The Issue Whether Respondent, a certified correctional officer, while under oath, did make false statements, which she did not believe to be true, in an official proceeding regarding a material matter, and, if so, what discipline should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of each witness; stipulations by the parties; documentary materials received in evidence; and evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004), the following relevant and material facts, arrived at impartially and based solely on information presented at the final hearing, are determined: Deputy Marvina K. Johnson was certified by the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), on September 17, 1991; was issued Correctional Certificate Number 62620; and, on June 23, 2000, was issued Instructor Certificate Number 211202. At all times material, Ms. Johnson was employed by the Manatee County Sheriff's Department (Sheriff's Department) until her dismissal in November of 2003. At some time during the month of June 2003, Ms. Johnson met Bruce Straubel in a local gym. Shortly after their initial meeting, the two became romantically involved. This romantic relationship progressed to the point that Mr. Straubel moved into Ms. Johnson's residence; thereafter, they established joint bank accounts and shared housekeeping and household expenses. At all times heretofore, Mr. Straubel was working in the construction industry. The evidence demonstrated that Ms. Johnson did not know and that she was not informed by Mr. Straubel that he was a convicted felon serving five years' probation at the time of their initial meeting in June and throughout the first few months of their relationship. The evidence of record demonstrated that it was not until early August 2003 that Ms. Johnson became aware of Mr. Straubel's criminal past. Sergeant Gaythel Siplin, Ms. Johnson's co-worker, testified that she was invited to Ms. Johnson's residence for a party where she was introduced to Mr. Straubel by Ms. Johnson. Sergeant Siplin, throughout the course of the evening, correctly assumed that Ms. Johnson and Mr. Straubel were seemingly truly romantically involved. From her apparent concern and her 20 plus years as a correctional officer with experiences of potential problems female correctional officers may encounter when involved with males of unknown background, Sergeant Siplin inquired if Ms. Johnson had conducted a background check on Mr. Straubel, to include AIDS testing, credit check, and criminal background check. The answer given, as recalled by Sergeant Siplin, was negative. On another occasion, unidentified in the record but believed by the witness to have been during the month of July 2003, Sergeant Siplin testified that she again advised Ms. Johnson to "check out" Mr. Straubel; meaning do a medical, credit, and criminal background check because in her mind "Mr. Straubel was too good to be true . . . like he fell from heaven." Sergeant Siplin testified that Ms. Johnson told her on or about the first of August that "Bruce" was involved in construction and building houses and that he was involved in a situation where he was charged with false imprisonment. Sergeant Siplin knew for a fact that false imprisonment is a violent offense, and she told Ms. Johnson to check into Mr. Straubel a little bit further. Ms. Johnson was not certified to make inquiries through use of the Department of Law Enforcement's NCIC computer connection to ascertain the identity of a person with a felony conviction. According to Sergeant Williams, information about Mr. Straubel was available to Ms. Johnson through the internet by connecting to the Department of Correction's website. Sergeant Siplin related her "concerns about Ms. Johnson's relationship with Mr. Straubel" to other members of the Sheriff's Department. This "concern" founded its way into the Internal Affairs (IA) Office during August 2003. During a conversation between Lieutenant Smalls and an unnamed probation officer, the lieutenant was told that "one probationer [unnamed] was seeing a fellow employee." On or about August 19, 2003, Lieutenant Smalls met with and informed Captain Williams of the information taken from an unidentified probation officer. Captain Williams checked and affirmed that Mr. Straubel was a convicted felon. The IA investigation team, consisting of Major Potts, Captain Williams, Captain Smith, Lieutenant Smalls, and Carolyn Smith, summoned Ms. Johnson into the IA office and asked whether she knew Mr. Straubel was a convicted felon, to which Ms. Johnson answered "No." Not withstanding Ms. Johnson's denial of "knowledge that Mr. Straubel was a convicted felon," she was told by a [unnamed] superior officer of the Sheriff's Department to "cease and desist her relationship or any other contact with Mr. Straubel because of his criminal history." Ms. Johnson gave undisputed testimony that during her interview, her superior officer told her, "[I]f you had married him all of this would not be in play, you should have married him." Ms. Johnson complied with the "cease and desist her relationship or any other contact with Mr. Straubel" order of her superior officer from August 19, 2003, until sometime beginning in late October or early November 2003. Ms. Johnson gave undisputed testimony that she paid for Mr. Straubel to move into another living facility, establishing separate residence. She deposited money into his bank account and made a valid effort to "discontinue seeing Mr. Straubel." However, her efforts failed, and she first began calling Mr. Straubel; the repeated calls led to meetings outside her home; the meetings outside her home led to her going to his motel for overnight visits; the overnight motel visits led to Mr. Straubel coming over and spending nights at her home. Sergeant William Diamond testified that on or about November 14, 2003, Mr. Straubel called IA and asked to meet and did meet with IA members on or about November 17, 2003. According to Sergeant Diamond, during the meeting, Mr. Straubel acknowledged that he and Ms. Johnson were still "having an affair." Although available, Mr. Straubel did not testify. Because IA got its information from a probation officer, and, thereafter, the probationer presumably called IA and volunteered to meet with IA, the logical and most reasonable assumption is that the convicted felon, Mr. Straubel, was prompted by his probation officer to contact IA. However, the Commission chose not to call Mr. Straubel to testify. Therefore, testimony of Sergeant Diamond, purporting to be "statements made by Mr. Straubel to IA on or about November 17, 2003," which are hearsay upon hearsay statements, is insufficient to establish the truth of the matter asserted therein, is insufficient to establish the truth of the allegations sought to be established, and is, therefore, rejected by the undersigned. On November 24, 2003, Ms. Johnson was called in by IA and questioned regarding her knowledge of Mr. Straubel and his criminal history and her relationship with him. There was testimony regarding "dates phone calls were made to and from Respondent's phone"; however, there is no written evidence of record of the alleged phone calls or the dates they were made, if made. There was testimony regarding some questions asked of Ms. Johnson by the IA team members regarding motel rental payments and bank deposits. Again, there is no written evidence of record of the motel rental payment, or bank deposit slips, etc., that was produced by Petitioner. Accordingly, the testimony regarding or relating to documentation not of record is insufficient alone to establish a firm belief as to the truth of the matter sought to be established. Ms. Johnson never denied not seeing Mr. Straubel. When questioned whether she had "seen Mr. Straubel" after the August 19, 2003, order to cease and desist her relationship with Mr. Straubel, Ms. Johnson answered "no" but continued her answer to explained her temporary successful attempt to discontinue her relationship and her subsequent relapse back into the relationship with Mr. Straubel, after passage of time. During questioning by IA, Ms. Johnson admitted paying Mr. Straubel's motel bill after he moved out of her residence; she acknowledged that she was aware that in his past Mr. Straubel had gotten into "some trouble"; but she denied knowing, at that time, his trouble was a felony conviction. After IA presented her unidentified documentation that Mr. Straubel was a convicted felon, Ms. Johnson accepted IA's documentation as evidence of Ms. Straubel's criminal background. Her mere acknowledgement of the documentation presented to her by IA does not establish, as fact, she had knowledge of this information prior to IA's interrogation. Mr. Strabuel was not called to testify, and the tape recording of his earlier interview with IA was not introduced into evidence. The witnesses' recollection, made from repeated references to summation notes of tapes and other documents not in evidence, purporting to be statements Mr. Straubel voluntarily made to IA about what Mr. Straubel may or may not have told Ms. Johnson in June 2003, is hearsay upon hearsay and not acceptable as evidence to prove the truth sought to be established. For that reason this testimony is rejected in toto. The Sheriff's Department terminated Ms. Johnson's employment at the conclusion of the IA investigation, the exact month and date are not in evidence of record. After her termination by the Sheriff's Department, Ms. Johnson entered college and, as of this proceeding, had earned 46 credits toward her college degree. Subsequent to the close of this proceeding Ms. Johnson and Mr. Straubel were married on August 16, 2004, in Manatee County, Florida. The evidence of record is neither clear nor convincing that on November 24, 2003, while under oath Ms. Johnson intentionally made a false statement(s), which she did not believe to be true. The testimony of Sergeant Diamond alone, based upon summation notes purportedly taken from two tape recordings of an interview between Lieutenant Smalls and Mr. Straubel and three tape recordings purportedly containing interviews with Captain Smith, Sergeant Siplin, Deputy Eleanor Mays and Ms. Johnson, is neither clear nor convincing when transcription summaries of the tape recordings and not the tape recordings themselves where introduced into evidence. There is no evidence of record of the specific question(s) asked Ms. Johnson and no evidence of record of her specific answer to each question regarding her relationship with Mr. Straubel after August 19, 2003. The evidence of record regarding the November 24, 2003, interrogation episode, viewed most favorably, is not clear. When questioned by the IA committee and/or members regarding specific bills she allegedly paid, phone calls she allegedly made, and bank deposits she allegedly made; those phone bills, telephone logs, and bank deposit slips are not of record. Accordingly, an objective evaluation of Ms. Johnson's answer to each question regarding each specific document can not be made. Thus, Ms. Johnson's knowledge at the time each answer was given, her intention when an answer was given to a specific question, and whether her answer was true or false, can not be objectively made or reasonably inferred from the nonspecific summation testimony of Sergeant Diamond. Assuming Sergeant Diamond's entire testimony was accurate, the ambiguity created by the absence of dated documents and the absence of accurate transcripts of the several tape recordings upon which he based his testimony must be resolved in favor of Ms. Johnson. Other than the faulty memory of Sergeant Diamond, refreshed from an unauthenticated 19-page summation report, there is no substantial and specific evidence of all specific questions asked of Ms. Johnson or the specific answer to each question given under oath by Ms. Johnson. Sergeant Diamond's testimony consisted primarily of debatable expressions announced prospectively that may result in the loss of a valuable license. Viewed most favorably, the testimony of Sergeant Diamond, taken from a 19-page unauthenticated summation report of tape recordings and alleged confessions and admissions by other parties, is lacking in "specificity" and fails to produce a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Ms. Johnson's denials of essential elements in the Administrative complaint, even if unbelievable, does not prove the accusations. The Commission failed to prove by clear and convincing evidence that on or about November 24, 2003, Ms. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Sergeant Diamond and Investigator Nancy Schoff in an official proceeding, to wit: internal investigation, in regard to a material matter as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the Administrative Complaint against Respondent, Marvina K. Johnson. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 30th day of November, 2004.
The Issue Whether Respondent, a certified law enforcement officer, committed the various acts of misconduct described in the Amended Administrative Complaint, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent's certificate.
