The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for determination are: (1) whether Respondent, Carolyn Ford, as a member of the Quincy City Commission, violated Section 112.3135(2)(a), Florida Statutes, by advocating the appointment of her son for a position with the Quincy Police Department; (2) whether Respondent violated Section 112.313(6), Florida Statutes, by using her official position as a member of the Quincy City Commission to attempt to obtain a job for her son with the Quincy Police Department; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, Carolyn Ford (Respondent), currently serves as a city commissioner for the City of Quincy, Florida, having first been elected to that office on March 31, 1998. As a city commissioner, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City Charter (Quincy City Charter or Charter) give the Quincy City Commission (City Commission or Commission) the authority to appoint and remove the city manager, the city attorney, and the city clerk. Under Section 3.04 of the Quincy City Charter, the city manager is given the exclusive authority to employ or appoint certain employees and administrative officers for the City of Quincy, including the police chief. Moreover, such employees or administrative officers serve at the pleasure of the city manager, who may, "when he deems necessary for the good of the services . . . suspend in writing, with or without pay, or remove any employee under his jurisdiction " Section 204(b) of the Quincy City Charter expressly prohibits the Commission or its members from dictating the appointment or removal of any city employee or administrative officer whom the city manager or any of his subordinates are empowered to appoint. Nonetheless, that provision of the Charter permits city commissioners, while in open or executive session, to "express their views and fully and freely discuss with the city manager anything pertaining to the appointment and removal of such officers and employees." By expressing their views to the city manager regarding the appointment or removal of city officials and employees, city commissioners may influence the hiring and firing of such officials or employees. Shortly before or after the March 1998 election, Roger Griswald, police chief for the City of Quincy, submitted his letter of resignation to City Manager Kenneth Cowen. Thereafter, City Manager Cowen appointed Robert Barkley (Barkley), who had served as Griswald's assistant for four years, as interim police chief. Barkley served in this position for about a month. Sometime during the week of May 17, 1998, City Manager Cowen called Barkley and asked whether he would accept the appointment as permanent police chief. On May 20, 1998, after City Manager Cowen talked to Barkley about being appointed permanent police chief, Barkley telephoned then Quincy City Commissioner Glenn Russ (Commissioner Russ or Russ). At Barkley's request, Commissioner Russ went to the Quincy Police Department (police department) to meet with Barkley. During the course of the meeting, it became apparent that Barkley had called the meeting in order to seek and gain Commissioner Russ' support of Barkley's appointment as permanent police chief for the police department. Prior to Barkley's calling Commissioner Russ, he was well aware that Commissioner Russ was dissatisfied with the police department because Russ had publicly expressed his views. Since 1995, Russ had been an outspoken critic of the police department, including Barkley. Russ' criticism stemmed from the police department's refusal to launch an independent investigation of a 1995 fatal car accident that involved a Quincy police officer and resulted in the death of two or three people, one of whom was Russ' cousin. During the May 20, 1998, meeting, Barkley disclosed to Commissioner Russ that City Manager Cowen wanted to appoint Barkley as permanent police chief. Barkley then told Commissioner Russ that he wanted to "bury the hatchet" and have Russ work with him. However, Commissioner Russ rejected both offers and was adamant that under no circumstances was he willing to "bury the hatchet." At some point during the May 20, 1998, meeting between Barkley and Russ, Auburn Ford, Jr. (Ford), the adult son of Respondent, stopped by the police department after he saw his friend Russ' car parked there. Barkley invited Ford to come into his office. Once Ford was in the office, Barkley asked him what it would take for "us to get along," to which Ford replied, "Nothing." Barkley then told Ford that City Manager Cowen was going to name Barkley police chief, and that there could be a "second-in-command" job for Ford. This idea was nixed by Ford who stated emphatically that he wanted to be police chief. Barkley then suggested that he should be police chief because he had more experience in law enforcement than Ford. However, Ford's position remained unchanged and he insisted that he wanted to be police chief, not second-in-command to Barkley. Barkley later called Anthony Powell to the May 20, 1998, meeting with Commissioner Russ and Ford. Barkley hoped to persuade Powell to support his appointment as the permanent police chief. Powell's support was important because he was considered by many in the community to be the frontrunner for the Quincy city manager position after City Manager Cowen was removed from office. Once Powell arrived at the May 20, 1998, meeting, in an effort to put their past disputes behind them, Barkley expressed his desire to "bury the hatchet." In response, Powell stated only that Russ was his friend and that he did not want to get in the middle of any conflict between Russ and Barkley. Further, Powell stated that he only wanted to be a good employee. Some time ago, when both Barkley and Powell were city employees, Barkley was Powell's supervisor. The relationship between Barkley and Powell became strained after, based on Barkley's recommendation, Powell was reprimanded and suspended for a week without pay. The May 20, 1998, meeting initiated by Barkley and held in his office, failed to gain for him the support he wanted. Neither Russ, Powell, nor Ford responded positively to Barkley's overtures. Russ told Barkley, "it was war" between them and he would not "bury the hatchet." Powell, though not as outspoken as Russ, never agreed to support Barkley as police chief. Finally, Ford never agreed to serve as second-in-command but rather insisted that he wanted to be police chief for the City of Quincy. Russ, Ford, and Powell were friends who