The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. him. If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.) The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week. Included in the report is the number of written warnings and faulty equipment notices issued by the trooper. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices: Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices." Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
The Issue Whether the Respondent's suspension of Petitioner was in compliance with Chapter 110, Florida Statutes, and Chapters 22A-7 and 22A-10, Florida Administrative Code. Whether the Respondent's suspension of Petitioner should be sustained.
Findings Of Fact C. R. Dykes is a State Trooper employed by Respondent, Department of Highway Safety and Motor Vehicles, in the Division of Florida Highway Patrol in Pensacola, Florida. By certified mail letter dated September 30, 1977, Trooper Dykes, the Petitioner, was notified that he was being suspended for twenty-four (24) hours (three work days) without pay by the Respondent, Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, for: Conduct Unbecoming a Public Employee and Negligence of Duty, as a result of your failure to accept witness subpoenas, and your contact with civil deputies of Escambia County, Florida . . . (Y)ou failed to accept witness subpoenas and repeatedly used profanity when discussing these subpoenas with civil deputies of Escambia County. Trooper Dykes appealed this suspension. Petitioner presented testimony and documentary evidence that at least on one occasion the Respondent did not appear for a contested hearing before the County Court of Escambia County after a witness subpoena had been issued for him and the subpoena was served on Respondent by leaving it with Operator Wise at the distribution center at the Patrol Station. The subpoena was not picked up by the Respondent and the Respondent informed the court that he had not received the subpoena. On July 6, 1977, Trooper Dykes was served with a Grand Jury subpoena by Lieutenant G. C. Wiggins and Sergeant W. A. Clark who supervised Trooper Dykes and the other State Troopers in the Pensacola District. Personal service was deemed necessary. Testimony was entered that because of previous difficulty in serving subpoenas upon Trooper Dykes in the customary manner by having the Troopers pick up their subpoenas from the Radio/Teletype Operators of the Pensacola Florida Highway Patrol Station, Deputy D. L. Roland, Escambia County Sheriff's Office, served a witness subpoena upon Trooper Dykes by serving it at Trooper Dykes' home through his wife, Mrs. Dykes, who accepted service with no apparent objections at 1:30 p.m. on Friday, July 22, 1977. Trooper Dykes called Sergeant Vince Seely, now Lieutenant Seely, thereafter at 4:00 pm, on July 22, 1977, to complain about the witness subpoena served at his home address rather than at the Florida Highway Patrol Station. Lt. Seely testified that during the telephone conversation Trooper Dykes yelled into the telephone, cursed Lt. Seely and the Sheriff's Office, made unfounded accusations, and displayed unprofessional behavior, attitude, and lack of cooperation. The Respondent contended that the telephone conversation was strictly between Sergeant Seely and the Respondent; the service of the subpoena was not urgent; that 1:15 p.m. is not a reasonable time of day for a person working from midnight to 8 o'clock in the morning; that the birth of a child was imminent; and that the subpoena could have been left at the station rather than have been served at his home. There was some evidence presented that the Respondent "gave the dispatchers a hard time who informed him they had a subpoena for him."
Recommendation Sustain the agency action of suspension of Petitioner for the period of 24 hours without pay. DONE and ORDERED this 6th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 6th day of April, 1978. COPIES FURNISHED: C. R. Dykes 644 Timber Ridge Road Pensacola, Florida 32504 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Kirkman Building Tallahassee, Florida 32304
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 08-90-002-02, which was issued December 7, 1990. Respondent was born June 12, 1966. He was raised in the Harlem area of Clewiston. Everyone knows each other in the Harlem area, which contains a predominantly black population of 3000-4000 persons. Since he was six years old, Respondent's best friend was John Gowdy. They are the same age and grew up in the same neighborhood. Together, they went to school, worked, and played sports. Respondent was a well-known football player when younger. Respondent and John entered the military at about the same time. Once he finished high school, Respondent realized that there was not enough money for him and his sisters to go to college, so he joined the Air Force. He served for nearly six years without any problems and received an honorable discharge. He immediately entered the Florida Highway Patrol academy. In the meantime, John Gowdy had entered the banking profession and moved to the Miami area. Respondent successfully completed the academy on December 7, 1990. He was immediately assigned to the Florida Highway Patrol post in Ft. Myers and began the required one-year probationary period. On August 14, 1991, about eight months after joining the Florida Highway Patrol, Respondent's sister told him that their mother was ill with heart trouble. Respondent had been working evenings, so, after work, he drove from Ft. Myers to Clewiston, arriving at his mother's house in the morning. After taking her to the doctor's office and getting her medicine, Respondent was at home with her when Shelton Gowdy drove up and asked if he could service the transmission on Respondent's car. Shelton was John's younger brother. Shelton has twice served time in prison. Though they were not friends, Respondent allowed Shelton to earn some money by working on Respondent's car whenever he was in Clewiston visiting his mother or the mother and family of Shelton and John Gowdy. Respondent told Shelton he could take Respondent's car and service the transmission. Shelton drove the car to his mother's house to work on the car. Later in the day, Respondent went to the home of Shelton's mother and checked on his car. Shelton said that he needed a light bulb to fix a parking light, so Respondent allowed Shelton to drive the car downtown to get the bulb. In the meantime, Respondent talked to Shelton's mother and sister, with whom Respondent has remained close over the years. Respondent watched television with them and was not particularly concerned that Shelton was gone several hours with the car. While driving Respondent's car, Shelton picked up Norman Banks and, while cruising, noticed a white couple driving a pickup truck in the Harlem area, near the home of Respondent's mother. Respondent, Shelton, and Mr. Banks are black. The white couple were undercover deputies of the Hendry and Collier County Sheriff Departments. The pickup truck and Respondent's car pulled over to the side of the road, side by side. Respondent's car was mostly still in the road. The two vehicles were