Findings Of Fact Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. Respondent was certified by Petitioner as a law enforcement officer on March 12, 2003, and issued certificate number 229917. Respondent resided in Riviera Beach, Florida, for a portion of his childhood. During this time, he developed a friendship with Frederick Maurice Dean ("Dean"). He was also acquainted with Hasani Thomas ("Thomas"), although not as closely as with Dean. Respondent and Dean spent time together on a daily basis and their relationship continued as their lives took divergent routes. After graduating from high school, Respondent attended college out of state and then returned to Riviera Beach and earned his A.S. degree at the local community college. Respondent continued with his studies at Florida Atlantic University. While working for the City of Riviera Beach in a civilian capacity, Respondent remained personally close with Dean and attempted to help Dean obtain employment. While enrolled at the local policy academy, on September 3, 2001, Respondent was hired by the Riviera Beach Police Department ("RBPD"). Respondent's initial assignment with RBPD was to the road patrol. The intersection of 33rd Street and Old Dixie Highway, the location of the Worldwide Grocery Store ("Worldwide"), was within his area of patrol. In 2003, the Drug Enforcement Administration ("DEA"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an operation entitled "Operation Worldwide." The purpose of Operation Worldwide was to eradicate a gang or group of individuals involved in various crimes including murder, drug trafficking, and robbery. The targets were believed to be congregating around, and conducting their activities, in part, from, Worldwide. As part of the plan, the FBI utilized confidential informants to purchase drugs from the targeted group. Additionally, Operation Worldwide sought to conduct surveillance by placing video cameras in covert positions. Initially, one camera, which was not visibly apparent, was installed on a pole in a position to observe the activities at Worldwide. This installation proved ineffective, as it was vandalized with spray paint after the second day of operation. In response, a second video camera was installed in the same capacity at a greater distance from the Worldwide; however, that camera similarly proved ineffective as the location was apparently disclosed or discovered by the criminal subjects. Operation Worldwide concluded in 2005 when a grand jury issued federal indictments and arrest warrants for multiple targets of the operation. Three particular targets and their respective post-arrest statements are pertinent to the instant action, and are addressed seriatim. On May 12, 2005, Hasani Thomas, a previously convicted felon, was federally indicated on distributing a Schedule II controlled substance, and having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessing a firearm in and affecting commerce. A warrant was issued and he was arrested by U.S. Marshals on August 11, 2005. Post-arrest, Thomas, cooperating with law enforcement, made several allegations concerning Respondent. He provided that Respondent and Dean were close friends. Dean had advised Thomas that he was wanted based on information obtained from Respondent. Thomas also alleged that Respondent had disclosed the location of the surveillance cameras at Worldwide to Thomas. Dean, Respondent's friend and a previously convicted felon, was federally indicted on two counts of distribution of crack cocaine and a warrant was issued for his arrest on May 12, 2005. Dean was arrested by U.S. Marshals on August 14, 2005. The day following his arrest, Dean was interviewed by FBI Special Agent Steven Burdelski. Prior to the interview, Dean was informed of why he was being interviewed and the federal charges he was facing. Post-Miranda, Dean admitted to being a seller of drugs, including cocaine, and that he made his living by selling drugs. He further admitted to selling crack cocaine at Worldwide and gave the name of the individual who supplied him with his drugs. Dean was then told by his interviewer that agents were aware he was friends with Respondent and that they wanted to learn what Dean knew about Respondent and specifically what Dean knew about any criminal activity in which Respondent may be involved. Dean subsequently provided numerous allegations concerning Respondent. Specifically, Dean contended that Respondent had encountered Dean at the Palm Beach Mall approximately three months earlier and advised Dean that federal law enforcement officers were looking for him, that they were going to give him "a lot of time," and that he needed to lay low. Dean further advised that Respondent would advise Dean and other drug dealers at Worldwide if law enforcement was planning an operation, the type of vehicles being utilized by law enforcement, and that a camera was observing their activity at Worldwide. Additionally, Dean advised that on several occasions Respondent had provided drugs to Dean in return for cash. Based upon the information received, on August 15 and 16, 2005, several controlled recorded phone calls were attempted and completed by and between Dean and Respondent. During the course of one of the recorded calls, Dean inquired as to whether "his picture" was up at the police station. Respondent advised Dean that he had not seen his picture and that he had not heard anything specifically about Dean. Dean and Respondent further discussed that law enforcement had "busted" Thomas and that law enforcement was serious. Dean stated that Respondent had warned Dean and that he was laying low. The conversation turned to the topic of cameras at Worldwide. Dean asked Respondent whether there was a camera installed at Worldwide. Respondent initially responded that he did not know and that the owner of the store, Mike, was doing some rebuilding at the store. Dean then asked again if the camera was still up at the store. Respondent stated, "You know those mother fuckers got everything over there boy." To which Dean replied, "I know bitch people got to be careful over there." Respondent further stated that, "They got everything, they got everything and your momma over there boy." When asked by Dean if law enforcement had taken down the big camera, Respondent advised that he did not know, but they were "cleaning up the neighborhood." Finally, Dean requested Respondent to use his connections and determine whether there were pending charges against Dean. Respondent unequivocally advised Dean that he could not do so as he was not President Bush. Adrian Henderson, a convicted felon, was arrested in 2006 on felony narcotics charges. Henderson, in a federal proffer statement, alleged that Respondent advised individuals at Worldwide concerning the location of the cameras and, upon request, would run Henderson and Dean's name through "the system" to determine if there were outstanding warrants. Thomas, Dean, and Henderson in subsequent statements made numerous allegations concerning Respondent's assistance, participation, and acquiescence to the drug activities being conducted at Worldwide.3/ Those allegations included, but are not limited to, the following: allowing Thomas to conduct cocaine transactions in Respondent's presence; advising the details of surveillance camera placement; Respondent's encountering Thomas and advising him that U.S. Marshalls had a picture (warrant) concerning Thomas and Dean, but failing to arrest; Respondent's providing Dean crack cocaine and marijuana for cash; failing to arrest individuals close to Worldwide; Respondent's advising when the drug task force was operating in the area; Respondent's advising of the make and model of surveillance vehicles; Respondent's checking for warrants and advising if a warrant existed, but not arresting the individual. After obtaining the initial 2005 post-arrest statements from Thomas and Dean, FBI Agent Steven Burdelski provided the information concerning Respondent's alleged involvement to RBPD for an internal investigation. Additionally, the information was reviewed with the United States Attorney's Office. The United States Attorney's Office determined that it would not proceed with criminal prosecution of Respondent. Captain John Mammino was involved with the internal affairs investigation of Respondent. In addition to reviewing the initial statements, in 2006, he conducted interviews of Dean, Thomas, Henderson. In 2009, the Palm Beach County State Attorney's Office formed a public integrity unit. Captain Mammino desired that State Attorney's Office review the case concerning Respondent, and, therefore, conducted another round of interviews with Thomas, Dean, and Henderson. The entirety of the information was provided to the State Attorney's Office, and they also declined to prosecute Respondent. Thereafter, an investigation was conducted in an effort to corroborate the allegations that Respondent provided warrant information to Dean. The Florida Crime Information Center ("FCIC") and the National Crime Information Center ("NCIC") databases are used for obtaining criminal history information. FCIC is the central repository for all criminal histories within Florida. Users in Florida must become trained and certified through the Florida Department of Law Enforcement ("FLDE") instructors. Respondent was certified to access FCIC/NCIC on July 1, 2003. Warrant information is placed into the FCIC/NCIC database by law enforcement agencies, and such information is not available to the public. The FCIC/NCIC database is not to be used for any non law-enforcement related purpose. A certified user may access FCIC by logging in with an individual password and user name. A computer database, the Transaction Archive Reporting ("TAR") database, keeps a record of all queries within the FCIC system. FDLE maintains the TAR system, and same may be searched to produce records of an individual's queries or transactions. The reports generated from such a search are called TAR reports. A search was conducted of the TAR database for any FCIC queries concerning Dean. A review of the TAR reports generated from the search revealed that Respondent accessed FCIC and manually inputted the first name, middle name, last name, date of birth, sex, and Florida Driver's License number of Dean on three occasions: October 7, 2003, October 17, 2003, and November 30, 2003. These searches would have revealed whether Dean had any outstanding warrants. Dean had no warrants outstanding on the above-referenced dates. On June 30, 2010, over five years subsequent to the above-referenced arrests, Respondent participated in a sworn interview with RBPD Internal Affairs. During this interview, Respondent was asked whether he ever ran Dean's name through the system. Respondent initially replied, "No. I never ran Freddie (Dean) through." After being advised, for the first time, of the results of the TAR reports, he stated that he did not remember running Dean's name: Officer Lewis: We pulled records from the FDLE database. It showed records showing on October 7th, 2003 at 4:03 p.m., that you ran Freddie Dean for warrants through FDLE's database. Respondent: I ran them or Tina Hall ran them? Officer Lewis: It actually listed your name. Respondent: I must have made an arrest on him for possession of marijuana. Officer Lewis: There was another one ten days later at 9:53 for the same person, Frederick Dean. Do you recall that? Respondent: No, sir. Officer Lewis: On November 30th, 2003 at 1:15 p.m. the same ran through the system, Frederick Dean for warrants. Do you remember that? Respondent: No, sir. Additionally, during the internal affairs interview, Respondent advised that he used certain "scare tactics" to prevent or disperse criminal activity. He would advise individuals that the "jump-out boys" (narcotics tactical unit) were coming or advise that cameras were everywhere to clear the area. RBPD Officers Derrick Jackson, Gary Wilson, and John Toombs confirmed the use of such tactics. These officers credibly testified that, due to a shortage of manpower, at times they would implement certain techniques to encourage known narcotics dealers to leave an area of the street. These techniques varied from simply sitting in the patrol car in close proximity, advising subjects to leave, advising subjects they would be arrested, approaching the subjects, and suggesting the tactical unit was out. During the June 30, 2010, internal affairs interview, Respondent was also asked about the allegation that Respondent encountered Dean at the mall after the federal warrant had been issued for his arrest. The pertinent dialogue is set forth as follows: Officer Lewis: That is when you were at the mall, when you saw him when he was wanted? You knew that he was wanted, but you didn't call. And you stated that was because you didn't know the right thing to do at the time? Officer Gordon: Yes. Plus the safety of my son too. And the way he was acting, really, really bothered me. Officer Lewis: How was he acting? Officer Gordon: He smelled of--he reeked of marijuana and alcohol. You could smell it coming from him. His eyes were bloodshot and he was just, "I ain't trying to go back to jail--I ain't going back to jail." Is pretty much what he said. . . . Officer Gordon: . . . He (Dean) was looking to see if I was going to pick up my phone and call-- Freddie Dean--the guy you are looking for-- is in the mall right now, blah blah blah. . . . Officer Lewis: He wanted to see if you would dime him out? Officer Gordon: Exactly. Officer Lewis: But you didn't? Officer Gordon: Unh-uh (indicating negative). At the final hearing, Respondent initially testified that he did not know a warrant was active for Dean when he encountered Dean at the mall. Respondent conceded, however, after listening to the recorded internal affairs interview, that he was aware of a warrant for Dean during the mall incident. The undersigned finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent directly participated in or condoned illegal drug activity. Similarly, the undersigned finds the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised said individuals or other potential criminal targets of the placement of the Operation Worldwide surveillance cameras. The undersigned further finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised the criminal targets of when and where narcotics operations were to occur. Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30, 2003. Petitioner established, by clear and convincing evidence, that Respondent encountered Dean after the federal warrant was issued for Dean. At the time of the meeting, Respondent was aware of the warrant, and took no action to notify any members of the law enforcement community of Dean's recent location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012.
The Issue The issue is whether Petitioner’s application for a real estate sales associate license should be granted.
Findings Of Fact Petitioner is 36 years old. He has a bachelor’s degree and a master’s degree in environmental science. He also has a Juris Doctorate degree. Petitioner was licensed to practice law in Illinois in May 2002. His license was suspended in August 2006 by the Illinois Supreme Court as a result of the October 2005 criminal offenses discussed below. See Findings 12-14. The suspension of Petitioner’s license to practice law is for a period of 18 months and “until further order of the Court.” Thus, the suspension runs through at least February 2008. Petitioner is currently working part-time at a Barnes & Nobles bookstore in Tampa. Before that, he worked as an executive recruiter for several months. Before coming to Florida, Petitioner worked as an inspection and enforcement officer for the United States Environmental Protection Agency (EPA) in Illinois, and as an attorney and manager for title insurance companies in Illinois and Colorado. Petitioner has been offered a sales associate job by the Keller Williams real estate firm in the Tampa area. The offer is contingent upon the approval of Petitioner’s license application. Petitioner has a long history of alcohol and substance abuse, which he freely acknowledged in his testimony at the final hearing. He has been using illegal substances since his high-school years.2 Petitioner has four criminal offenses in his background, each of which involved alcohol. In June 1991, Petitioner was arrested in Indiana for driving under the influence (DUI). He pled guilty to the offense and spent four days in jail. Petitioner was 20 years old and in college at the time. In February 2004, Petitioner was arrested in Colorado for DUI with a blood-alcohol level of 0.17 percent, which was more than twice the legal limit. He pled guilty to the lesser offense of “driving while ability impaired” and was sentenced to probation and community service. In July 2004, Petitioner was arrested again in Colorado for DUI. He pled guilty and was sentenced to probation and community service. In October 2005, Petitioner was arrested at a concert in Boca Raton for possession of cocaine, criminal mischief (two counts), resisting arrest with violence, and battery of a law enforcement officer (three counts). The offenses were felonies. Petitioner testified that he does not recall any of the circumstances surrounding the incident because he was “extremely intoxicated” at the time. The police report of the incident, which Petitioner does not dispute,3 states that Petitioner punched a patron at the concert, punched a police officer, kicked another police officer, spit on a paramedic, damaged handcuffs and a police car, and was in possession of 0.5 grams of cocaine. The report also indicates that Petitioner was yelling, cursing, and acting belligerently throughout the incident. In January 2006, Petitioner pled no contest to the charges, and adjudication was withheld by the court. He was sentenced to 24 months of probation and 50 hours of community service; he was required to undergo an anger management class; and he was required to successfully complete a substance abuse treatment program and undergo random drug testing. Petitioner successfully completed his probation without incident and without any positive drug tests. An Order formally terminating Petitioner's probation was entered on March 15, 2007. Petitioner’s criminal offenses were not acts of youthful indiscretion or the result of momentary lapses of judgment. All of the offenses, except for the first DUI, were committed when Petitioner was in his 30’s and working in a professional capacity. Petitioner credibly testified that he has taken steps to turn his life around. He is active in a church group in the Tampa area, and he testified that he has not had a drink of alcohol or used illegal drugs since December 31, 2005. Petitioner does not currently attend Alcoholics Anonymous (AA) meetings, although he has done so in the past. He testified that he continues to live by AA’s principles and that he has a support system in place to help him remain completely abstinent from alcohol and drugs. There is no evidence that Petitioner committed any acts of fraud or dishonest dealing in connection with his work with the EPA or the title insurance companies. In October 2006, Petitioner applied for a real estate sales associate license. He was still on probation at that time. Petitioner fully disclosed his criminal history and the suspension of his license to practice law in Illinois in his license application. Petitioner’s license application was considered by the Commission at its meeting on December 13, 2006. Petitioner appeared at the Commission meeting with his attorney and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner’s license application. The denial was memorialized in a Notice of Intent to Deny dated January 3, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner’s criminal record, as revealed in the license application; the recent nature of Petitioner’s criminal offenses; the fact that Petitioner’s criminal history “shows a pattern and practice of criminal behavior over an extended period of time”; the fact that Petitioner “has not had sufficient time free of government supervision to establish rehabilitation”; and the suspension of Petitioner’s license to practice law in Illinois.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying Petitioner’s application for a real estate sales associate license. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of May, 2007.
