Findings Of Fact At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing. When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda. Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit. In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance. With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car. During the chase Vayda had no information to lead him to believe suspect was other than a speeder. As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol. Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977. Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by falsifying official records of the Florida Highway Patrol with intent to mislead her supervisors in violation of Section 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Between March 13, 1987, and July 9, 1987, Respondent was a law enforcement officer certified by Petitioner. All events incident to the findings of fact in this Recommended Order occurred while Respondent was working in the ordinary course of her employment as a Florida Highway Patrol trooper in Miami, Florida. On April 7, 1987, Respondent stopped motorist Donald McCarron for driving a vehicle with an expired tag. Respondent issued Mr. McCarron a correction card for driving a vehicle with an expired tag but did not issue motorist McCarron a written warning. Respondent claimed both a correction card and a written warning as work activity in her weekly report to her supervisor. On June 23, 1987, Respondent stopped motorist James Merklein for speeding. Respondent issued Mr. Merklein a citation for speeding. Mr. Merklein did not have his vehicle registration in the car. Respondent verbally warned Mr. Merklein to carry his vehicle registration in the car, but did not issue motorist Merklein a written warning. Respondent claimed both a citation and a written warning as work activity in her weekly report to her supervisor. The existence of incidents in addition to those involving motorists Merklein and McCarron was not established by competent and substantial evidence. One or two incidents in which Respondent failed to give correction cards and written warnings to motorists is not clear and convincing evidence of lack of good moral character. 2/ Respondent admitted to Lieutenant John C. Baker that she "on occasion" writes warnings and cards, leaves them in her patrol car seat, and forgets to give them to the violator. Such occasions occur only when Respondent has given a motorist a lengthy explanation. The record does not reflect that Respondent admitted to additional incidents alleged to have been documented by Sergeants Alvarez and Pelton. Instead, in the words of Lieutenant Baker, "she did not deny the allegations in the complaint." Florida Highway Patrol trooper work activity, in the form of claimed written warnings and correction cards issued to motorists, form a significant portion of a trooper's report of weekly work performed. In order for a trooper to legitimately claim credit for written warnings or correction cards, the trooper must have given a copy of the document to the motorist in question. A Florida Highway Patrol supervisor, in formulating a subordinate performance evaluation for a given period, compiles statistics of the trooper's work activity and utilizes these statistics to rate the trooper's work performance. Evaluations form the basis of Florida Highway Patrol decisions concerning trooper retention, promotion, and salary increases. During the Respondent's June, 1986, to June, 1987, Florida Highway Patrol work evaluation cycle, her work activity, as reported by her, was considered by the Florida Highway Patrol to be in the "low satisfactory" range. Discounting the two incidents established by clear and convincing evidence in which Respondent claimed written warning and correction card work activity on her weekly report but failed to give the written warnings and correction cards to the motorist would not have caused her work activity to fall below satisfactory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of March, 1990. DANIEL MANRY 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 this 20th day of March, 1990.
