The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 1 . On September 20, 1985, Respondent published notice of Emergency Rule 10CER85-9 in Florida Administrative Weekly (FAW) Volume 11, Number 38, at pages 3645 and 3646. This emergency rule took effect on September 5, 1985, and remained in effect for a period of ninety days. The underlying policy in this emergency rule was initially set forth in a series of policy clearances in 1979 and 1982. As stated in its FAW notice of this emergency rule, Respondent's specific reasons for finding an immediate danger to public health, safety or welfare were that: Under the Federal Law, the State of Florida, the Economic Services Program Office is required to impose sanctions where non- cooperation in the area of Child Support Enforcement has occurred. Recent appellate decisions, specifically Amos v. HRS and Williams v. HRS, prohibit the imposition of such sanctions unless and until rules defining non- cooperation and delineating due process procedures have been promulgated. Without this emergency rule which defines cooperation, non-cooperation and explains the due process procedures to be accorded clients, the State of Florida is out of compliance with the requirements of 45 CFR 302.21, 45 CFR 232.11 and 45 CFR 232.12. This situation of non- compliance ) jeopardizes the federal funding for the Public Assistance Program which could be reduced up to five (5 percent) percent and could totally deny federal financial participation for the IV-D Child Support Enforcement Program. The First District Court of Appeal invalidated the prior policy clearances since they had not been promulgated as "rules" under Chapter 120, Florida Statutes. Amos v. Department of Health and Rehabilitative Services, 440 So.2d 43 (Fla. 1st DCA 1983); Williams v. Department of Health and Rehabilitative Services, 461 So.2d 1004 (Fla. 1st DCA 1984). Due to the decisions of the First District Court of Appeal in Amos and Williams, supra . Respondent' general counsel was notified in March 1985 by the supervisor of Respondent's Public Assistance Appeal Hearings Office that all reports of non-cooperation based upon blood test results would be summarily reversed until Respondent's policy on non-cooperation was properly adopted as a rule. This meant there would be no more reports of non-cooperation until the rules here in question were adopted. In relevant part, Emergency Rule 10CER85-9 provides: 10CER85-9 Cooperation in Obtaining Child Support. Cooperation Required. As a condition of eligibility an applicant or recipient of public assistance must cooperate with the Child Support Enforcement Unit in its efforts to collect child support. The requirement to cooperate will be excused only when good cause for refusing to do so is determined to exist in accordance with 45 CFR Parts 232.40 through The applicant or recipient must cooperate by: Identifying and helping to locate the parent of a child for whom public assistance is claimed; . . . 5. Identifying the actual putative father when an earlier name putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific test. Cooperation includes but is not limited to the following actions that are relevant to, or necessary for, the achievement of the objectives of locating the absent parent, establishing paternity, establishing a support obligation, and collecting and enforcing a support obligation: Appearing at an office of the state or local agency or the child support agency as necessary to provide verbal or written information, or documentary or physical evidence, known to, possessed by, or reasonably obtainable by the applicant or recipient; Providing the name of a putative father who has not been excluded by blood or other scientific test results acceptable as competent evidence by Florida courts; Appearing as a witness at judicial or other hearings or proceedings; Providing information regarding the identity or location of the alleged father of the child or attesting to the lack of information, under penalty of perjury; and Identifying the actual putative father when an earlier named putative father has been excluded by Human Leucocyte Antigen (HLA) or other scientific test. . . . Non-cooperation or failure to cooperate shall be defined to include but not be limited to the following conduct: Failure or refusal to identify the father of the child, or, where more than one man could, to the best of her knowledge, be the father of the child, to identify all such persons. If the mother identifies one or more persons as possible fathers of the child and asserts that there are no others who could be the father of the child, but Human Leucocyte Antigen (HLA) blood testing shows that none of the persons identified could in fact have been the father of the child, then the mother shall be deemed non-cooperative. If she subsequently identifies another person as a possible father of the child, she shall still be deemed non-cooperative until such person has been given an HLA blood test and is shown by the results to be a possible father of the child. Failure to appear for two (2) appointments with the IV-D unit without reason or notice; Providing incorrect information under oath regarding the paternity of the child or the obligation of the responsible parent; . . . . . Reporting Non-cooperation. When an applicant or recipient fails to cooperate with the Child Support Enforcement Unit, the Child Support Enforcement Unit shall notify and provide the Public Assistance Unit with evidence of the act of non-cooperation. Using the evidence provided, the Public Assistance Unit will determine if non-cooperation exists and whether to enforce the Public Assistance eligibility requirements. If the Public Assistance Unit determines that the applicant or recipient has failed to cooperate, the Public Assistance Unit shall provide written notice to the applicant or recipient of the facts which constitute non-cooperation, the intended action and the time within which the applicant or recipient must request a fair hearing. . . . If the Public Assistance Unit determines that the applicant or recipient has not failed to cooperate, the Public Assistance Unit shall not take any action against the caretaker relative. The Child Support Enforcement Unit must dispose of the legal proceedings in the most appropriate and expeditious manner. On November 1, 1985, Respondent published notice of Proposed Rule 10C-25.06 in FAW Volume 11, Number 44, at pages 4184, 4187, 4188. As stated in the Summary of Proposed Rules, "New Section 10C-25.06 is added to clarify the statutory requirement that recipients of public assistance cooperate in obtaining child support payments from the responsible parents." In relevant part, Proposed