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992, as amended, the Act or Chapter 760, Florida Statutes.
Findings Of Fact The Palm Beach County Sheriff's Office is a law enforcement agency that employs roughly 3,400 individuals, of whom approximately 1,200 are sworn law enforcement officers and 700 are sworn corrections officers. The remaining employees are civilian or non-sworn. Murphy was hired as a deputy sheriff by PBSO on October 26, 1992. He was continuously employed in that capacity until his termination on October 11, 2002. For portions of the time he worked for PBSO, Murphy also was employed at a Home Depot store and in his father's towing business. Murphy’s career at PBSO was the fulfillment of a life dream, one for which he had worked extraordinarily hard. Murphy's father worked in law enforcement, and instilled within his only son a dream "to serve and protect." Despite his family background, Murphy was not an obvious candidate for a career in police work. Murphy was a marginal student all his life. He failed second grade, and passing any academic subject was a struggle. Yet, he persevered, determined to realize his dream of following his father's footsteps. Murphy worked long hours on schoolwork, sports, and in the family towing business. He was able to attain a high school diploma by applying himself diligently to his academics and seeking out extra help. With constant practice and repetition of his class work, Murphy was able to master material well enough to pass necessary courses, but he was not good at transferring knowledge and information to other settings. Despite his weak academic history, or perhaps because of the perseverance it showed, Florida State University awarded Murphy a partial football scholarship. In pursuit of his life dream, Murphy chose to major in criminal justice. Again, he experienced academic difficulty. As he had done in grammar school and high school, Murphy sought out extra tutelage and put in whatever hours it took to complete his degree. In due course, Murphy applied for and obtained a job at PBSO, having fulfilled all its employment criteria, including being licensed to carry a firearm and having passed a psychological evaluation. Murphy's first assignment was road patrol. Road patrol in most law enforcement agencies, particularly those in large urban areas such as Palm Beach County, is an entry-level position, and a baptism by fire. Every traffic stop is potentially life threatening. Road patrol officers may be called upon on a moment's notice to provide back up to fellow officers who are under fire. Virtually every interaction with the public calls for grace and good judgment under stressful circumstances. The most ordinary of days on road patrol result in a need to generate reports. There are, as Murphy noted, "hundreds of formulas" which deputies must understand so that they can properly document traffic accidents. A working knowledge of Florida Statutes, criminal and civil procedure, and related court rules, is also required. It soon became apparent that Murphy was unsuited to road patrol. With its incessant demands upon him to quickly access and apply academic training to the infinite variables of street policing, road duty revealed that Murphy was unable to translate his classroom learning to the demands of the job. His supervisors were therefore obliged to spend a disproportionate share of time addressing situations created by Murphy's sub-par performance. After two years, Murphy was assigned to Palm Beach International Airport (PBIA). Murphy found this position more congenial. Freed of the stress of road patrol and its unceasing paperwork demands, Murphy’s weak academic skills were no longer a constant irritant to his supervisors. Nonetheless, Murphy's annual job evaluations make clear that in either assignment, his job performance was marginal. Murphy maintained excellent physical fitness and a professional appearance at all times, but was often rated borderline in areas involving judgment, ability to withstand pressure, and relations with colleagues and the public. As far back as his 1993-94 evaluation, Murphy's supervisors cited concerns regarding his common sense, and his ability to make sound decisions and to exercise good judgment. Murphy found it difficult to stay awake when assigned to the midnight shift, a problem that was easily remedied with a schedule change. Much more problematic was his difficulty in quickly and effectively writing reports. Murphy's deficiencies in report writing were noted on at least three annual evaluations, and PBSO made a good faith effort to assist Murphy in remediating his deficiency by providing him extra report writing training. Murphy places substantial significance upon an incident which he states occurred in April 1995 when he was on routine road patrol and was one of several deputies asked to respond to a domestic disturbance call. The incident involved unholstering his gun. Based upon Murphy's description of the incident and resulting symptoms years after the fact, doctors diagnosed PTSD. The 1995 incident was not documented in any PBSO records presented at hearing. The only evidence regarding PTSD is contained in Murphy's description of the event and his reaction to it, which he related to a number of doctors he saw in connection with his pending dispute with PBSO regarding his fitness for duty. Murphy expressed to some of these doctors that the transfer to PBIA was provoked by the 1995 incident, but there is no record or testimony corroborating Murphy's opinion in this regard. Murphy has always enjoyed his posting at PBIA, but his personnel file reflects that after three years there, his job performance remained well below reasonable expectations. Although he could handle most of the everyday tasks presented to deputies assigned to the airport, he at times appeared confused when called upon to make a decison for which there was no blueprint. He lacked the knowledge of criminal law and procedure, as well as basic airport operation, reasonably expected of a deputy with his experience. Supervisors gave Murphy credit for a "can-do" attitude and for promptness. However, he had a propensity to blame others or make excuses for his mistakes. It followed that Murphy continued to require a disproportionate share of attention of supervisors, even on routine decisions. Several years into his career, he continued to struggle with basics, for example, maintaining composure when challenged by members of the public or given constructive feedback by colleagues or supervisors. In 1998, it was recommended that Murphy be required to re-enter the field training officer ("FTO") program, and spend at least six months on road patrol to provide "much needed experience and the self confidence that is presently lacking." By the 1998-99 evaluation, supervisors' impatience with Murphy was growing. While acknowledging his ambition and willingness to pursue educational opportunities, the report noted his continued propensity to become aggressive with co- workers and antagonistic to supervisors and "apparent inability to control his temper." Murphy completed the FTO remedial training recommended the previous year, as well as eight additional courses aimed at improving his performance, and achieved an overall performance evaluation of "average, meeting the basic requirements of most [job] descriptions." In early 2000, Murphy received a 90-day unsatisfactory performance notice. In-house remedial training was offered, but the tone of the evaluator was decidedly impatient and frustrated. Murphy's supervisors began to document specific instances of their dissatisfaction with his performance. One example from his 2000 evaluation reads: "After an incident where [Murphy] had taken 21 hours to complete a simple drug arrest, he was placed with an FTO in the airport. These training sessions had little effect on his overall job performance. " While some improvements were noted in 2001, Murphy was again counseled on common sense, judgment and job knowledge. Against this background, an incident occurred on January 18, 2002, which would eventually result in Murphy’s termination. Early that morning, Murphy was off-duty and in a hurry to catch a flight out of PBIA to Washington D.C. via Charlotte. As a result of five years’ experience enforcing airport security protocols, Murphy was well aware that it was impermissible to leave baggage at the skycap station while he parked his car. However, Murphy identified himself as a deputy assigned to the airport and insisted that the skycaps check his baggage for him while he parked. Inside the airport, Murphy observed a lengthy passenger screening line. Murphy admits to feeling "entitled," in that this would be his first vacation in two years. Determined to make his flight, he formed an intent to cut to the front of the line to pass through the metal detectors and then to his gate. Murphy made contact with a fellow deputy, David Shoemaker (Shoemaker) who had been assigned to the airport less than six months. Shoemaker told Murphy to come around the metal detector, which he did, chatting briefly with National Guard officers on duty, as well as the "screening people,” all of whom were well known to him from his years of service at PBIA. At hearing and at all times since the incident, Murphy has attempted to deflect responsibility, saying, ”My intent was to cut in line. My intent was to go through the screening process. However, the deputy sheriff was on duty. I did what I was told, and I walked around the screening area. " It was Murphy, not Shoemaker, who was the experienced sheriff's deputy in this situation. Murphy was reasonably expected to know, particularly in the post-September 11 environment, that it was inappropriate, and possibly illegal, to seek special treatment based upon his personal acquaintance with security personnel. Members of the general public witnessing this "professional courtesy" could be reasonably expected to be irritated, angry, or even in fear for their safety, inasmuch as Murphy was dressed in civilian clothing; the public had no way of knowing that he was any more "safe" than the wheelchair-bound elderly people and babies who are screened in the interests of passenger safety. In this instance, one person was sufficiently annoyed or concerned to report the incident to airport officials and to seek an explanation. By this time, Murphy and his bags were enroute to Charlotte, N.C. At the Charlotte Airport, Murphy and his luggage were briefly detained and searched, and he was thereafter allowed to proceed to his final destination. At some point while on vacation, Murphy called a person named Gilbert Johnson, whom Murphy identified as a friend of his from the National Guard. According to Murphy, "Gilbert had told me that everybody was telling me [sic] I was going to jail for a federal crime, and I was very scared and very worried. " There was no evidence to suggest that Murphy was ever in danger of being jailed for a crime, federal or otherwise. However, the poor judgment he exercised in the service of making his plane would, in time, result in credible medical evidence that Murphy could not, at all times relevant, fulfill the requirements for service as a sheriff's deputy, with or without accommodations. Shortly after the January 18 incident, PBIA officials asked that Murphy be removed from his airport posting, at least until the incident could be investigated. Even before he returned from vacation, PBSO had decided that Murphy would be reassigned to road patrol. Upon his return to work, Murphy met with supervisors. At some point in this meeting, he ceased to participate, instead exercising his right to be represented by counsel. Murphy was informed that he would be suspended with pay pending the outcomes of routine criminal and administrative investigations. Although the facts surrounding the incident were in all material respects undisputed, it took months for PBSO to conclude its internal affairs investigation, which ended with a recommendation that Murphy receive a two-day suspension for having improperly used his status as a law enforcement officer to gain special privileges not available to the general public. No state or federal agency pursued criminal charges against Murphy. Neither the internal affairs investigation nor criminal investigation(s), if any there were, played any role in Murphy's eventual termination. Murphy's anxiety about what he perceived as immense threats to his employment and to his liberty persisted and fed on themselves. The delay in completing the internal affairs investigation exacerbated his fears, particularly his baseless belief that he would be sent to jail for having sought and received special treatment at PBIA. Murphy persisted in the belief that jail was a real possibility, and he was consumed with worry. Almost as distressing to Murphy was the possibility that he would be returned to road patrol, a job for which Murphy correctly believed he was unsuited. In the immediate aftermath of the PBIA incident, Murphy's problems, real and imagined, combined to cause him to decompensate. He became physically ill and emotionally distraught to a degree which rendered him unfit for duty. To his credit, Murphy informed his supervisor that he was uncertain of his present ability to adequately back up fellow officers should the need to do so arise. Concerned for Murphy's well being, a PBSO supervisor sent to his home deputies to check on him, and immediate arrangements were made to have him evaluated by Dr. Raul Diaz (Dr. Diaz). Dr. Diaz supported Murphy's belief that he was at the time temporarily unfit for duty. Dr. Diaz recommended psychological evaluation by Dr. Myles Cooley ("Dr. Cooley"). At hearing, Murphy stated his belief, but offered no evidence, that officers who are the subject of an internal affairs investigation are granted administrative leave to preserve their full salary and benefits pending the outcome of the investigation. In this case, PBSO insisted that Murphy take family medical leave beginning on Februry 1, 2002. By this time, Murphy felt he was able to return to work and sought to persuade PBSO to return him to PBIA. To that end, he cooperated with PBSO's efforts to obtain medical and psychological evaluations. He also proceeded on a parallel track, seeing medical professionals of his own choosing and cooperating in the testing, evaluation, and medication regimens they recommended. In February 2002, Murphy's attorney provided PBSO with signed prescription pad notes from two medical doctors, Sanford Kaufman and Kevin Inwood. Dr. Kaufman’s note read, "No psych diagnosis other than reactive stress. Okay to return to work, no restrictions." Dr. Inwood wrote, "Pt. Is fit for duty after today exam not completed." Neither note indicated the respective doctor's area of specialization, credentials, what tests had been performed on Murphy, what information concerning Murphy had been furnished to them, and from what sources. Standing alone, these doctors' notes did not furnish a factual basis upon which a reasonable person could conclude that Murphy was fit for duty. Meanwhile, Murphy continued to cooperate in evaluations commissioned by PBSO. Dr. Cooley saw Murphy in March and April 2002, and conducted exhaustive testing, including evaluations for attention dysfunction, learning disabilities, and other disorders that might affect his job performance. In speaking with doctors in the course of these evaluations, and in his testimony at hearing, Murphy acknowledged that both before and after being diagnosed with ADD, ADHD, and PTSD, he was fully able to perform the numerous activities of daily living pertinent to a man of his age who has always been active in sports and has held physically demanding jobs. Murphy is unrestricted in his ability to lift, see, hear, breathe, swim, sit, stand, bathe, and dress, all of which are necessary to the performance of active police work, and countless other jobs requiring an individual to be in good physical condition. At all times material to this case Murphy is qualified to work in construction, having built the home he lives in. He is also licensed to operate any type of vehicle, continues to work in the family towing business, and has worked in retail. In his final report dated April 8, 2002, Dr. Cooley concluded, in pertinent part: In this examiner's opinion, Mr. Murphy does have Attention Deficit Hyperactivity Disorder and is significantly intellectually limited. He does not qualify for a diagnosis of a learning disability because his IQ and his academic skills are quite similar. In a more generic sense, however, he is clearly learning disabled based on his limited cognitive skills particularly in the verbal domain. Finally, Mr. Murphy appears to be experiencing a Generalized Anxiety Disorder or an Adjustment Disorder with Anxiety. Mr. Murphy's behavior in the presence of this examiner indicates severe anxiety and fear that he reacts to with anger, denial, defensiveness, and suspicion and he tries to protect himself from people and procedures he does not fully understand. He could truly benefit from some counseling as he awaits the resolution of his employment status. Dr. Cooley's evaluation was forwarded to Murphy's counsel, and to Dr. Diaz, who, after re-evaluating Murphy and reviewing prior test results and Dr. Cooley's report, prepared a second report for the PBSO. In this report dated May 9, 2002, Dr. Diaz concluded that "Murphy, within reasonable probability remains not fit for duty to function in law enforcement at this time." Dr. Diaz left open the possibility that with appropriate treatment, Murphy may, at some future date become fit for law enforcement duty. However, on September 16, 2002, Murphy's own doctor, forensic psychiatrist Harley Stock (Dr. Stock), opined in pertinent part: . . . Murphy is likely to have difficulties in carrying out the following specific duties and responsibilities of a law enforcement officer: Subdue resisting offenders using appropriate force, including the use of deadly force – Deputy Sheriff Murphy may become emotionally overwhelmed if placed in a position in which lethal force may be necessary. In this regard, such behavior may lead to the endangerment of the public or other officers. Conduct law enforcement investigations – Deputy Murphy has a difficult time formulating appropriate law violations. Because of his limited cognitive abilities, he will have difficultly preparing and distributing reports. These deficits may manifest themselves in difficulty coordinating activities at crime scenes; collecting crime scene evidence; conducting interviews, taking sworn statements, formal confessions or depositions; preparing reports of affidavits; and presenting testimony in both civil and criminal proceedings. Should Deputy Murphy be placed in a situation in which his anxiety level overwhelms him, he will have difficulty interacting with the public. His judgment is likely to be impaired in such a situation and he may not follow appropriate procedures. He is also likely to have difficulties in the following area performance aptitudes: Data Utilization – Deputy Sheriff Murphy will have difficulty calculating or tabulating data or information in a systemized way. He also may have difficulty performing actions subsequent to these computational operations. In terms of situational reasoning, Deputy Sheriff Murphy is likely to have difficulty exercising good judgment and decisiveness in those situations that are unexpected and involve exposing the Palm Beach County Sheriff's Office to significant litigation. Based on the above, it is this examiner's opinion that Deputy Sheriff Murphy should be considered permanently unfit for duty. It is further my opinion that no reasonable accommodation can be offered and that his impairment is a direct result of his employment as a law enforcement officer. . . . No purpose is served by additional invasive recitation of the content and conclusions of reports and testimony provided by doctors who evaluated Murphy. The evidence regarding Murphy's fitness for duty, with or without accommodation, has been carefully considered and demonstrates that no combination of job accommodations, medication, treatment or training, would render Murphy able to fulfill the requirements for service as a deputy sheriff at any time material to this case, including at the time he was terminated on October 11, 2002. Notwithstanding the medical evidence, Murphy contends that PBSO had, and continues to have, the ability to ". . . put me into another law enforcement position, which they can clearly still do." With all respect for Murphy's opinion, the unambiguous testimony provided by Respondent’s human relations office is that PBSO does not distinguish between what a deputy is required to do at the airport, on road patrol, or behind a desk. To the contrary, officers assigned to PBIA, or off duty officers for that matter, may be mobilized on a moment's notice to address a profoundly dangerous and chaotic situation, at their assigned post, or elsewhere in the jurisdiction. Contrary to the assertion in his FCHR charge, there was no evidence that Murphy "ask[ed] for help with his law enforcement duties." He rejected as insulting any discussion of being placed in a civilian position or a position involving a substantial wage cut. The only accommodation he sought was re- assignment to PBIA in his former position.