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
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact On May 16, 1983, Walter Taylor (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner), having been issued Correctional Certificate Number 66856. On December 23, 19851, Respondent was certified by Petitioner, having been issued Law Enforcement Certificate Number 66855. At all times material hereto, Respondent was employed by the Riviera Beach Police Department (Riviera Beach PD) as a law enforcement officer. In April 1994, Respondent and his wife were divorced. They had been married 14 years and had minor children. Prior to the divorce, Respondent had several confrontations with his wife regarding her relationship with another man, a Mr. Chilton, whom she had met in or around 1988. During one confrontation in April 1993, Respondent slapped his then wife. At times, Mr. Chilton was present when the confrontations took place. At no time prior to the divorce did Respondent harm or threaten to harm Mr. Chilton. Subsequent to the divorce, Respondent’s ex-wife and Mr. Chilton continued their relationship. In August 1994, Respondent wanted to attend his family’s reunion in New York but had insufficient funds to take his children with him. Respondent’s ex-wife agreed to attend the reunion with them. With her financial support, everyone could attend the reunion. Respondent and his ex-wife agreed to a pre- arranged time for them to meet on August 11, 1994, and drive to the reunion together. On August 11, 1994, prior to the pre-arranged time, Respondent and his children were packed and ready to leave. Respondent attempted to contact his ex-wife, so they could depart early. He called several places but to no avail. Having failed to locate his ex-wife, Respondent concluded that she was at Mr. Chilton’s apartment. Respondent called Mr. Chilton’s apartment several times only to get an answering machine. He drove to Mr. Chilton’s apartment. By this time, it was approximately 10:00 or 10:30 p.m. When Respondent arrived at Mr. Chilton’s apartment complex, he observed both Mr. Chilton’s and his ex-wife’s vehicles in the parking area. Respondent knocked on Mr. Chilton’s apartment door but received no response. Having knocked from two to five minutes, Respondent left but stopped nearby at a telephone. He repeatedly called Mr. Chilton’s apartment and again the answering machine answered. Respondent was convinced that his ex-wife was in Mr. Chilton’s apartment and that they were refusing to answer the telephone or the door. Respondent was upset and frustrated. Respondent returned to Mr. Chilton’s apartment and began knocking again. The more he knocked, the more frustrated he became. His knocks became harder and louder until he was pounding the door. No one answered the door. Respondent’s ex-wife and Mr. Chilton were afraid to open the door. At all times, Mr. Chilton and the Respondent’s ex-wife were inside the apartment. The door was locked and the deadbolt was engaged. Becoming more and more frustrated, Respondent hit the apartment door two or three times with both hands, arms raised, palms forward and with the weight of his body behind him. The force applied by Respondent knocked down the door. Respondent entered Mr. Chilton’s apartment beyond the door frame. He told his ex-wife to come outside with him and talk. She immediately complied. While exiting Mr. Chilton’s apartment, Respondent informed Mr. Chilton to bill him for the door. The door to Mr. Chilton’s apartment was damaged beyond repair and the area surrounding the door was severely damaged. The dead bolt area on the door was bulged. The area on the door jam in which the dead bolt slid had popped and come loose and was indented. The door handle was very loose. The trim on the doorway was split. On many occasions Respondent has been involved in law enforcement raids in which he, personally, has had to break down doors with his body. The method used by Respondent to break down the doors during the raids was not the same method used by him on August 11, 1994. Even though Respondent’s action forced open the door to Mr. Chilton’s apartment, he reacted out of frustration, not with the intent to force the door open. However, Respondent acted in reckless disregard for the consequences of his actions. He should not have returned to Mr. Chilton’s apartment but waited for his ex-wife until the prearranged time. Respondent’s actions could have escalated the situation into a more serious incident. He exhibited a reckless disregard for the safety and property of others. The incident was reported to the Martin County Sheriff’s Department. The Deputies on the scene took pictures and completed a report. Mr. Chilton did not want to file criminal charges against Respondent but only wanted his door repaired. The Deputies assisted Mr. Chilton in somewhat securing the door, so that it would at least close. Approximately 3:00 a.m. on August 12, 1994, Respondent telephoned Mr. Chilton. Respondent apologized for the damage to the door and agreed to pay for the damage. Subsequently, Respondent telephoned the apartment complex’s manager and agreed to pay for the damage to the door. The cost of the door was $352.99. A payment plan was arranged in which Respondent would pay for the damage in installments. Due to financial constraints, Respondent was unable to comply with the payment plan as agreed upon. The final payment was made on or about February 2, 1995. Respondent had no reason associated with his law enforcement duties to enter Mr. Chilton’s apartment. Respondent was off-duty and out-of uniform. Respondent entered Mr. Chilton’s apartment without permission or invitation. Respondent is responsible for the damage to the door of Mr. Chilton’s apartment. Prior to the incident on August 11, 1994, in or around June 1994, Respondent received training in Anger Management. On August 3, 1994, Respondent was promoted to Sergeant, on a probationary status, by the Riviera Beach PD. As a result of the incident on August 11, 1994, the Riviera Beach PD conducted a personnel investigation. On January 24, 1995, it issued a notice of intent to take disciplinary action against Respondent -– a demotion from a Sergeant to a Patrol Officer, which included a five percent cut in salary. The disciplinary action was taken by the Riviera Beach PD. On November 2, 1994, Petitioner’s Probable Cause Panel issued Respondent a Letter of Guidance for the act of committing battery (slapping) upon his then wife in April 1993. At the time of the issuance of the Letter of Guidance, Respondent had successfully completed the Probable Cause Intervention Program. The Probable Cause Panel was not aware of the pending disciplinary action against Respondent by the Riviera Beach PD involving the incident of August 11, 1994. Neither Respondent nor the Riviera Beach PD notified the Probable Cause Panel of the pending disciplinary action.