about three or four feet apart. The driver of the truck remained in his seat, which was considerable higher than the seats of the passenger car. The driver of the truck was closest to the car's front passenger window. Shelton got out of the driver's side of the car, walked behind the car, and approached the driver of the truck. Quickly, they negotiated the sale of crack cocaine from Shelton to the undercover deputy. Just as quickly, the transaction ended and the deputy drove away. The deputy driving the truck later identified Respondent as the passenger in the car driven by Shelton. The deputy on the passenger side of the truck could not see Shelton's passenger. The lighting was poor. The deputy driving the truck could not closely scrutinize the passenger because he had to remain alert to possible trouble from the approaching driver, as well as possible unseen assailants elsewhere in the vicinity. The deputy who identified Respondent did not seem credible as a witness. He seemed ill at ease and nervous while testifying. He originally identified Respondent in a photo lineup. When shown a photocopy of the same photo lineup during his deposition, the deputy declined to identify Respondent, though he claimed that the quality of the photocopy did not prevent him from identifying Respondent. Even after being assured by Respondent's counsel that Respondent would not hold the deputy liable for a misidentification, the deputy continued to refuse to make the identification and insist on the original photographs, despite claiming that he recognized the passenger from the photocopies of the photographs. Although the deputy who identified Respondent denies seeing a baseball cap on the passenger, someone besides Respondent mentioned a cap to the Florida Highway Patrol internal investigator who later conducted the internal investigation. He recalls that someone said that the passenger wore a baseball cap, possibly turned around backwards. Mr. Banks typically wears a baseball cap backwards. The internal investigator reports reliably that Respondent was very nervous during an interview. However, Respondent was still on probation and aware that he was under investigation for some offense, but he was unsure of the nature of the offense. The internal investigator reports less reliably that Respondent was evasive during the interview. In fact, Respondent's inability to recall what he was doing on August 14 was because he had not been previously told of the specific allegations, including the date of the alleged offense. The important facts of the case are that the passenger in the car with Shelton was very dark skinned. Respondent is very dark skinned. The identification by the white deputy, in poor lighting, is further undermined by the different heights of the vehicles, the brevity of the transaction, and the urgency of remaining alert to possible dangers from any direction. The identification by the deputy is also undermined by his refusal to identify Respondent in a photocopy of the photo lineup, despite saying that he could do so. The uneasiness of the deputy during testimony could be due to any of a number of factors, such as growing concern over the accuracy of the identification. Respondent's testimony was straightforward and honest. His alibi witnesses were obviously biased in his favor and may have supplied facts that they never knew or no longer recall. For instance, they both testified that Shelton returned before 9:00 pm when the transaction likely did not take place until shortly after 10:00 pm. Petitioner's case is not aided by the general circumstances. Respondent does not appear to have gotten into much trouble during his life, including for nearly six years under close supervision in the Air Force. To the contrary, by all indications, he appears to have been an honest, hard-working, and purposeful young man. Yet, Petitioner suggests that Respondent, having recently become a Florida Highway Patrolman, would sit as a passenger in his own car, allowing a twice-convicted person to drive in search of a drug deal. Moreover, Petitioner suggests that Respondent, with his side window open, would accompany Shelton on his criminal errand in the neighborhood where Respondent's mother lives and where Respondent is known to most of the residents. Petitioner never deals with the incongruity of this proposed behavior by a person of Respondent's apparent character. A person so stupid or disturbed as to attempt what Petitioner suggests almost surely would have stumbled much earlier in life.
Recommendation It is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on April 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 21, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-5: rejected as subordinate. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as irrelevant as this fact was not known to Respondent. (except last sentence): rejected as recitation of evidence. 8 (last sentence)-12: adopted or adopted in substance. 13: rejected as subordinate. 14 (first sentence and first clause of second sentence): adopted or adopted in substance. 14 (remainder)-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 17: adopted or adopted in substance. 18-23: rejected as subordinate. 24: adopted or adopted in substance. 25: rejected as subordinate. 26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as subordinate and recitation of testimony. 28: adopted or adopted in substance. 29-34: rejected as recitation of evidence. 35-36: rejected as subordinate. 37: adopted except to the extent that she and Respondent were together during the time of the drug deal watching television. 38 (first sentence): adopted or adopted in substance. 38 (remainder): rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 39: rejected as recitation of evidence. 40: rejected as subordinate. 41-43: adopted or adopted in substance except that the evidence is that he was nervous but not evasive. The information received indirectly from Officer Gary was enough only to alert Respondent that he was in some sort of trouble, not enough to alert him to the specifics of the allegations so that he could have been prepared to rebut the charges. By this time, Respondent probably knew that Shelton had used Respondent's car for a drug transaction and thought that Respondent would be in trouble for that. 44-55: rejected as recitation of evidence and subordinate. 56: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 57-58: rejected as irrelevant. 59: rejected as unsupported by the appropriate weight of the evidence and subordinate. Rulings on Respondent's Proposed Findings 1-9: adopted or adopted in substance. 10-11: rejected as subordinate and recitation of testimony. 12-15: adopted or adopted in substance. 16-17: rejected as subordinate. 18-19: rejected as recitation of evidence and subordinate. 20-22: adopted or adopted in substance. COPIES FURNISHED: A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Nancy C. Waller Regional Legal Advisor Florida Department of Law Enforcement 4211 North Lois Ave. Tampa, FL 33614-7774 Douglas L. Wilson The Wilson Law Firm 680 Sanctuary Rd. Naples, FL 33964-4837
Findings Of Fact J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