Recommendation Based on the above Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Petitioner’s charge of discrimination and dismissing his complaint. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of August, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael G. Whelan, Esquire Whelan, DeMaio & Kiszkiel, P.A. 80 Southwest Eighth Street, Suite 1830 Miami, Florida 33130 Jack Scarola, Esquire Searcy Denney Scarola Barhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2006-2008),1/ and if so, what penalty should be imposed?
Findings Of Fact Respondent, John McAlpin, is a certified law enforcement officer, having been issued law enforcement certification No. 148408. At all times material to the allegations in the Administrative Complaint, Respondent has served as the Chief of Police of Sneads, Florida. At the time of the allegations giving rise to this case, A.G. was a 14-year-old girl from Sneads, Florida. At the start of the events at issue in this case, A.G. lived with her mother, Christina Simpson (now known as Christina Griffin); her step- father, Shelly Simpson; and her younger half-brother. On January 24, 2007, the Abuse Hotline of the Florida Department of Children and Families (DCF) received a call regarding the possible sexual abuse of A.G. by her step-father. A.G. was interviewed that same day by Amy Bates, a Child Protective Investigator, while she was still at school. Once A.G. indicated that she had been sexually abused, the initial interview was terminated, and Ms. Bates contacted Ms. Simpson for permission to have A.G. interviewed by the Child Protection Team (CPT). After receiving permission from her mother, A.G. was transported to the DCF offices and interviewed by a member of the CPT. Her CPT interview was admitted into evidence as Petitioner's Exhibit 2. Ms. Bates attempted to contact Respondent prior to the CPT interview so that, consistent with the Department's customary practice, law enforcement could observe the interview. At the time A.G.'s mother arrived at the DCF offices, Ms. Bates had not heard from Chief McAlpin, so she asked Lieutenant Daniels of the Jackson County Sheriff's Department (JCSO) to observe the interview as a courtesy to the Sneads Police Department (SPD). Lt. Daniels was already present at the DCF offices for reasons unrelated to this case. In the interview by the CPT team member, A.G. indicated that she had been molested by her stepfather, Shelly Simpson, over a period of two years, during which he touched her inappropriately and tried, without success, to have sex with her. She stated that the most recent times he had molested her were the morning of the interview, and over the Martin Luther King Day weekend. The CPT interview began at 3:15 p.m. and lasted approximately 45 minutes. At 4:00 p.m., Ms. Bates again attempted to call Chief McAlpin at SPD and was given his cell phone number, which she also called. After speaking with A.G.'s mother, Ms. Bates again called the police station at 4:28 to get an officer to accompany her to the home to meet with the stepfather. Only after contacting Lieutenant Daniels for assistance did she receive a call indicating that someone would meet her at the office of the SPD to go to the Simpson home. Ms. Bates and Ms. Simpson went to the police station where they met Officer Jarrett Tyus of the SPD. At that time, a copy of the CPT interview was left on Chief McAlpin's desk. The three adults proceeded to the Simpson's home: A.G. did not accompany them but instead went home with her aunt. Officer Tyus, Ms. Bates, and Ms. Simpson arrived at the Simpson home at approximately 5:45 p.m. Officer Tyus went to the door and spoke to Mr. Simpson, and brought him over to Ms. Bates, who reviewed the report of sexual molestation with him. Respondent arrived at the home at approximately 5:55 p.m. At that time, he spoke to Ms. Bates and to Ms. Simpson, and appeared to be aware of the nature of the allegations. Chief McAlpin stated that the allegations were out of character for Mr. Simpson, and asked Ms. Simpson if she had noticed anything, or if she and Mr. Simpson were having any problems. Chief McAlpin stated that these were serious allegations and that he did not know A.G., but he had known Mr. Simpson all of his life: that they were friends, and there would be an investigation. Ms. Bates did not observe Respondent gather any evidence at the family home that evening. Although he spoke to Shelly Simpson, he did not attempt to interview anyone at the Simpson home. Nor did he make any attempt to interview A.G. that day. Ms. Bates had concerns regarding Chief McAlpin's ability to handle the investigation objectively, given his knowledge of and prior relationship with the suspect, Mr. Simpson. Mr. Simpson was also an employee of the City of Sneads at the time. She expressed those concerns to her then- supervisor, Tamara Hudson. As a result of their conversation, Ms. Hudson called Lt. Daniels and requested that he "step in" and take over the investigation. However, the investigation remained with the SPD, and Chief McAlpin, for the time being. Typically, when there is an investigation regarding possible sexual abuse of a child, the DCF staff working the case would be in close, regular contact with the law enforcement investigator assigned to the case. However, after the evening of January 24, 2007, Ms. Bates had no face-to-face contact with Chief McAlpin during the investigation. Ms. Bates did, however, speak to him on January 31, 2007, to let him know that the CPT medical report had been received and, at his request, faxed a copy of the report to him. Once there was a determination that the complaint was founded, on February 1, 2007, the case was transferred to Anissa Cottongim, who worked as a case manager in the area of child protection. From that date until DCF closed the case in July 2007, Chief McAlpin never called Ms. Cottongim. There was, however, information provided to Chief McAlpin from DCF during this period. On February 14, 2007, Amy Bates spoke to Anissa Cottongim, who informed her that there was a possibility that there were other victims of sexual abuse by Mr. Simpson. Ms. Bates called Chief McAlpin on his cell phone and left him a message to return her call. She called again, about a half hour later, and spoke to him about the possibility of other victims. Chief McAlpin inquired whether the potential victims were family members of A.G., and was told that they were not related. Chief McAlpin indicated that Shelly Simpson had mentioned something to him the day before, and that he would call back in a few minutes and speak to Ms. Cottongim. He did not do so. Ms. Cottongim also forwarded to him the results of a psychosexual examination of A.G., although the date the report was transmitted is not apparent. Chief McAlpin denies receiving the information regarding other possible victims during his investigation. Ms. Bates' testimony is credited. On February 12, 2007, Respondent took the sworn statement of Shelly Simpson. While Mr. Simpson apparently requested a polygraph test, no such test was ever actually administered. On February 22, 2007, Chief McAlpin interviewed A.G. for the first time. He requested that Christina Simpson bring A.G. into his office for an interview. At that point, Ms. Simpson stated that she was confused and did not know "which way to go." Chief McAlpin asked for and received permission to interview A.G. alone, for the stated purpose of seeing if she were telling the truth or lying. Chief McAlpin told Ms. Simpson that he did not believe Mr. Simpson had molested A.G. The interview with A.G. was recorded, although Chief McAlpin told her the conversation was "just between us." He hid the tape recorder behind a sign on his desk so that she could not see it. The interview was over two hours and nineteen minutes long. Major Dennis of the JCSO opined that the interview sounded more like the interrogation of a suspect than the interview of a child victim. He also opined that it appeared from listening to the interview that Chief McAlpin was attempting to get A.G. to change her testimony. Major Dennis' description is an understatement. During those two-plus hours, Chief McAlpin told A.G. repeatedly that he believed she was lying and that it was "okay to make this right." While berating her, he told her he was her friend and that she was in no trouble. He also said, however, that she had told a "circle of lies" and did not want to be labeled as a liar, and that "sometimes people tell something so many times, they believe it." He asked A.G. if she was mad at her stepfather, whom he repeatedly referred to as Shelly, and that if she wanted him out of the home, Chief McAlpin could help her get what she wanted. He reminded her repeatedly that this case was serious and would affect a lot of people, and that it was time to "put some closure to this one way or another." He also asked her what she wanted to happen to her stepfather, who loved her and raised her and was like a dad to her. Respondent asked whether A.G. wanted him "locked up in prison with killers, robbers, and rapers," and stated that he did not want to put an innocent man in prison. Chief McAlpin asked A.G. how she would feel if her ten- year-old brother told people that she was doing bad things to him, and whether she would want someone to talk to him to get to the bottom of things and clear her name. He repeated several times that he believed that there were problems in the home and that A.G. had "issues" and was in need of counseling. He told this 14-year-old girl, who was alone in this lengthy interview with him, that she needed long-term, "in-house" counseling.2/ The examples given in paragraphs 21-22 are just a small sampling of the barrage of statements hurled at A.G. during this "interview." The number of questions actually asked of her could probably have been answered in a 15-20 minute span, at most. The remainder of the time, Chief McAlpin was suggesting reasons why she should recant; telling her how unbelievable she was; that there was no physical corroborating evidence; and what an ordeal she would face if she did not change her story. Yet through it all, while quietly crying, A.G. did not change her story. By contrast, Respondent acknowledged that with respect to his interview with Shelly Simpson, the suspect in this sexual molestation case, he "did not put a lot of pressure on him." At some time after interviewing A.G., Respondent spoke to Mark Sims, the State Attorney. He described the evidence that he had and opined to Mr. Sims that he did not think that there was sufficient evidence to charge Mr. Simpson. At that time, he considered the case to be over. During the time that Chief McAlpin was in charge of the investigation regarding A.G. and Shelly Simpson, A.G.'s grandfather, Robert Griffin, became very dissatisfied with the progress, or lack of it, of the investigation. He complained several times to Major Dennis of the JCSO. Eventually, on or about April 2, 2007, the JCSO took over the investigation, and the case was assigned to Lt. Daniels. Lt. Daniels did not request a copy of the investigative file compiled by Chief McAlpin, and the contents of Respondent's file are not in evidence. Lt. Daniels decided, given the controversy surrounding the case, he would start fresh. He reworked the case as if he had investigated it from the beginning. Almost immediately he arranged for a second medical exam, this time with a female doctor. Lt. Daniels interviewed all the witnesses he knew about and put together as much information as he could before interviewing Shelly Simpson, consistent with his usual practice to interview the subject of an investigation last. His interview with Mr. Simpson took place May 24, 2007. On June 28, 2007, Lt. Daniels submitted his file to Assistant State Attorney Jonna Bowman, with a criminal complaint affidavit charging Mr. Simpson with child abuse and sexual battery. When Ms. Bowman received the file from Lt. Daniels, he explained that he had taken over the case from SPD. She understood that Lt. Daniels did not have the file compiled by Chief McAlpin, and she requested the information from Respondent shortly after July 2, 2007. Respondent called her on July 5, 2007, saying he would bring her his file, along with the taped interview of A.G., the next day. He did not do so. A second request for the information was made, and again the information was promised but not provided. Ms. Bowman did receive some information in August and at some point drove to Sneads to talk to him about his investigation. At that time, Chief McAlpin kept telling Ms. Bowman that A.G.'s story had a lot of inconsistencies in it. He told her he had not quite finished his reports on the case, and did so while she was there, so he could print the information out and give it to her. Chief McAlpin also told her about his interview with A.G., which he represented to be approximately 30-45 minutes, and gave Ms. Bowman a digital recorder which was supposed to contain the interview. However, the recorder contained no interview of A.G. One of the "inconsistencies" upon which Respondent placed great emphasis had to do with the clothing A.G. wore the day that she went hunting with Mr. Simpson and shot her first deer. Chief McAlpin described a picture to Ms. Bowman in which he claimed A.G. was wearing overalls while holding her first deer. He stated that her claim that Mr. Simpson molested her that day was not credible because the molestation could not take place with A.G. wearing overalls. However, at a subsequent visit to the A.G.'s home, Ms. Bowman observed the picture of A.G. holding her first deer. She was not wearing overalls. Ms. Bowman asked again for the interview, and at some point in October 2007, a recorder labeled as belonging to SPD appeared on her desk, with no note of explanation. She found the interview difficult to listen to, but did not find the inconsistencies that Respondent claimed to exist in her story. A capias was issued for Shelly Simpson's arrest on October 9, 2007, charging him with lewd and lascivious molestation. Ms. Bowman left the State Attorney's office before the criminal trial and did not try the case. However, Mr. Simpson was found not guilty by a jury on October 3, 2008. Robert Griffin, A.G.'s grandfather, remained dissatisfied about the way the case was handled, and filed a complaint with the Governor's Office, which was referred to the Department of Law Enforcement (FDLE) in late 2007. In connection with FDLE's investigation, Chief McAlpin consented to a sworn interview by FDLE Investigator Ed Fortune. The interview, which was