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 Reprimanding Respondent; and Suspending Respondent’s certification for thirty (30) days. DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997.
The Issue Whether Appellant on February 6 and 7, 1977, violated Department of Highway Safety & Motor Vehicles Personnel Rules and Regulations 2.1C and Florida Highway Patrol General Order 19, paragraph 11, as specifically alleged in the disciplinary letter of March 14, 1977. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact Appellant Jerry Shores is employed by the Appellee Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Troop B, Orange County, Florida, with the rank of Trooper. He was so employed on December 26, 1976, and on February 6 and 7, 1977. A letter dated March 14, 1977, sent by Certified Mail with Return Receipt Requested was mailed to Appellant Shores notifying him that he was being suspended for sixteen (16) hours without pay based on the violation which is the subject of this hearing. The letter was signed by J.E. Beach, Colonel, Director, Florida Highway Patrol and was approved by Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles. The Appellant Shores appealed this suspension. 3 Documentary evidence and testimony of the witnesses for the Appellee established that on February 6, 1977, during his regular patrol duty hours, Trooper Shores stopped at a "Seven-Eleven" store at 8:30 a.m. without checking in and out of his station by radio then proceeded to his home at 8:40 a.m. where he stopped and went inside without checking out, then left his home at 9:00 a.m. without checking back in by radio, and at 9:30 a.m. stopped at a plant nursery without checking out by radio. At 9:50 a.m. Trooper Shores, while at the nursery, received a call to investigate and assist a disabled vehicle. Trooper Shores did not leave the nursery to attend to the disabled vehicle and while still at the nursery the Patrol Station called him at 10:15 a.m. advising him to work an accident. Trooper Shores then radioed that the reason that he did not get to the disabled vehicle was that he was busy with another disabled vehicle. On Tuesday, February 8, 1977, the Patrol Station called Trooper Shores on the radio during his regular patrol duty hours at 3:50 p.m. The station did not make radio contact although several attempts were made until 4:20 p.m. when Trooper Shores advised he was out of the patrol car. On December 26, 1976, Trooper Shores received a written reprimand from Sergeant J. C. Rique because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone. Trooper Shores had depended upon another person to check him out.
Recommendation Sustain the penalty of sixteen (16) hours without pay. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of June, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Jerry Shores Route 2, Box 526-C Apopka, Florida 32702
Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, 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 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner 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
The Issue Whether the involuntary transfer of Trooper Fred T. Wimberly from Troop "A" in Pensacola, Escambia County, Florida to Troop "E" in Tavernier, Monroe County, Florida was a transfer for the benefit and convenience of the state.