Rule 10C-25.06 is identical to Emergency Rule 10CER85-9 shown above, except that it specifies that an HLA "or other Scientific test" shall be used in finding noncooperation, as defined in subsection 2 of the rule. The specific statutory authority cited by Respondent for the emergency rule was Section 409.026, Florida Statutes, and the law implemented was Section 409.2572, Florida Statutes. Respondent also cited these sections as statutory authority for the proposed rule, and in addition cited Section 409.2557, Florida Statutes, as the law implemen_ted by the Proposed rule. Petitioner and Intervenor have been deemed non- cooperative under Emergency Rule 10CER85-9 and have been denied benefits under the Aid to Families with Dependent Children (AFDC) program. Specifically, their own needs have been removed from their AFDC grants, and a protective payee has been appointed to receive the remainder of their AFDC grants. They continue to be denied benefits under this emergency rule. Respondent has stipulated to their standing in these cases. Respondent did not face any immediate threat of a loss of federal funds prior to the adoption of Emergency Rule 10CER85-9. There had been no critical audit or official warning of sanctions from federal officials due to Respondent's failure to formally adopt the policies embodied in these rules. Therefore, it has not been established that an immediate danger to the public health, safety or welfare existed prior to the adoption of the emergency rule. This finding is based on the testimony of Donald H. Hewett, Administrator in the Office of Child Support Enforcement, Robert A. Leeper and Chriss Walker, Attorneys, and Marlin Seay, Director of the Office of Child Support Enforcement, all of whom expressed concern about a "possible" loss of federal funds, but who confirmed that there had been no critical audits or actual warnings from federal officials. The danger of loss of federal funding was not immediate, but was purely speculative. The Human Leucocyte Antigen (HLA) blood test, referred to in both the emergency and proposed rules, is very definitive in excluding males falsely accused of paternity. Using the HLA test, if a child possesses an antigen which is mot found in the mother or putative father, it is established conclusively, and to a moral certainty, that the putative father has been falsely accused. HLA blood testing is used to exclude, not establish, paternity and is widely used and accepted in this manner within the medical community. This finding is based on the testimony of Dr. G. L. Ryals, Director of Paternity Testing at Roche Biomedical Labs, who was accepted as an expert in paternity testing and evaluation, and Dr. Gary Niblack who was also accepted as an expert in paternity testing. It is recognized that rare blood types, mutations, and genetic conditions could, in very rare situations, result in false exclusions using the HLA or other blood tests. In addition, human error in blood testing can occur and result in false exclusions. Nevertheless, after considering all of the testimony and particularly the amount of personal experience the expert witnesses have had in using the HLA blood test, it is found that the HLA blood test is reliable, and is also the most accurate test available when used to exclude paternity. It is a reasonable and rational method for excluding paternity. The rules in question specifically require the use of an HLA "or other scientific test," such as the six red blood cell tests known as ABO, Rh, MNS, Kell, Duffy and Kidd. If an exclusion is obtained by performing these red blood cell tests, some labs conducting the test for Respondent do not perform the HLA test, while others perform the HLA test in every case. The red blood cell tests, although not as accurate or reliable as the HLA test, are still a reasonable and widely accepted method of excluding paternity. Laboratories under contract with Respondent to perform these blood tests follow extensive quality controls, are accredited and licensed. They follow established protocols to minimize errors and issue correct results to the maximum extent possible, and within degrees accepted by the medical community. Respondent generally accepts the lab results and does not employ staff experts to review these test results. The rate of exclusion in Florida is 28 percent to 29 percent while the national exclusion rate is approximately 30 percent. Thus, Florida's rate of exclusion is virtually the same as the national average. Respondent's Child Support Enforcement Office administers the Title IV-D Program while the Public Assistance Office administers the Title IV-A Program of the Social Security Act. Under the applicable federal regulations, as well as the rules in question in this case, it is the Public Assistance Office (IV-A) which imposes sanctions on an AFDC recipient and which can remove those sanctions. The Child Support Enforcement Office (IV-D) can report its finding of non-cooperation, but the imposition of those sanctions rests with the Public Assistance Office. When sanctions are imposed by the Public Assistance Office they remain in effect indefinitely, or until the recipient becomes "cooperative" by identifying the putative father of her child. The recipient is entitled to a hearing when sanctions are imposed and the decision of the hearing officer assigned by Respondent's Public Assistance Appeal Hearings Office is binding on Respondent but not on the recipient, who may appeal to the District Court of Appeal. According to Chriss Walker, attorney for the Child Support Enforcement Office, there is a general policy which gives investigators discretion in administering the "good cause" exemption in Subsection (1)(a) and in reporting non-cooperation to the Public Assistance Office. Specifically, if the child support enforcement investigator determines that the mother has been raped or otherwise really does not know the name of the man who is the father of her child, she will not be reported as non-cooperative, even if she had previously identified a man who was excluded by the HLA or other scientific test, since this constitutes "good cause" under Subsection (1)(a). Paternity blood testing is based on the fact that children inherit genetic information from their biological parents. The child's genetic information is compared to the mother's and putative father's using an HLA or other scientific test. An exclusion occurs when testing shows that the child has a genetic marker which neither the mother or putative father possess. Respondent accepts an exclusion in one system as valid and once a red cell exclusion is obtained, Respondent's procedures do not require further FLA testing in all instances.