taped and admitted into evidence as Petitioner's Exhibit 3, is approximately 3.5 hours long. In that interview, Chief McAlpin stated that he requested the CPT interview tape on January 24, 2011, "as soon as I could get it" and got the tape through Officer Tyus. His statement conflicts with that of Amy Bates, and Ms. Bates' testimony is credited. However, inasmuch as the tape was placed on Chief McAlpin's desk as opposed to being given to him directly, it is conceivable that Chief McAlpin believed that Officer Tyus had obtained the tape and placed it there. Chief McAlpin stated that prior to the interview Ms. Simpson told him that she believed her husband and thought A.G. would admit that the story was a lie. At hearing, Ms. Simpson testified that she was confused and did not know which way to go. However, it is entirely possible that both statements are correct in that Ms. Simpson was placed in the untenable position of believing either her daughter or her husband, and may have voiced more than one opinion as time went on. Chief McAlpin also states repeatedly in the interview that he was not aware that there was information regarding additional victims when he completed his investigation. His statement conflicts with that of Shelly Bates, and Ms. Bates' testimony is credited. Further, Respondent knew it to be a false statement when he made it. During the interview with Mr. Fortune, there was some discussion regarding letters that were in A.G.'s room. These letters were characterized as inconsistent in terms of language and sexual knowledge with what A.G. had exhibited in the investigation. Chief McAlpin had become aware of the letters through either Christina Simpson or Shelly Simpson. When he did not receive the letters through Ms. Simpson, he asked Shelly Simpson to retrieve them. Chief McAlpin admitted that he had never asked any other subject of an investigation to retrieve evidence, and that the letters would have no chain of custody. He admitted that the letters had no evidentiary value, and that he could not be certain A.G. even wrote them, but in his mind they were relevant to disprove A.G.'s story. Much of the interview with Mr. Fortune deals with the quality of Respondent's investigation and the decision-making behind his investigative choices. He chose not to talk to key people in DCF because he did not know them; did not collect physical evidence; and did not clarify with DCF investigators or medical personnel those areas that he claimed were puzzling or inconsistent. In short, from a review of all of the evidence presented in this case, it appears that Chief McAlpin decided early on that A.G. was not telling the truth and conducted his investigation, to the extent he investigated at all, with the intention of disproving her allegations as opposed to investigating her complaint.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, John McAlpin, be found guilty of failing to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and That Respondent's law enforcement certification be suspended for a period of eighteen months, followed by two years' probation. DONE AND ENTERED this 26th day of October, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2011.
The Issue Whether Petitioner has demonstrated rehabilitation from her disqualifying offense, and whether Respondent’s intended agency action to deny her request for an exemption is an abuse of discretion.
Findings Of Fact Respondent is the state agency charged with providing services to persons with developmental disabilities, including those with autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. The population the Agency serves is one with a heightened risk for abuse, neglect, and exploitation, and people employed to work with this population are considered to be in positions of special trust. Anyone seeking employment with an entity that serves this fragile population is required to undergo a Level 2 screening, in order to ensure that someone who has been convicted or found guilty of certain enumerated crimes is not placed in a position of trust with the people the Agency serves. Petitioner applied for a position with an entity called “The Mentor.” The position for which she applied required that she undergo Level 2 screening. A Level 2 background check was performed by the Department of Children and Families. The background check included criminal history record checks at state, national, and local levels. Petitioner’s state and local criminal record checks were clear. However, the background check revealed that Petitioner has a disqualifying offense that was committed in 2002 in Virginia. The background check also revealed some subsequent arrests and one non-disqualifying conviction occurring after the disqualifying offense. On December 14, 2015, the Department of Children and Families notified Petitioner by letter that she was disqualified from employment by virtue of her disqualifying offense, identified in the letter as grand larceny. The letter notified Petitioner of her eligibility to seek an exemption from disqualification. Petitioner completed a Request for Exemption Questionnaire, which was provided to her. She obtained those documents related to her criminal history that were available, but was unable to retrieve all of them due to the passage of time. She also submitted copies of documents related to her training and education, employment history, and restoration of her civil rights. There is an Exemption Review Request Checklist that gives some aide in completing the exemption packet, but there does not appear to be a set of instructions or any directions regarding what is sought in the questionnaire. For example, the checklist and the questionnaire speak of providing information regarding “each of your criminal offenses.” There is no explanation that “offenses” is meant to include not only convictions, but guilty and nolo contendere pleas, and arrests where the charges were dismissed. Similarly, the questionnaire asks the applicant to list “stressors” existing at the time of the disqualifying offense and existing now, but does not ask an applicant about their background. Petitioner testified that she called the Agency with questions regarding information to be supplied with the questionnaire, but did not get any meaningful assistance. By letter dated May 27, 2016, Barbara Palmer, as director of the Agency, notified her that the Agency had denied her request for exemption from disqualification because she had not submitted clear and convincing evidence of rehabilitation. No further explanation of the Agency’s decision was provided. Petitioner was notified of her right to request an administrative hearing if she disputed the Agency’s decision, and she timely invoked this right. Petitioner was born June 25, 1982, and is approximately 34 years old. She never knew her father, and her mother was a drug addict. Her older brother provided what little parenting she received, and the environment in which she grew up had no real moral compass. As a result, it was easy for Petitioner to become entangled with people who were not healthy influences. The Disqualifying Offense The offense which disqualifies Petitioner from holding a position of trust occurred on February 13, 2002, when she was 19 years old. Ms. Smiley was a back-seat passenger in a stolen car. When the car was stopped by police, the others in the car fled the scene. Ms. Smiley did not flee, but refused to give up the names of those who had. As she stated in her exemption questionnaire, “I was young and dumb at the time, and believed I was protecting my friends by not giving the cops their names. I was very very foolish!” Ms. Smiley was originally charged with grand larceny (the crime that the Department of Children and Families identified), but pled to and was found guilty of receiving stolen property, a felony under Virginia law, as well as a lesser included misdemeanor offense of eluding a police officer. As a result of the plea agreement, on May 30, 2002, Ms. Smiley was sentenced to two years’ incarceration for Count 1 and 12 months’ incarceration for Count 2. The court suspended the sentences for both counts, subject to two years of unsupervised probation, payment of court costs of $1,315.50 and restitution of $700 to the owner of the car.1/ As of February 1, 2008, Petitioner paid both the costs and the restitution related to her disqualifying offense, and she received releases of judgment for them from the Norfolk County Court. She also wrote a letter of apology to the victim and stated in the questionnaire that the victim in turn had given her encouraging words regarding the importance of the company one keeps that she has taken to heart. Subsequent Criminal Events Agencies conducting disqualification exemption requests are permitted to consider arrests and convictions that occur after any disqualifying offense, whether or not the subsequent event would be considered a disqualifying offense if the applicant was found guilty, and regardless of the disposition of any arrest. Based on its authority to do so, the Agency considered the following events in Petitioner’s past when it denied her request for an exemption. There was some mention at the hearing of an arrest in 2003, which the Agency indicates was explained in an e-mail which would be in Respondent’s Exhibit I. However, as noted previously, Respondent did not submit Exhibit I after the hearing, and there is no documentation regarding this arrest. However, it appears from the brief testimony at the hearing on this issue that Petitioner was actually the victim in this incident, and the charges against her were dismissed. On January 23, 2006, Petitioner was arrested and charged with indecent language. Petitioner was 23 at the time. The charge was dismissed on January 26, 2006. Petitioner explained that she had gotten into an argument with a friend when she learned the friend was seeing Petitioner’s boyfriend, and used some off-color language during the argument. It is surprising that this could, in this day and age, even be a criminal offense that is actually charged. One cannot help but wonder how small the employment pool would be if all who used indecent language could not hold positions of trust. Nonetheless, this ten-year-old arrest is a factor that the Agency considered, concluding that it was evidence of Petitioner’s lack of judgment. On June 1, 2009, Petitioner was arrested for failure to appear. The Norfolk, Virginia, criminal records indicate that the offense date was June 30, 2008. The charge was dismissed on June 29, 2009. Petitioner testified candidly that she totally forgot her court date and was remorseful about doing so. On June 14, 2009, Petitioner was arrested for obstruction of justice, a misdemeanor. Petitioner apparently pled guilty and was sentenced to 90 days in jail, with 80 days of the sentence suspended. Petitioner paid the costs associated with this offense on or before October 5, 2009. Petitioner explained that she and some friends had been partying, and that she “mouthed off” at a security guard. She described her behavior has “completely out of line,” for which she took full responsibility. She no longer drinks alcohol or parties, because she wants to be a better role model for her children. As is explained below, Petitioner left the Norfolk area and moved to Fairbanks, Alaska, where she sought and received training in counseling for alcohol and drug abuse. She worked as a counselor in Fairbanks until moving to Florida in 2013. Her efforts to obtain employment in Florida have been stymied by the requirement for Level 2 screening. While she has not been employed since moving to Florida, she has worked toward obtaining her education and has been active in her church and her children’s education. Educational History On June 15, 2002, after the entry of the felony plea, Ms. Smiley graduated from Granby High School in Norfolk, Virginia. On October 6, 2011, Ms. Smiley received her certification from the Regional Alcohol and Drug Abuse Counselor Training Program (RADACT), in Anchorage, Alaska, as a Counselor Technician/Behavioral Health Aide I. To earn this certification, she completed 112 hours of coursework from September 19 through October 6, 2011. On January 26, 2012, Petitioner completed two hours of continuing education in clinical documentation, approved by the State of Alaska, DHSS Behavioral Health. On June 7, 2012, Petitioner received a certification for the completion of a Motivational Interviewing course offered by RADACT, representing 16 contact hours. On October 4, 2012, Ms. Smiley received her certification from RADACT, as a Level I Counselor. To earn this certification, she completed 112 hours of coursework from September 17 through October 4, 2012. All of the certifications from RADACT indicate that the coursework has been approved by the National Association of Alcoholism and Drug Abuse Counselors and will be accepted by the Alaska Commission for Behavioral Health Certification. Ms. Smiley submitted documentation indicating that she had attended classes at Valencia College in the summer of 2015, taking classes toward her college degree. She also has taken courses at Seminole State College, although the time frame for this coursework is unclear from the documentation presented. Employment History Petitioner submitted the following information related to her work history on the exemption questionnaire. From May 14, 2000, to September 16, 2003, Ms. Smiley worked on a seasonal basis as a summer camp worker for the City of Norfolk Parks and Recreation Department. The undersigned notes that she was employed in this capacity during the time period when her disqualifying offense occurred, and that the City of Norfolk continued to employ her working with children, despite her felony conviction. There is no indication that any child was harmed as a result of the care she provided to children during her employment with the city. From October 1, 2003, to June 10, 2005, Petitioner worked as a youth counselor for the YMCA in Norfolk. Her job duties included assisting with homework and after-school activities in the YMCA’s before and after school programs. Ms. Smiley held this job working with children not long after her felony conviction, in the same town where the conviction occurred. Petitioner worked for the City of Norfolk, Parking Division, from June 10, 2006, through October 1, 2008, collecting parking fees. The City of Norfolk employed her in a position involving the collection of money despite her felony conviction for receiving stolen property. Ms. Smiley moved to Alaska, and from February 