Findings Of Fact Notice of hearing and objections to these proceedings, including the manner of the preservation of the record, were waived by the parties. This Hearing Officer and the Career Service Commission have jurisdiction over the parties and the subject matter of this action. Florida Highway Patrol personnel rules and regulations General Order number 43 and Career Service Commission rules and regulations Chapter 22A-09(c) provide for Career Service hearings on involuntary transfers. Fred T. Wimberly, Petitioner in this cause, is a Career Service Employee of the Department of Highway Safety and Motor Vehicles, Division of the Florida Highway Patrol. He was sent a notice of his transfer by certified mail dated January 7, 1976. By Order of the Honorable Ernest E. Mason, Judge of the Circuit Court, Escambia County, said transfer as been restrained until April 15, 1976. 5, Seventy trooper positions allocated to the Florida Highway Patrol were not filled during the last fiscal year because of insufficient funds and this information was circulated by letter from Mr. Ralph Davis, Executive Director, on May 23, 1975. Col. J. E. Beach, Director of the Florida Highway Patrol by memorandum July 23, 1975, informed all Florida Highway Patrol troops: "We feel it only fair that all troops share the burden rather than a few carry the entire load" and informed the troopers that the Department had decided that each troop run 7.4 as a vacancy ratio. Troop "A" in Pensacola, Florida was to have seven (7) vacancies and Troop "E" was to have eleven (11) vacancies. On February 1, 1976, the time of the transfer of the Petitioner, Troop "A" in Pensacola had three (3) more troopers than allowed under the readjustment total of minus 7. Troop "E" had fourteen (14) less troopers beyond those readjustment figures of minus 11. Thus, Troop "A", in West Florida, had four (4) vacancies and Troop "E" in Broward, Dade and Monroe Counties had twenty-five (25) vacancies. The memorandum withheld voluntary transfers until the required ratio should be achieved. At the time of a needed involuntary transfer the long standing policy of the Florida Highway Patrol, established to help keep employees more satisfied and to retain experienced troopers, has been to consider the following factors: The troop of least need Seniority Marriage factor Wife's employment Number of children Number of school children Other considerations (a) It was determined by the Director of the Florida Highway Patrol that a trooper was needed in Tavernier, Florida, as an increment to Troop E. This determination was based on population need and road conditions. It was determined that Troop A was the troop statewide which could best accommodate itself to losing a trooper. The list of troopers was examined insofar as seniority was concerned and it was found that approximately fourteen (14) troopers had less seniority than Petitioner and therefore each trooper was examined, consistent with established policy, as to marriage status, children living with trooper, school age children living with trooper and wife's employment. It was found that two troopers, Petitioner and Trooper Pembroke Burrows, III, were most eligible for involuntary transfer insofar as these human factors were concerned both being single men with the approximate same seniority. It was decided that Trooper Burrows remain in Troop "A" since he is the only black trooper in the area, the other eleven (11) black troopers being located in the central and southern part of the state. It therefore appeared to the director of the Florida Highway Patrol that Trooper F.T. Wimberly should be chosen to fill the vacancy in Troop "A" and he was so notified of his transfer to be effective February 1, 1976. Said transfer was restrained until after a public hearing and until the Order of the Career Service Commission or April 15, 1976. Petitioner contends: That the transfer was arbitrary and disciplinary in nature and the involuntary transfer was the result of actions in his personal life that were of no concern to the Florida Highway Patrol; that if the transfer was disciplinary it should have been so designated. That the fact of his divorce and the living arrangements he made as to room and board in the home of a woman and her two sons was under investigation by the Florida Highway Patrol prior to the involuntary transfer. That the transfer was made in total disregard to his job performance, his career status and his job seniority. Respondent contends: That the involuntary transfer was for the benefit and convenience of the state and that it followed a long established policy in transferring Petitioner to a needed area. That there were several other involuntary transfers as a result of the shortage of troopers in the state, particularly the southern part of Florida, and that there must be more involuntary transfers. That each trooper signs a statement as a part of a job application which reads "I fully understand that I may be stationed anywhere in the State of Florida and may be transferred at the convenience of the department." That the oath taken by Trooper Wimberly states that "I will render strict obedience to my superior in the Florida Highway Patrol and observe and abide by all orders and regulations prescribed by them for the government and administration of said Patrol." That the rules, regulations and policy of the Florida Highway Patrol were followed in the involuntary transfer of Petitioner and the transfer is to a place of great need and in fact is for the benefit and convenience of the state. That had the transfer been disciplinary in nature the result would have been suspension or dismissal. The Hearing Officer finds: The Florida Highway Patrol has presented substantial evidence that there is a need for a transfer to Troop "E" and that Troop "A" is a logical troop from which to withdraw a trooper and that Petitioner is not the only trooper in the state being transferred to fill the southern Florida need. The Petitioner signed a statement upon his application for employment that he understood that he might be transferred for the benefit and convenience of the state. The Florida Highway Patrol followed the established rules, regulations and policies in the involuntary transfer of Petitioner. That there were two troopers in the area who were most eligible to suffer an involuntary transfer but the reason for the determination to transfer Petitioner rather than Trooper Burrows is a valid reason. That in the field of law enforcement and for the protection of the people in the state there is a need for the Florida Highway Patrol to transfer troopers in an expeditious manner but with due regard to the individual rights of employees. That the evidence shows the human considerations were considered before Petitioner was selected to be transferred. That a determination as to whether the personal conduct of Petitioner was conduct unbecoming a police officer is not necessary for the determination of the issue.