Findings Of Fact By an "Amended Petition to Determine the Invalidity of a Rule," petitioner seeks to have declared invalid the respondent's unwritten policy of allowing employees of the respondent to interpret and implement Sections 410.10 through 410.11 of the Florida Statutes without guidelines in the form of promulgated rules. Neither party produced any witnesses at the hearing. The only evidence received at the hearing was the Respondent's answers to requests for admissions and interrogatories, the "Petition for Commitment Pursuant to the Adult Protective Services Act" filed by the Respondent on behalf of the Petitioner herein and the Order of the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, Florida, Case No. 81-184-CP, entered on June 12, 1981, which dismissed said petition for commitment. By a "Petition for Commitment Pursuant to the Adult Protective Services Act" sworn to on March 6, 1981, and apparently filed with the Circuit Court in Alachua County on April 2, 1981, the respondent Department of Health and Rehabilitative Services, through an adult protective services representative, sought an order committing petitioner Alice Bostic to a nursing home for her protection. Apparently, the respondent Department of Health and Rehabilitative Services' representatives failed to follow the procedural time requirements for emergency action under Section 410.10 through 410.11, Florida Statutes, and the Circuit Court ultimately entered an Order dated June 12, 1981, dismissing the petition for commitment and holding that "Chapter 410 of the Florida Statutes does not apply to involuntary non-emergency situations." The respondent Department of Health and Rehabilitative Services has no written or promulgated rules which outline the procedures for initiating or processing adult commitment proceedings under the Adult Protective Services Act. Petitions for commitment pursuant to said Act are routinely filed by staff members of the Department of Health and Rehabilitative Services, generally social workers, who are not attorneys-at-law. The only policy respondent has with respect to adult commitment proceedings is to follow the statutory provisions of Sections 410.10 through 410.11, Florida Statutes.
The Issue The issue is whether Petitioner should be granted an exemption from disqualification from working in a position of special trust pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact At some point in time, Petitioner married Antonio Sharod Washington. They had two children. In July 1999, a judge in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered a Final Judgment of Injunction for Protection Against Domestic Violence (After Notice) against Petitioner pursuant to Section 741.30, Florida Statutes. The injunction states that it shall remain in full force and effect permanently or until further order of the court. The judge entered a similar injunction against Mr. Washington. After the injunctions were issued, Mr. Washington went to visit Petitioner at her apartment. Petitioner understood that Mr. Washington wanted a reconciliation. Based on her conversation with Mr. Washington, Petitioner petitioned the court to dissolve the injunction against Mr. Washington. Petitioner mistakenly believed that Mr. Washington had filed a similar petition to dissolve the injunction against her. On August 14, 1999, Petitioner went to Mr. Washington's apartment. At that time, Petitioner learned that Mr. Washington was living with another woman. Petitioner admitted during the hearing that she became angry and raised her voice but denied that any type of physical violence against another person occurred. A warrant was issued for Petitioner's arrest on September 23, 1999. On October 18, 1999, Petitioner was arrested pursuant to the outstanding warrant. Petitioner was charged with violation of the domestic violence injunction pursuant to Section 741.31, Florida Statutes. Petitioner admitted the following facts: (a) on November 18, 1999, Petitioner pled no contest to the charges against her; (b) the judge withheld adjudication of guilt; (c) the judge sentenced Petitioner to four months' probation, requiring her to participate in an anger control program and prohibiting any violent contact. In time Petitioner met a new friend who became her "significant other." The new friend is the father of Petitioner's third child. Petitioner began working as a caretaker of children at a private school in September 2001. Petitioner's new friend provided her with a motor vehicle so that she would have transportation to and from work. In order to maintain her job as a child care worker, Petitioner had to undergo Level 2 background screening. By letter dated November 29, 2001, the school advised Petitioner that she was ineligible for continued employment as a childcare worker due to her conviction for violating the domestic violence injunction and for engaging in criminal mischief. Petitioner continues to work for the school, performing cleaning services at night. She has no other employment. Petitioner regularly attends church. She has not violated the domestic violence injunction since she was arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from employment disqualification. DONE AND ENTERED this 10th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of April, 2002. COPIES FURNISHED: Tonya Washington 2707 Cobblestone Forrest Circle, West Jacksonville, Florida 32225 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