2, 2009, to February 13, 2013, Petitioner worked for Fairbanks Native Associates in Fairbanks, as a counselor.2/ In that capacity, she worked with clients to develop ways to cope with issues such as HIV, grief, stress, and addiction, and, potentially, to incorporate 12-step programs to assist with recovery and prevent relapse. With each of her jobs, Petitioner remained employed for a minimum of 20 months to approximately four years. Ms. Smiley left her job in Alaska in order to move to Florida. While she has sought employment in Florida, she has been unable to get past the Level 2 screening and cannot work in the field for which she has trained because she does not have an exemption. Community Involvement On December 9, 2015, Ms. Smiley’s civil rights to vote, hold public office, serve on a jury, and to be a notary public were restored by the Governor of Virginia. She has completed an application to register to vote in Florida. Ms. Smiley has three special-needs children and is an involved parent. She attends all of her children’s school functions and belonged to the PTA at her children’s elementary school. She also attends church twice a week and is active in a faith-based organization called “I am Judah.” Petitioner also provided to the Agency two positive letters regarding her character, from Daquisha Presley and Shavon Haskins. Both letters are glowing in their praise of Ms. Smiley, but contain no real explanation of how the writers know her or any description of activities in which she is involved that would point to rehabilitation. However, both letter-writers are from Virginia, making their attendance at a hearing in Florida unrealistic. Both writers speak of Ms. Smiley’s thoughtfulness and giving heart, with Ms. Presley also referring to her strength, grace, compassion, leadership, courage, and faith. The Agency’s Decision The Agency declined to grant Petitioner’s request for exemption, stating that she had not provided clear and convincing evidence of rehabilitation. At the hearing, the Agency gave little explanation regarding the reasoning behind its decision. It is unclear whether Agency personnel realized that Ms. Smiley’s disqualifying offense was receiving stolen property, as opposed to grand larceny, as identified in the Department of Children and Families’ December 14, 2015, letter. Mr. Sauve testified that Ms. Smiley’s lack of employment after moving to Florida was troubling and that the Agency had considered her non- disqualifying offenses since the 2002 conviction. In its Proposed Recommended Order, the Agency asserts that Petitioner “has not demonstrated any rehabilitation specific to the disqualifying offense, and a majority of the evidence given for her rehabilitation existed during the ensuing non-qualifying offenses.” The Agency did not indicate what would qualify as rehabilitation “specific to the disqualifying offense.” However, the record at hearing demonstrated that Petitioner paid all of the court costs and restitution related to the disqualifying offense, and wrote a letter of apology to the victim. She has stopped drinking alcohol, which contributed to her past indiscretions, and moved away from the environment where her troubles began. All of these actions are evidence of steps toward rehabilitation. Moreover, the statement that the majority of evidence Petitioner presented related to rehabilitation existed during the ensuing non-qualifying offenses is incorrect. With the exception of her high school diploma, all of the training and education that Petitioner has received occurred after the 2009 charge, which is the last encounter Petitioner had with the criminal authorities. The same can be said of her employment as a counselor. Her civil rights were restored in 2015; also well after the 2009 charge. Petitioner’s actions and her efforts to move past the behaviors leading to her legal issues must be viewed from two different perspectives: first, through the lens of her background and upbringing, in order to understand the environment in which she found herself and that which she now lives; and second, through the significant and laudable goal of the Agency to ensure that the fragile population it serves is not exploited or endangered. Petitioner testified at the hearing, and her testimony is something the Agency did not have the advantage of hearing before making its initial decision. As noted above, Petitioner did not have the benefit of a solid family structure. She did not know her father, and her mother was a drug addict. She views her behavior as a young adult for what it was: the foolish and irresponsible behavior of a young woman hanging out with the wrong people, and not thinking about the future. She admitted that her behavior in 2009 also was irresponsible, stating that she was “completely out of line.” She testified that she has removed herself from those influences in her life and no longer drinks or parties, instead focusing on being a mother to her children. The Agency points out that she also was a mother in 2009 when the final non-disqualifying offense occurred. While that is true, Petitioner has taken steps to improve her situation since that time: by obtaining training for employment and working in the counseling field, by attending her church and faith-based organization activities, and by being active in her children’s elementary school PTA. All are efforts that Petitioner has made in the last six to seven years to be a positive role model for her children and to rise above the circumstances in which she was raised. In short, she is attempting to provide for her children what no one provided for her. She also has used the time while she has been unable to gain employment to continue her education. The evidence considered at the hearing shows a woman who was truly remorseful for the actions in her past and who is doing her best to overcome the limitations of her upbringing and be a contributing member of society. Ms. Smiley has proven rehabilitation from the single disqualifying offense by clear and convincing evidence. Based on the evidence presented at the hearing, it also demonstrates that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony, coupled with the information presented to the Agency, established that Ms. Smiley presents no danger to APD clients, including children. Since her disqualifying offense, she has worked with children, been entrusted with money, and worked with those battling addiction and other stressors. While the Agency is right to take its responsibility to protect a particularly vulnerable population seriously, Ms. Smiley has demonstrated her ability and passion to work with those who are less fortunate than herself. As she stated in her Proposed Recommended Order, “I want to work with trouble teens [sic] because I know the STRUGGLE, I know how trouble is easy to get into and HARD to get out, even 15 years down the road.” She should be allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disabilities enter a final order granting Petitioner’s request for an exemption from disqualification from a position of trust. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2016.
Findings Of Fact Petitioner, Cynthia Kuhn, was employed by the Pasco County Sheriff's office from January 4, 1977 and was continuously employed until she was discharged from employment with Respondent on March 8, 1989. Prior thereto, on February 16, 1989, Petitioner was demoted from the rank of lieutenant to sergeant. Petitioner was certified as a law enforcement officer in Florida in 1973 and began employment with the City of Newport Richey Police Department from 1973 until the end of 1976. Petitioner attended the Pinellas Police Academy where she graduated in the top ten percent of her class. Her class standing was number 3 in a class of 40 students. In her evaluation report from the Police Academy, she received an excellent rating in all areas except character and judgement where she received a good rating. When John Short was elected sheriff of Pasco County and took office in January, 1977, Petitioner along with several other Newport Richey Police Department employees transferred to the sheriff's office. During her first employment with the Pasco County Sheriff's Office in 1977, Petitioner was employed as a deputy sheriff working the first few months doing administrative work out of the Dade City office. For the next two years Petitioner worked in crime prevention and community services and organized a unit in the sheriff's office to function as such. Petitioner thereafter worked as the public information officer approximately four years. Petitioner was promoted to the rank of sergeant through promotional exams. During approximately 1984, Petitioner instituted the Crime Against Children's Unit and supervised that unit for a period. From that position, Petitioner took over the Detective Bureau and supervised the detectives. During 1987, Petitioner was promoted to the rank of lieutenant and took over the responsibility of supervising the special operations division which was comprised of the specialized units within the sheriff's office to include aviation and marine, traffic enforcement unit, a special deputy unit and the canine unit. From 1977 to 1987, Petitioner enjoyed an exemplary work record having received only a couple of disciplinary actions in her personnel file relative to traffic accidents with a county vehicle. At the time of Petitioner's promotion to lieutenant, she was the only lieutenant actively employed by the Respondent. Throughout her employment with Respondent, Petitioner has received numerous commendations from local citizens and civic organizations including MADD, local news organizations, public school officials, and other home owners civic associations. Petitioner received three (3) outstanding performance evaluations for the three (3) years immediately proceeding her demotion and ultimate discharge by Respondent. Petitioner's performance evaluations attested to the facts that she was completely reliable and required minimum direction; was very well informed in all phases of her work; consistently made sound decisions; definitely interested and cooperated well; was a steady and hard worker; impressed favorably those around her and her output was consistently above job requirements. Her supervisors rated her above average and sound and noted that she was very articulate; always willing to help and was very good at motivating fifteen (15) detectives that she supervised. As Petitioner's tenure as a lieutenant grew in the Special Operations Division, she began to articulate her suggestions as to staffing, priorities, procedures, and budgeting. She also became engaged in arguments and discussions with Major Bogart regarding her suggestions/differences. The more that she began to express and otherwise articulate her suggestions, her relationship with Major Bogart began to deteriorate. As a result, Major Bogart started disciplining Petitioner over minor infractions of Respondent's rules. As example, Bogart disciplined Petitioner for failure to keep him advised about citizen's complaints directed at a particular deputy after each complaint was filed. Petitioner's plan was to collect all of the information about that deputy and then forward it to Bogart for action when all of the information was gathered. This had been the usual procedure in prior actions and one which had been followed by the other male lieutenants. However, Major Bogart wrote Petitioner up for not following the proper chain of command because she did not keep him informed, step by step. During this same period, Major Bogart specifically directed a male lieutenant to wait and collect all negative information about another deputy and bring it to his attention. When Petitioner followed this exact same procedure which was authorized by Major Bogart, Petitioner was criticized and disciplined. In another incident, Major Bogart disciplined Petitioner for an infraction committed while she was off-duty. Specifically, a male lieutenant was accused of shoplifting at Sears. Petitioner came to the scene and proceeded to show her badge and conducted an investigation on behalf of that deputy. Bogart charged Petitioner with self-initiating a report and conduct unbecoming a law enforcement officer. In Petitioner's written response to the allegations, she successfully pointed out to Bogart that he was citing the wrong standard operating procedure (SOP) in his charges. Rather than drop the charges, as Bogart would do later with a male deputy, i.e., Gary Albin, he amended the charge and recommended three (3) days suspension. The Career Service Board reversed Bogart, dropped the conduct unbecoming charge and suspended the Petitioner for one day for "not keeping her chain of command advised." The male lieutenant accused of shoplifting was not disciplined for any violation despite the fact that Respondent was aware of the situation and the fact that that lieutenant did not advise his superior of the allegations as he was required to do. By 1988, Petitioner sought and was given a transfer from Bogart's Operation's Division to Road Patrol under Captain Michael Phillips. Despite Petitioner's efforts to transfer in order to escape the criticism and ire of Major Bogart, Captain Phillips continued to criticize Petitioner for minor rule infractions. As example, Captain Phillips disciplined Petitioner for a violation of rolodex updating. Specifically, Petitioner's rolodex did not contain her address despite the fact that it had her phone number. Petitioner later reviewed the rolodex files of approximately 60 other male deputies, including Captain Phillips, and they all related the same failure to completely update their rolodexes, the identical violation for which Petitioner was disciplined and none of the other male deputies were similarly disciplined. On September 20, 1988, Sergeant William Stoner, a deputy with the Pasco County Sheriff's office, was involved in a one car accident while off-duty. A van swerved in front of Sergeant Stoner's jeep and boat causing Stoner to brake hard in an effort to avoid hitting the van. As a result, the tongue on the boat trailer separated causing the trailer to jackknife and Sergeant Stoner lost his boat on Highway 19 at approximately 5:00 p.m. There was some damage to the hull and stringers on the boat, and the trailer. Petitioner was on duty and came to the scene of Stoner's capsized boat and the resulting traffic jam. Stoner was angry about the incident, however he was physically capable of putting the clutch linkage back on the jeep and moving it off the roadway. He