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
Findings Of Fact The Respondent, Thomas E. Gibbons, was certified by the Criminal Justice Standards and Training Commission on October 19, 1979, and was issued certificate number 99-2054. At the times pertinent hereto, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department. At the times pertinent hereto, Respondent, Officer Robert Grant, Officer William A. Drossman, and Officer Phillip Seguin were police officers employed by the City of Fort Lauderdale Police Department and were assigned to the canine unit (K-9 Unit). On December 23, 1988, several City of Fort Lauderdale police officers became involved in a vehicle chase of a burglary suspect. The sequence of events described below occurred during the early morning hours before daylight, and resulted in the arrest of Michael Jerome Jones. The Respondent, Officer Grant, Officer Drossman, Officer Seguin, and several other officers heard the call on the radio and responded to assist in apprehending the suspect. Law enforcement officers from other jurisdictions became involved in the chase of the suspect. After being involved in the chase for a short while, the suspect abandoned his vehicle and sought to escape on foot. Among those involved in the foot chase of the suspect were the Respondent, Officer Grant, Officer Drossman, and Officer Seguin. Each of these K-9 officers utilized his dog in the chase. The chase of the suspect occurred in the vicinity of Oswald Park and the subsequent apprehension occurred in a field adjacent to the park on the north. This area is out of the geographical jurisdiction of the Fort Lauderdale Police Department. Consequently, these K-9 officers had not worked in this area before. Between the park area and the area of the apprehension is a cyclone wire fence approximately five feet in height which was, at the time of the incident, covered with vines. Oswald Park is a lighted, fairly open area. The area of the apprehension is a field that was dark and overgrown with vegetation. Officer Grant exited his vehicle on Northwest 27th Street, Fort Lauderdale, in pursuit of the suspect. Officer Grant first considered releasing his dog so that the dog could make a running hit on the suspect. Because another officer came between Officer Grant's location and the direction the suspect was heading, Officer Grant could not release his dog. The officers involved in the chase surrounded the area in which the suspect had run. Officer Grant and his dog were stationed on the north side of the field. Several officers, including Officer Seguin, were in Oswald Park. Officer Grant believed Respondent to be west of the suspect. Officer Drossman's dog tracked the suspect into a fenced yard. Officer Drossman located the suspect hiding on top of a two-story barn and told the suspect he was under arrest. Instead of obeying, the suspect jumped off the south side of the roof and continued to run toward Officer Grant's position. Officer Drossman and another officer advised Officer Grant by radio that the suspect was heading in his direction. Officer Grant, who was on the northeast corner of the field, observed the suspect jump over the fence into the field. Officer Grant had his dog on a leash that was approximately fifteen feet in length. Officer Grant's dog tracked the suspect to the southeast corner of the field and located the suspect while he was lying face down on a sand hill. At no point after the point of apprehension did the suspect offer any resistance to any law enforcement officer. 1/ The conflicts in the evidence are resolved by finding that Petitioner established the following facts by clear and convincing evidence. Officer Grant's dog bit Mr. Jones at least once on the shoulder area of his outstretched right arm and held on to the shoulder, causing Mr. Jones to cry out in pain. Officer Grant placed Mr. Jones under arrest and handcuffed Mr. Jones using metal handcuffs with his hands in front. No other officer assisted Officer Grant in handcuffing Mr. Jones. Respondent was in Oswald Park when he heard Officer Grant's dog make contact with Mr. Jones. Respondent believed that only one officer was at the arrest scene and decided to assist that officer. After he tied his dog to the fence separating Oswald Park and the arrest site, Respondent leaped over the fence, which was approximately five feet in height, and proceeded to the arrest area. Respondent dropped his flashlight 2/ while crossing the fence and located the arrest scene from the noises being made by Mr. Jones, Officer Grant, and Officer Grant's dog. Respondent ran from the southern area of the field over to where Officer Grant was standing with Mr. Jones. After Mr. Jones was handcuffed, Officer Grant took his dog off and pulled Mr. Jones to his feet by pulling on the handcuffs. Officer Grant saw Officer Drossman and Officer Drossman's dog standing behind him while Officer Grant was lifting Mr. Jones off the ground. Respondent arrived on the scene of the arrest just as Officer Grant was pulling Mr. Jones to his feet. Respondent grabbed Mr. Jones and pulled him away from Officer Grant. Respondent was making comments about how he had hurt his hand and got dirty trying to find Mr. Jones and then started striking Mr. Jones while Mr. Jones was handcuffed and not resisting. Respondent struck