Findings Of Fact At all times relevant hereto Thomas K. Morgan was a trooper with the Florida Highway Patrol and was certified as a law enforcement officer by Respondent. On April 28, 1984, Brenda Liles, a 22-year-old woman, was returning to her home in Ruskin when she ran out of gas and pulled off on the shoulder of U.S. 41 in a rural area. Before leaving from her departure point, she realized her gas gauge was on empty and she called her father to ask him to come look for her if she was not home in 15 minutes. Trooper Morgan saw the AMC Concord parked along U.S. 41 and pulled up behind the car. Miss Liles was in the car with the doors locked and the windows rolled up. When Respondent approached her car he shined his flashlight inside the car to look for weapons or anything suspicious. Seeing the trooper, Miss Liles lowered the window to tell him she had run out of gas but her father would be along momentarily. Respondent stayed alongside Miss Liles' car and they held a general conversation for several minutes before Mr. Liles arrived. Miss Liles was dressed in shorts and tee shirt. When her father arrived he found his daughter calm and he suggested she get into his pickup truck and he would return for the AMC the following day. Respondent told Liles that he (Morgan) had a gas can he could borrow to get gas and the car could then be driven away rather than be left alongside the highway all night. Liles took the gas can and departed. He planned to stop by his home for a funnel but, even so, the round-trip for gas was expected to take no more than ten minutes. When Liles left, Respondent continued talking to Miss Liles and suddenly started shining his flashlight over her body and said, "Pussy, pussy, let me see that pussy," or "I want that pussy; open it up," or words of similar import. Miss Liles initially did not understand him and asked him what he had said. He repeated the words while shining his flashlight over her body. She immediately rolled up the window through which they had been talking (the doors had remained locked) and became very frightened and started crying. Respondent returned to his patrol car and started filling out reports. Approximately five minutes later Mr. Liles returned with the gas, saw his daughter was crying, and that she was visibly upset. After putting gas in the car, he returned the gas can to Respondent and asked his name and badge number. When the AMC was started Liles told his daughter to follow him and he drove to the sheriff's substation in Ruskin. Although Liles did not ask his daughter what had happened, he sensed it had something to do with Respondent. Upon arrival at the Sheriff's Office they encountered Trooper Donna L. Middleton who was told by Liles that they wanted to make a complaint. At this time Miss Liles was either still crying or showed visible evidence of having been crying and was quite upset. Trooper Middleton took father and daughter into an office to inquire as to the nature of the complaint. Miss Liles was having some difficulty getting the words out so Mr. Liles excused himself and went outside. Trooper Middleton gave Miss Liles complaint forms and asked her to write down what had happened. She assisted Miss Liles in the correct spelling of some of the words. As soon as she realized the nature of the complaint, Middleton called her supervisor to come to the Ruskin office. The Lileses remained at the substation until the then-Corporal Shriver arrived approximately one hour after the Lileses had arrived. At this time Miss Liles still gave the appearance of being upset and of earlier crying. Shriver took custody of the statement and the Lileses returned home. The complaint was duly processed by the Florida Highway Patrol, referred to the investigation branch, and investigated by Lieutenant Brown. Brown interviewed all the parties above named including Respondent. Following this investigation Respondent was dismissed from his employment with the Florida Highway Patrol. Respondent presented his wife and a female friend of his wife to testify that they had never heard Respondent make comments about the anatomical parts of the female body, and that such comments would be inconsistent with their impression of Respondent's character. In his testimony Respondent confirmed all of the testimony of the Lileses except Respondent's use of the language complained of, which he denied. Although all witnesses had testified that the weather was mild on the evening in question, Respondent testified Miss Liles rolled up her window because she was cold and he then returned to the patrol car. Respondent also testified that he had always been interested in work as a law enforcement officer and was very proud of his position as a trooper in the Florida Highway Patrol.