also radioed the marina for assistance in moving his boat off U.S. 19. Petitioner noticed an odor of alcohol on Stoner's breath. Otherwise, Stoner was able to speak, walk and climb aboard the boat in the roadway. Petitioner did not believe Stoner was intoxicated to the extent that his normal faculties were impaired. Nevertheless, Petitioner phoned her supervisor, Captain Phillips, advised him of the accident and her belief that Stoner had been drinking and to initiate an Internal Affairs investigation. To that end, Phillips instructed Petitioner to have Stoner transported to the Pasco County Sheriff's office for a mandatory breathalyzer test. Petitioner was given instructions from Phillips as to the procedure to follow in the event that Stoner objected to the taking of a breathalyzer test. Stoner consented to the test without being ordered. Prior to informing Stoner of the potential Internal Affairs investigation, Petitioner asked Sergeant Sandra Reed, the backup deputy who was dispatched to assist in relieving the traffic jam, to smell Stoner's breath to determine whether or not she could determine if he had been consuming alcohol. Reed got close enough to Stoner to confirm Petitioner's suspicion that the odor was in fact alcohol. Sergeant Michael Ferrantelli also came on the scene to direct traffic. Neither he nor Sergeant Reed have ever stated that Stoner was intoxicated that day. Stoner also denies that he was intoxicated. In spite of the fact that three (3) on-scene deputies and Stoner himself denied intoxication and impairment, both Phillips and Bogart determined that Stoner was intoxicated to the extent that his faculties were impaired. Neither were at the scene nor did they speak to Stoner that night. The case was referred by Petitioner to the State Attorney's office on September 20, 1988. On or about mid-December, 1988, the State Attorney's office elected not to file charges against Stoner because "there are no witnesses who witnessed the defendant operate a motor vehicle but more importantly, there are not witnesses who testified defendant was impaired. Some witnesses say defendant was drinking but none feel he was impaired. The only evidence of impairment comes from a breath test given to defendant prior to arrest. A pre-arrest test is inadmissible and no post-arrest breath test was ever given." On February 10, 1989, Major Bogart decided that Petitioner had "botched" the DUI investigation of Stoner on September 20, 1988 and recommended her demotion from lieutenant to sergeant. Prior to Petitioner being afforded an opportunity to respond and challenge the demotion, Bogart recommended her termination based on an Internal Affairs investigation conducted after the Stoner incident. On March 8, 1989, Petitioner was dismissed allegedly for being untruthful and conduct unbecoming a deputy. Prior to questioning Petitioner, Bogart never advised her of her rights and he demoted her without considering her proffered mitigation in response to the charges. The charge of untruthfulness which was filed against Petitioner was based on statements given by Deputy Ferrantelli on February 27-28, 1989 and subsequent statements given by Sergeant Stoner on March 1, 1989 when they were questioned by Internal Affairs about the September 20, 1988 incident involving Sergeant Stoner. Internal Affairs charged Petitioner and sustained the charge of untruthfulness against her allegedly because: (1) Deputy Ferrantelli stated that Petitioner approached him at the scene and advised him that she believed that Sergeant Stoner had been drinking and she was going to make believe she did not see anything; (2) Sergeant Stoner stated that he was ordered by Petitioner not to talk to the Florida Highway Patrol; (3) Petitioner denied making such a statement to Deputy Ferrantelli and denied ordering Sergeant Stoner not to talk to the Florida Highway Patrol trooper. On reviewing Deputy Ferrantelli's statements and contrasting those statements with the statements by Petitioner, her only contact with Deputy Ferrantelli related to her assignment to him to assist in traffic control. Deputy Ferrantelli's statement to the effect that Sergeant Stoner had been drinking but that she would act like she didn't see anything is incredible in view of Petitioner's request to Sergeant Reed to get close to Sergeant Stoner to determine if he had been drinking or if she could detect an odor of alcohol, Petitioner's call to her superior, Captain Phillips, to initially advise him of her perception that she detected an odor of alcohol on Sergeant Stoner and Deputy Ferrantelli's documented past problems regarding his untruthfulness and prior disciplinary problems while under Petitioner's supervision. In this regard, Deputy Ferrantelli was previously assigned to check on a "high risk" inmate every fifteen minutes and to verify his checks in a sworn documentation which was used to verify that the checks were in fact made. Deputy Ferrantelli did so while the inmate had been released from prison and therefore the checks could not have been made despite the fact that he swore that he had made the checks every 15 minutes as he recorded them on the sworn document. Deputy Ferrantelli was not discharged despite Respondent's contention that the penalty for untruthfulness is discharge. Deputy Ferrantelli admitted and it was found that he was untruthful in the past and he was not discharged for such untruthfulness. Other indicia of Respondent's disparate treatment as relates to Petitioner is evident based on the fact that Deputy Ferrantelli was given a polygraph exam to determine the truthfulness of his statements and Petitioner, despite her request to take a polygraph exam, was denied such an opportunity. This evidence is a clear case of disparity and was not explained by Respondent. 1/ Secondly, a review of Sergeant Stoner's statements during questioning by the Internal Affairs personnel reveal that the interrogator, Roger Hoefs, was slanting his questioning in a manner to obtain a result which would justify his later decision to sustain the charges levelled against Petitioner. Specifically, Sergeant Stoner's initial statement, in regard to Petitioner's statement to him "I don't think it's a real good idea for you to be talking to him" (a reporter) gave no indication of an order. However, when the Internal Affairs personnel rephrased their questioning to Sergeant Stoner, Petitioner's statement became an order. There's no indication that the opinionated statement to Sergeant Stoner could have met a definition of an order as first stated without regard to how Sergeant Stoner may have interpreted it almost six months after the alleged statement was made. Significantly, Sandra Reed denied that Petitioner made any statements to her regarding any effort to cover up anything of any sort or that she, for that matter, heard any rumors respecting any alleged cover up. This is so despite the fact that in the manner that the questions were put to Reed (very suggestive), she was emphatic on the fact that Petitioner never, in any manner, indicate that she was going to help Stoner or to treat him differently than she would any other member of the public. In this regard, Reed thought that Petitioner was perhaps trying to shield Stoner from the press and even made the remark "that press guy is all over him." (Respondent's Exhibit No. 4, Reeds I. A. Statement Page 7.) The suggestive questioning continued by the remark "OK well . . . but removing him from the scene . . . did it, in fact, seem odd to you . . . considering the whole investigation - as how it should have gone." Petitioner had remarked to Reed that he (Stoner) dumped his boat and "I think he's been drinking. ." The I.A. interrogator remarked that "OK but that was brought out immediately [upon her arriving at the scene]." The suggestive questioning by Hoefs continued by the following question "and how quickly after that was it that she had you kind of push . . . get him out of there?" Respondent's exhibit 4, Reed's I.A. statement page 8. The suggestive questioning continued even though Reed remarked that she had denied any alleged cover up by Hoefs remark during a question to the effect that "he had sworn testimony that Petitioner told more than one individual on the scene that 'Stoner is drunk' and I'm not going to see it." To that suggestive question, Reed remarked that Petitioner never told her that or anything resembling that statement as Hoefs suggested in his questions to Reed. Other indicia of the faulty conclusions reached by the Internal Affairs investigation is evidenced by Reed's statement that Petitioner showed her displeasure that the FHP refused to work the accident by relating to her that "FHP is not working it immediately after she returned to the station." (Page 10 of Respondent's exhibit 4, Reed's I.A. statement). Trooper Barfield related to Petitioner that he preferred that she worked the accident since it involved a fellow worker (of Petitioner). Barfield told Petitioner of an earlier accident investigation that he conducted involving a local law enforcement employee and he came under intense pressure from other law enforcement officials as it was so close to an election. Trooper Barfield begged off working the Stoner incident as he was fearful that he would undergo similar criticism if he worked the Stoner incident. Petitioner relented as she felt that she could not order Trooper Barfield, who worked for an independent agency, to conduct the investigation. Sergeant Stoner was taken to the station to take a breathalyzer test by Sandra Reed. Stoner left his gun unattended in his jeep. When Petitioner's superior was told that she was about to have administered to Sergeant Stoner a breathalyzer test, her superior ordered her to place the breathalyzer test on hold and to that order, Petitioner expressed her displeasure based on the fact that she correctly considered that the longer a suspected intoxicated driver is detained from taking the breathalyzer test, the results may be flawed based on the hiatus between the time of driving the vehicle and the time the test was administered. Despite the fact that it took approximately 2 1/2 hours for clearance to be given Petitioner, when Sergeant Stoner took the test, he blew a .101 and a .106 blood alcohol content. Prior to Sergeant Stoner being questioned by Internal Affairs on September 20, 1988, Stoner was given a rights advisement prior to the questioning whereas Petitioner was not accorded the same right. Additionally, Stoner received a two-day suspension for being .10 blood alcohol level whereas Petitioner was demoted and ultimately discharged. Another indicia of disparity of treatment by Respondent is evident from the degree in which Petitioner was disciplined whereas Sergeant Stoner left his gun unattended on the evening of September 20, 1988, a clear departure from Respondent's SOPs, and he was neither charged nor disciplined for leaving his gun unattended. Bogart agreed that Stoner could have been terminated for just being .10 blood alcohol level but despite the two-day suspension, Bogart gave Stoner a satisfactory performance evaluation just one week after he gave testimony against Petitioner in this cause. As stated, during the hearing, Bogart maintained that anyone who is untruthful in sheriff's office investigations is fired and that there are no exceptions to this policy. A review of the evidence herein reveals that this is not true. Specifically, Deputy Gary Albin was not terminated when he was found to have lied to Internal Affairs on February 3, 1988. Bogart accused Albin of theft whereupon the Career Service Board changed its charge to false or otherwise untrue statements concerning official sheriff's office matters. If Respondent's policy is as Bogart testified, Bogart should have changed the original erroneous charge he filed against Albin and charged him with untruthfulness in accordance with the Board's findings. This is especially true in view of the fact that Bogart did not hesitate to change the erroneous charge he initially filed against Petitioner in the Sears incident. Bogart maintains that that matter was "totally out of my hands" although the facts does not bear him out in this regard. Indeed, four months after Gary Albin had been found to have been untruthful, Bogart gave him a satisfactory performance evaluation. This is so despite Bogart's contention that he maintains high performance expectations and standards respecting those employees who he supervised. Another example of Bogart's disparate treatment of Petitioner versus male contemporaries is evidenced by the explanation of why Stoner only received a two-day suspension for being .10 BAC on September 20, 1988. Bogart felt that a mitigating factor for Stoner was the fact that he was off-duty however when Petitioner was off-duty during the Sears incident, Bogart made no effort to use that as a mitigating factor when he imposed discipline against Petitioner. The only mitigation Petitioner received was the action by the Career Service Board which mitigated the punishment of Petitioner from that recommended by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be reinstated to the rank of lieutenant as of February 16, 1989. Petitioner be provided all back pay, to include all raises and costs of living allowances for which she would have been entitled to had she been continuously employed at the rank of lieutenant from February 16, 1989 to the date of the entry of the final order. Provide opportunities that Petitioner be tested for and receive any promotions to which she would have been entitled had she not been demoted on February 16, 1989. DONE and ENTERED this 26th day of June, 1991, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of June, 1991.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner was terminated from employment with the Respondent because of his race. The Petitioner alleges that the Respondent discriminated against him by engaging in disparate treatment and retaliation, in violation of Section 760.10, Florida Statutes (2007).
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations denying the Amended Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of August, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Nancye R. Jones, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720 Clifford J. Geismar, Esquire Law Offices of Clifford J. Geismar, P.A. Crealde Executive Center 2431 Aloma Avenue, Suite 150 Winter Park, Florida 32792
The Issue Whether Petitioner's employment should be terminated on the grounds alleged in the Administrative Complaint dated June 3, 1998.