Mr. Jones with his fists in the upper torso area, causing him to fall to the ground, and kicked him several times. Respondent helped Mr. Jones to his feet and subsequently struck him again, causing him to fall to the ground. Officer Seguin, who was stationed across the fence in Oswald Park, heard the suspect screaming and heard sounds like someone was being hit. Officer Seguin also testified that he saw the light from flashlights in the area of the arrest. Mr. Jones never slipped a cuff during this incident, nor did he ever try to fight Respondent. After Respondent stopped hitting Mr. Jones, Respondent walked south of the field with Mr. Jones to the fence. At the fence, Respondent prodded Mr. Jones to climb up on the fence by kicking him on the back of his legs. Once Mr. Jones was on the fence, Respondent pushed him so that Mr. Jones fell to the other side of the fence and into Oswald Park where Officer Seguin and Officer Salisbury were waiting. While the proof was sufficient to demonstrate that Respondent committed a battery upon Mr. Jones immediately following his arrest, it was insufficient to demonstrate that the manner in which Respondent caused Mr. Jones to cross the fence entailed the use of excessive force or that it constituted a battery on the person of Mr. Jones. Officers Salisbury and Seguin then took custody of Mr. Jones. 3/ Mr. Jones was handcuffed to the front at the time he came into the custody of Officer Seguin and Officer Salisbury. Officer Salisbury re-cuffed Mr. Jones with his hands behind his back and placed Mr. Jones in his police car. Officer Salisbury later returned Officer Grant's handcuffs to him. Mr. Jones was transported back where he had abandoned his vehicle and the foot chase began. Respondent and most of the other officers involved in the chase gathered at this location. Sgt. Runnerstrom, who was the supervisor for the K-9 unit officers, was also present. The officers present thereafter engaged in a bull session wherein Respondent bragged about having made Mr. Jones, whom he called an "ass-hole", a lesson for making him sweat, jump the fence, and get dirty. On January 12, 1989, some unknown party wrote a letter to Captain Thomas of the City of Fort Lauderdale Internal Affairs Department which in detail complained of Respondent's behavior on December 23, 1988. This letter was written from the perspective of someone who was at the scene of the arrest and charged Respondent with having used excessive force against Mr. Jones. The letter was delivered to an area of the police department that has restricted access. This letter was assigned to Internal Affairs Sgt. Richard Herbert for investigation. After Officer Grant, Officer Drossman, and Officer Seguin gave statements to Sgt. Herbert, each was separately approached by Respondent. Respondent first learned of the Internal Affairs investigation through another officer on March 9, 1989. Officer Grant testified that he could not remember exactly what Respondent had said to him, but that he construed the conversation as a request to modify the statement that Officer Grant had given to internal affairs by saying that it had been too dark for him to see whether Mr. Jones had slipped a cuff. Officer Grant also testified that Respondent never asked him to lie and that the conversation could have been interpreted differently. Officer Drossman testified that Respondent asked him to say that it was too dark for him to have seen what had happened. Officer Drossman also testified that Respondent did not ask him to lie. Officer Seguin testified that he had several conversations with Respondent about the matter, but that Respondent did not try to tell him what to say. Petitioner failed to establish by clear and convincing evidence that Petitioner asked Officer Grant or Officer Drossman to lie about the incident. While discussing the manner in which Mr. Jones came over the chain link fence, Respondent stated to Officer Seguin that Respondent would have to "out and out lie about how the guy came over the fence." On March 21, 1989, Respondent gave a sworn statement to Sergeant Herbert which was consistent with the version of the events of December 23, 1988, to which Respondent testified at formal hearing. This sworn statement did not accurately describe the events that occurred at the scene of the arrest on December 23, 1988. At the conclusion of the Internal Affairs investigation, Respondent's employment with the City of Fort Lauderdale Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent committed battery against the person of Michael Jerome Jones on December 23, 1988, and that he subsequently gave a false statement to internal affairs about the incident. It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of one year. DONE AND ORDERED this 2nd day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1992.
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 for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification, February 22, 2001. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty to the charge on December 2, 1982, and adjudication was withheld. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Juana C. Watkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark T. West 222 145th Avenue, East Madeira Beach, Florida 33708 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
