical attention. At the time of both of the incidents in question, none of the other children evidenced bruises, they all appeared well-fed and there was no other evidence of any neglect. Indeed, the evidence reflects that the Respondent is a dedicated and caring father. He is extremely concerned about the many negative influences that affect children in our society. As a result, he believes it is important for him to discipline the children in an attempt to ensure that they choose the right path in life. Respondent contends that he was raised with a similar type of discipline and finds it difficult to understand the commotion caused by his attempts to discipline his children in the manner in which he was raised. While his motives are good, he has used very poor judgment in certain situations and imposed excessive punishment given the age of the children and the nature of their behavior. Respondent has aspired to be a law enforcement officer since his high school days. He has spent hundreds of hours as a volunteer for various school projects and programs involving children. He has strived hard to be a good role model and an active member of his community. However, he needs to temper his concerns and enthusiasm with more sensitivity to the rights of others. There is no indication of any deficiencies or problems in Respondent's job performance. Indeed, the only evidence introduced regarding his performance as a law enforcement officer indicated that he was dedicated, concerned and responsible.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order placing Respondent Glenn S. Edwards' correctional officer certification on probation for a period of two years and requiring him to complete an appropriate counseling program for parents while refraining from any further violations of Section 943.13(1)-(10). DONE AND ENTERED this 10th day of April 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 10th day of April 1990.
Findings Of Fact Except to the extent they are consistent with these Findings of Fact, all proposed findings of fact are rejected as either not supported by competent, substantial evidence, contrary to the greater weight of the evidence or irrelevant. On November 6, 1974, LaRosa was granted a Florida Teacher's Certificate and subsequently was employed by the Duval County School System. On October 24, 1975, LaRosa failed to appear at 3 a.m. for work as a substitute teacher in the P.E. Department at John Gorrie Junior High School. After having been involved in a car accident the night before and not having gotten to sleep until 5 a.m., LaRosa overslept and therefore did not notify the school board that he would be absent or advise the school of the reason for his failure to appear for class until noon that day. On or about February 25, 1976, LaRosa was convicted in Duval County, Florida, of driving while intoxicated on the previous February 15. He was fined $200, and his driver's license was suspended for three months. On June 9, 1976, LaRosa was arrested in Duval County, Florida, for driving while intoxicated on that day. On or about July 2, 1976, LaRosa was convicted in Duval County, Florida, of having driven while intoxicated on June 9, 1976. He was sentenced to ten days in the Duval County Jail. LaRosa's convictions, set forth above, were considered by the Professional Practices Council of the Department of Education. The Council found "no probable cause to believe that the certificate be revoked or suspended at this time . . . and a letter of warning regarding repeated offenses be directed to the educator." By letter dated September 23, 1976, the Council warned LaRosa against future conduct that would reduce his effectiveness as an educator. Subsequent to the events set forth in the proceeding Findings of Fact, LaRosa left the teaching field and his certificate lapsed. From 1978 to the present, he has engaged in a number of employment positions unconnected with the field of education. On or about May 5, 1981, LaRosa was arrested for disorderly intoxication and public disturbance in Duval County, Florida. He subsequently was convicted on his plea of guilty and sentenced to 15 days' suspended sentence with six months' probation. In or about September, 1981, LaRosa was arrested for disorderly intoxication in Duval County, Florida. On November 18, 1981, be was convicted of that offense and violation of the probation alleged in the preceding paragraph. The court sentenced LaRosa to 68 days in jail (58 days were suspended) and given six months' probation for that offense, as well as for the violation of probation with regard to the previous offense. On or about July 6, 1982, LaRosa was convicted in Duval County, Florida, for driving while intoxicated during the previous March. He was sentenced to 38 days in jail. LaRosa's Application for Teacher's Certificate was received by DOE on August 26, 1982. The application reflects that it was signed by LaRosa and that be swore and subscribed to its accuracy before a notary public on August 20, 1982. In the application, LaRosa was asked the following question: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? The application then provided spaces for a yes/no response and asked for details about any arrests, dates, nature of charges and dispositions. LaRosa's August 28, 1982, response to the foregoing question was simply that he had been arrested in "Jax Fla" and that the nature of the charge(s) was "DWI." LaRosa failed to include any further statement about the nature of his charges, and he did not include any information or reference to the dates and dispositions of the arrests and convictions set forth in the preceding paragraphs. On February 25, 1983, LaRosa was convicted in Duval County, Florida, of driving while licensee was suspended in December 1982. He was sentenced to 68 days in jail with 58 days suspended and was placed on unsupervised probation. LaRosa was not intoxicated at the time of his arrest. At the time of the arrest for this incident, the police administered a field sobriety test, which LaRosa passed. The arrest report states that LaRosa bad been drinking. LaRosa denies that he had been drinking. But the circumstances were suspicious and, coupled with the police officer's observations, prevent me from finding that LaRosa was not drinking. Since LaRosa has the ultimate burden of persuasion, I find that he had been drinking immediately prior to the time of his arrest. In a letter dated May 26, 1983, LaRosa responded to a letter from Professional Practices regarding his admission of "DWI" arrest on Section V of the Application for Teacher's Certificate. In his letter, LaRosa wrote: The explanation of my charges are as follows: Driving while under the influence of alcohol. Driving on a suspended license. Public intoxication. I was sentenced 18, 38, and 68 days for these offenses. On October 6, 1983, LaRosa was again convicted in Duval County, Florida, for driving while license was suspended. For that offense, LaRosa received a 38-day suspended sentence and a $25 fine. When LaRosa was stopped by police, he at first misstated his name but was not intoxicated. At the time of the arrest, LaRosa again was given and apparently passed a field sobriety test. LaRosa denies having been drinking. But, again, the circumstances were suspicious, and the police arrest report contains a statement that the policeman thought LaRosa bad been drinking. Therefore, I find that LaRosa had been drinking just before the time of his arrest. LaRosa claims that be stopped drinking in August, 1982, after being released from jail, and that he has not been drinking since. As stated, I find his claim not to be completely accurate. He attended Alcoholics Anonymous meetings at least twice a month during the year 1982 and attended eight to ten meetings in 1983. At the time of the final hearing, LaRosa had not been to an AA meeting in four months. LaRosa's personal conduct, set forth above, seriously reduces his effectiveness as a teacher. Mr. Nolan G. Gillmore, Secretary Staffing Supervisor for the Duval County School Board, gave opinion testimony in the area of education and personnel administration in Duval County and the State of Florida and in the area of effectiveness of teachers. Mr. Gillmore is of the opinion that, at this time, LaRosa's conduct would disqualify him from being a person the Duval County School System would hire as a teacher. Mr. Gillmore also is of the opinion that, at this time, LaRosa could not be an effective teacher because of the effect of his conduct on his relationship with his students and that be would have difficulty in his relationships with his fellow teachers and the community. Finally, Mr. Gillmore opined that, upon the evidence DOE presented at the final bearing, the Duval County School System would move to terminate LaRosa if he were a teacher in the system. LaRosa concedes to wrongdoing and says he would "take a two-year suspension." He thinks he has rehabilitated himself from his drinking problems and thinks be can be a good teacher. So does his friend, Paul Galloway, who is a teacher and has taught with LaRosa in the past. But, Mr. Gillmore's testimony was more persuasive than the testimony of LaRosa and Galloway.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission deny this application of Anthony W. LaRosa for a Florida Teacher's Certificate. RECOMMENDED this 15th of March, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1984. COPIES FURNISHED: Mr. Anthony W. LaRosa 3554 College Place Jacksonville, Florida 32204 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