Findings Of Fact For the past seventeen years, Respondent has been employed by the Petitioner. At the time of the formal hearing, he held the position of a fire alarm foreman. He previously held the positions of a fire alarm technician and a trades helper. Respondent has been a good employee and has a good work record. Respondent is represented by the National Conference of Firemen and Oilers, AFL-CIO, Local 1227. Gary Mitten is the president of that union. Pursuant to its rule making authority and to implement Sections 231.02 and 230.23(5), Florida Statutes, the Petitioner revised its Rule 3.12, effective September 3,1997, to provide as follows: Definitions: For the purposes of this policy: "Prospective Employee" means an applicant who has received an offer of employment. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of adjudication of guilt. A prospective or current employee who is recommended to fill a non-instructional position shall, as a condition of employment, file a complete set of fingerprints taken by an authorized law enforcement officer or a designated employee of the District trained to take fingerprints. The prints will be processed pursuant to the requirements of Section 231.02(2)(a), Florida Statutes. * * * A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. * * * 6. Any provision of the law notwithstanding, all personnel currently required to be certified under Section 231.17, Florida Statutes, and by January 1, 1998, for all other personnel currently employed by the District who have not been fingerprinted and screened in the same manner outlined in Section (1) shall submit a complete set of fingerprints taken by an employee of the school or district who is trained to take fingerprints. The prints shall be processed according to Section 231.02(2)(a), Florida Statutes. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. Such action shall be subject to appeal. . . . Section 231.02, Florida Statutes, pertains to the qualifications of school personnel and provides, in pertinent part, as follows: To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . . (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Any provision of law notwithstanding, by January 1, 1997, . . . for all other personnel currently employed by any district school system or any other public school who have not been fingerprinted and screened in the same manner outlined in paragraph (a) shall submit a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. The fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Personnel who have been fingerprinted or screened pursuant to this subsection and who have not been unemployed for more than 90 days shall not be required to be refingerprinted or rescreened in order to comply with the requirements of this subsection.1 Section 435.03, Florida Statutes, provides, in pertinent part, as follows: All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (n) Chapter 796, relating to prostitution. Section 435.06, Florida Statutes, provides, in pertinent part, as follows: When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. Section 435.07, Florida Statutes, provides exemptions from disqualification, in pertinent part, as follows: Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: * * * (b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions; * * * (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . . In December 1997, Respondent was fingerprinted pursuant to School Board Rule 3.12. The subsequent screening reflected that Respondent was arrested by the Riveria Beach Police Department on March 13, 1997, and charged with solicitation of prostitution, which is a misdemeanor offense pursuant to Section 796.07, Florida Statutes. This is also a disqualifying offense pursuant to Section 435.03(2)(n), Florida Statutes. Respondent subsequently entered a plea of nolo contendere; he was assessed a monetary fine, and adjudication of guilt was withheld. James P. Kelly is responsible for conducting background screenings of employees as Chief of the Petitioner's police department. Melinda Wong is the director of Petitioner's employee records and information services departments. Mr. Kelly and Ms. Wong serve as members of Petitioner's Criminal Background Check Committee, which was formed to consider the results of background screenings and to consider appeals of employees found to have a disqualifying conviction. By memorandum dated January 5, 1998, Respondent was notified as to the results of the background screening and advised, in pertinent part, as follows: This past year you were fingerprinted pursuant to Florida Statutes, Section 231.02. Based on the criminal history indicated below, the Criminal Background Check (CBC) Committee will recommend your termination from employment with the District. You have a right to appear before the CBC Committee to appeal that determination and request exemption from the requirement that you be disqualified from further employment. In order for an exemption to be granted, you must demonstrate sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; and any other evidence or circumstances indicating that you will not present a danger if continued employment is allowed. On March 13, 1997, in Riveria Beach, Florida, you were arrested for solicitation of prostitution for which you subsequently pled guilty. . . . Respondent appeared before the Committee accompanied by Mr. Mitten, his union representative. Respondent told the Committee that he had been drinking on the night in question and had let a friend, who he later identified as Billy Scott, drive his vehicle. Respondent further related that he had fallen asleep and that when he awakened, he and Mr. Scott were being arrested for solicitation of prostitution. Respondent asserted that his plea was one of convenience and entered only after the Public Defender told him the plea would not affect his employment.2 The Committee thereafter caused the School Police to investigate the circumstances surrounding Respondent's arrest. From that investigation, it was revealed that the supporting arrest documents do not reflect the presence of another person in Respondent's vehicle. Casting further doubt on Respondent's versions of the events was the fact that Respondent was cited as driving with an open container of alcohol. The citation indicates that Respondent was the driver of the vehicle, and not merely a passenger. Further, an interview of the arresting officer led the investigator to conclude that Respondent was in the car alone at the time of the incident. Based on the information that had been made available to it, the Committee concluded that Respondent's version of the events had not been confirmed. Respondent was invited to appear before the Committee to explain the discrepancies between his version of the events and the results of the investigation. Respondent, accompanied by Mr. Mitten, told the Committee that the person driving the car was Billy Scott, who was visiting from California. Respondent also said that Mr. Scott had told him that he (Scott) was not formally booked because he had a brother-in-law (Respondent was not certain as to the relationship) on the Riveria Beach Police Department who had interceded on his behalf. Respondent thereafter gave the investigator the telephone number and address of Mr. Scott's temporary residence. The investigator verified that the address was a valid address and called the telephone number, leaving a message on an answering machine. Later, a person claiming to be Mr. Scott telephoned the investigator and verified Respondent's version of the events. Subsequent to that call, the investigator received a call from a woman who stated that the investigator had left a message on her answering machine, that she had a son named Billy Scott, that Billy Scott had not been to California since he was an infant, and that Billy Scott did not have a relative who worked for the Riveria Beach Police Department. Based on the information before it, the Committee concluded that Respondent had committed a disqualifying offense and that the evidence offered by Respondent in mitigation of that offense was not credible. Because there was no mitigating evidence within the meaning of Section 435.07(3), Florida Statutes, the Respondent's work record was not considered.3 The Committee recommended to the Superintendent that Respondent's employment be terminated. The Superintendent accepted that recommendation and, in turn, recommended to the School Board that Respondent's employment be terminated. The School Board thereafter accepted the recommendation of termination from the Superintendent and voted to terminate Respondent's employment, subject to his right to contest the proposed action pursuant to Chapter 120, Florida Statutes. Respondent's testimony at the formal hearing was similar to the explanation of the events he gave the Committee. That self-serving, uncorroborated testimony is insufficient to establish by clear and convincing evidence that he is entitled to an exemption, as required by Section 435.07(3), Florida Statutes. Respondent asserts that the disqualification does not apply to his position because his position does not require direct contact with students. That assertion is rejected. The evidence is clear that Respondent's job duties require his presence at the various schools of the district at times the children are present. Although Respondent typically checks in at a school's office when he first comes on campus, he thereafter is not monitored or otherwise supervised while on the school campus. This opportunity to have contact with students provides the Petitioner with a sufficient basis to consider him to be an employee who has direct contact with students.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that terminates Respondent's employment. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of October, 1998
The Issue The issued involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne. The factual grounds stated in the Statement of Particulars for the action taken was as follows: Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident. The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail. Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed. Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled. Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident. The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and no passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
Findings Of Fact J. T. Byrne is a Florida Highway Patrol trooper and has permanent career service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing. On June 5, 1976, at approximately 1:15 A.M., Trooper J. T. Byrne was dispatched to an accident scene on FTU Boulevard approximately one tenth of a mile west of its intersection with State Road 520. Upon his arrival at the scene there were Florida Technological University police, sheriff's deputies, and emergency vehicles already present. One of the enforcement officers present advised Byrne that there had been a fatality. Byrne checked the victim then called his dispatcher to advise the dispatcher that a medical examiner and a Florida Highway Patrol homicide investigator would be needed. Immediately thereafter, the driver of the car involved, Edward Romfh Kirkland, Jr., was introduced to Byrne by one of the enforcement officers at the scene who gave Kirkland, Jr.'s driver license to Byrne. Byrne spoke with Kirkland, Jr., and noted his appearance. Kirkland, Jr. was unsteady on his feet, emotionally upset and was crying. Byrne smelled alcoholic beverage on Kirkland, Jr.'s breath. Byrne placed Kirkland in his patrol car and commenced his accident investigation. The accident investigation included interviews with the victim's brother, an eyewitness observer, and Kirkland, Jr. Byrne also prepared a sketch and a verbal description of the scene. Byrne administered a field sobriety to Kirkland, Jr. after conducting his accident investigation. Kirkland, Jr. performed these tests in a manner which would indicate that his faculties were not impaired. Byrne, with the assistance of other officers, obtained the name of only one eyewitness although inquiries were made of many observers at the scene. At approximately 1:45 A.M. Trooper Fuller Baker, Homicide investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired. The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents. Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene and took him to the sheriff's Department to conduct a breathalyzer examination. In route to the Sheriff's Department, Kirkland, Jr. told Byrne that he had been assaulted and knocked unconscious by victim's brother following the accident and prior to Byrne's arrival at the scene. Arriving at the Sheriff's Department, Byrne was met by Edward Rohmf Kirkland, Sr., an attorney at law, who was present representing his son. When Kirkland, Sr. learned that his son was going to be given a breathalyzer examination, he indicated that he wanted to have a blood analysis done on his son. Byrne indicated to Kirkland, Sr. that such a test would be desirable, and he would permit such a test to be performed. At this time, Trooper Baker arrived at the Sheriff's Department and spoke with Byrne outside the hearing of the Kirklands. Baker asked Byrne with what offense he had charged Kirkland, Jr. Byrne stated that he had arrested him for driving while under the influence. They discussed the condition of Kirkland, Jr., and both agreed that he did not appear to have his faculties impaired. Byrne was of the opinion, however, that a test should be run as a precaution and Kirkland, Jr. charged if the test was positive. As the accident investigator, Byrne did not feel he should give the test because for him to do so could have created problems concerning the admissibility of the evidence at a subsequent criminal prosecution. Baker concurred in Byrne's analysis, but Baker did not feel that the condition of Kirkland, Jr. was such to form probable cause for administration of a breathalyzer examination. Baker suggested that Byrne charge Kirkland, Jr. with a charge which could be proven, driving too fast for conditions, and release him to his father, an attorney, who had indicated he was going to have a voluntary blood analysis performed. Subsequent to their conversation, Byrne charged Kirkland with the civil charge of driving too fast for conditions and released Kirkland, Jr. At that time Byrne left the Sheriff's Department, leaving Kirkland, Jr. and his father in the presence of Trooper Baker. Byrne thought that Baker would follow through and accompany the Kirklands to the blood analysis as a part of the homicide investigation. Baker did not follow through with the examination. Subsequently, the victim's father was the source of derogatory comments regarding the handling of the investigation of his daughter's death. Because of this, the matter was presented to the Orange County Grand Jury, whose report indicated insufficient evidence existed to prosecute Edward Romfh Kirkland, Jr., but which report was critical of the handling of the homicide investigation. Both Troopers Byrne and Baker received copies of the report and attached Court Order. Byrne and his immediate supervisor, Sergeant W. E. Sunberg, Jr., discussed the Grand Jury's report and the criticisms therein. Subsequently both Baker and Byrne received suspensions by the Florida Highway Patrol. With regard to the allegation that Trooper Byrne failed to advise the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge the Grand Jury's criticism, the Hearing Officer finds that substantial and competent evidence indicates that Trooper Byrne's immediate supervisor was advised of the criticisms of the Grand Jury. In addition, the Court's directions concerning a Motion to Repress or expunge the report of the Grand Jury does not create any right in the Department to repress or expunge any portion of the report. Further, there was no criticism levied against Trooper Byrne in the Grand Jury report. Regarding the allegation that Trooper Byrne failed to notify the dispatcher to advise a medical examiner of the necessity of blood alcohol testing, the memorandum upon which this requirement is based was not introduced into evidence. Testimony regarding the requirements created by the memorandum was received. The requirements of such a notification would only be applicable in a factual situation in which a victim or suspect would be unable to take a breathalyzer examination. The facts indicate that there was nothing about the victim's condition which would warrant a test for blood alcohol content, and Kirkland, Jr. was able to take the breathalyzer. Therefore, the factual situation did not necessitate Trooper Byrne advising the medical examiner of the possibility of blood analysis testing. The uncontroverted testimony of Byrne was that he and other officers in attendance at the scene did interview many observers at the scene and could only discover the one witness to the accident. The basis for the allegation that Byrne failed to obtain the names of all of the witnesses was based upon the fact that the victim's father hired a private investigator who later discovered two additional witnesses. The evidence, however, indicates that it took several minutes for Byrne to arrive at the accident scene and there is no evidence that the witnesses later discovered by the private investigator were at the accident scene when Byrne arrived. A comparison of Exhibit 4, the first diagram prepared by Byrne the night of the accident, with Exhibit 5, the diagram prepared by Byrne several months later, indicates several differences. Clearly, the shape of the road, the left turn lane at the intersection, and the position of the speed sign were immaterial to the accident. Both diagrams depict essentially the same salient facts, to wit: the location of the initial impact, the path of the vehicle, the final location of the victim, and the fact the vehicle completed its passing after entering the no passing zone. The initial diagram was supplemented by a written description and measurements which are a part of the accident investigation report. The initial diagram was sufficiently accurate for the purposes of that report when considered with Byrne's written report and measurements. There is no requirement that the diagram of an accident investigation report be a scaled drawing. In the absence of such a requirement, the diagram must be considered sufficient if it contains that data necessary to give the reader an accurate depiction of the events before, during, and after the accident. Byrne's original diagram, together with the written narrative which is part of the diagram, presented this information. While Byrne's second diagram is more detailed, his first diagram is not sufficiently inaccurate to mislead or misstate the actual operative facts. Regarding the allegations that Byrne was negligent in the blood alcohol testing of Kirkland, Jr., it should be noted that Byrne arrived on the scene at 1:15 A.M. and began his actual accident investigation at approximately 1:45 A.M. He was at the Sheriff's Department with Kirkland at approximately 2:45 to 3:00 A.M. based upon the testimony that Trooper Byrne left the Sheriff's Department at 3:17 A.M. One and one half hours to investigate an accident and transport Kirkland, Jr. to the Sheriff's Department does not appear to be an excessive delay. Regarding the allegation that Byrne failed to follow through and supervise and control the blood alcohol testing of Kirkland, Jr., although Byrne had arrested Kirkland, Jr. at the scene for driving while under the influence of alcoholic beverages, it was both Byrne's and Baker's opinion that they had no probable cause for administration of chemical blood tests. Baker was of the opinion that Kirkland, Jr. had not been driving under the influence of alcoholic beverages, while Byrne, having initially based his opinion that Kirkland was driving under the influence upon the smell of alcoholic beverages on Kirkland's breath and Kirkland's unsteadiness on his feet, changed that opinion based upon the additional information obtained from Kirkland, Jr. while transporting him to the Sheriff's Department that Kirkland, Jr. had been knocked unconscious by the victim's brother. Both officers had administered field sobriety tests to Kirkland, Jr., whose performance on the tests indicated that his faculties were not impaired. Further, the testimony of both troopers and two state's attorneys indicated that although Byrne was the arresting officer and the officer who transported Kirkland to the Sheriff's Department, Byrne was not the preferred officer to administer chemical blood tests to Kirkland, Jr. The administration of such tests by the officer in charge of the accident investigation creates admissibility problems regarding any evidence derived from the testing period (See Conclusions of Law below.) Trooper Baker, as the homicide investigator present, would have been the preferred officer to give and supervise the test. Regarding the allegation that Trooper Byrne released Kirkland, Jr. into the custody of his father, this was not demonstrated. Kirkland, Jr. is over 21 years of age and therefore was not released into anyone's custody but was released on his own recognizance in accordance with the prevailing procedures in Orange County. Although his father was present at the Sheriff's Department, it is clear that he was present in his capacity as his son's attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission not sustain the disciplinary action taken by the agency. DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977. COPIES FURNISHED: Ed Strickland, Esquire Kirkman Building Tallahassee, Florida 32304 William R. Sharpe, Esquire 29 East Pine Street Orlando, Florida 32801 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 =================================================================