sometimes socialized together. It was at a social attended by Russ, Ford, and Powell in January 1998 that the idea of Ford's becoming police chief was first discussed. Respondent was not present at this event. On or about May 28, 1998, Cowen advised Barkley that he was going to appoint him police chief and that the appointment would be announced at an official ceremony at City Hall the following day, Friday, May 29, 1998, at 11:00 a.m. Both Cowen and Barkley knew that such an appointment might be short-lived because the City Commission had recently directed the attorney for the city to prepare a resolution for then City Manager Cowen's removal. Nonetheless, Cowen and Barkley were optimistic that Barkley's appointment would not be immediately jeopardized because of their belief that Barkley had community support. On the evening of May 28, 1998, around 9:00 p.m., Barkley was paged by his wife and given Ford's telephone number to call. Ford had called Barkley after learning that Barkley would be appointed police chief the next day. Later that evening, Barkley returned Ford's call. Ford asked Barkley if he was going to accept the position of police chief. In response Barkley indicated that he was going to accept the position. Ford then told Barkley that he should not accept the position because "You know what's going to happen next Tuesday night," referring to the resolution which would be presented at the City Commission meeting Tuesday night to replace Cowen as city manager. Barkley was not sure what Ford meant by his reference that "something would happen" by next Tuesday. Barkley was unsure whether Ford was threatening to harm Barkley and/or his family or whether Ford was referring to the upcoming City Commission meeting. As a result of his conversation with Ford, Barkley became concerned for his safety and that of his family. After the telephone conversation with Ford, Barkley called his friend, then Quincy Police Officer James Corder and expressed his concern about Ford's call. Officer Corder then contacted Captain Jim Godwin of the Gadsden County Sheriff's Office and reported the incident. Later that night, Barkley told his wife and Dr. Harold Henderson, Superintendent of Gadsden County Public Schools and Barkley's best friend, about the telephone conversation with Ford. At about 8:00 a.m. the next morning, Friday, May 29, 1998, Ford was told that Barkley had made a report to the Gadsden County Sheriff's Office, alleging that Ford had threatened him. In an effort to clear up Barkley's misperception of Ford's comments, Ford immediately called Dr. Henderson and explained that he had not threatened Barkley. Ford then asked Dr. Henderson to talk to Barkley about the situation and convey that the comments were not a threat. Dr. Henderson called Barkley that same morning but was unable to convince him that Ford was not a threat. Later that morning, at about 11:00 a.m., the scheduled ceremony was held at Quincy City Hall for Barkley's swearing in as police chief. This event, attended by a number of community leaders as well as Barkley's family and friends, was planned to gather support for Barkley to remain in the police chief position after the new city manager was appointed. It was anticipated that the new city manager would be appointed within two weeks. At the conclusion of the ceremony, Ford went to Barkley in a non-threatening manner, congratulated Barkley and indicated that he wanted to work with him. Ford also told Barkley that they needed to talk and settle the matter. Thereafter, a brief verbal confrontation ensued between Ford and Officer Corder, who was near Barkley. At that time, there were a number of officers around Barkley who knew about the alleged threat and, consequently, were on heightened alert. As Ford approached Barkley, some of the officers moved toward Ford in a threatening manner. Thereafter, in an effort to prevent the situation from escalating, a police officer escorted Ford from the building. After Ford was escorted from City Hall, he called his mother, Respondent, and told her about the alleged threat and the confrontation with the police officers after the swearing-in ceremony. In describing the incident to Respondent, Ford stated that the police officers had "encircled him and . . . had their hands on their guns." After the conversation with Ford, Respondent became concerned for her son's safety. She believed that the situation involving her son's alleged threat was simply a misunderstanding and one that needed to be resolved immediately to prevent the matter from becoming a more serious problem. In an effort to quell any criminal repercussions against her son which could have resulted from Barkley's allegation and out of concern for his safety, Respondent requested the assistance of Dr. Henderson to help to resolve the misunderstanding between Barkley and her son. On May 29, 1998, after learning about Ford's alleged threat and the encounter with the police officers, Respondent called Dr. Henderson. Respondent explained the situation regarding the alleged threat and requested that Dr. Henderson meet with her and Barkley in order to resolve the misunderstanding. Because Dr. Henderson considered both Respondent and Barkley friends, he agreed to arrange and facilitate such a meeting. When Respondent arrived at Dr. Henderson's office the afternoon of May 29, 1998, she asked that Dr. Henderson "show some leadership" and help resolve the situation between her son, Ford, and Barkley. During the first part of the meeting, when only Respondent and Dr. Henderson were present, the focus of the meeting was the alleged threat. Respondent and Dr. Henderson discussed the alleged threat and agreed that the matter was getting "out-of-hand" and had escalated to the point where something had to be done. Further, Respondent indicated that she did not believe her son would make such a threat and that the whole incident was a misunderstanding. Dr. Henderson knew Ford and concurred with Respondent's opinion that Ford would not make such a threat. However, Dr. Henderson had been unable to convince Barkley of this in their previous two telephone conversations regarding the matter. At some point during the May 29, 1998, meeting, Dr. Henderson called Barkley and Respondent called Ford to join the meeting. Barkley arrived at the meeting before Ford. When Barkley arrived, Respondent discussed her concerns relative to the alleged threat. Respondent's comments to Barkley focused on the alleged threat. In fact, she said the same things to Barkley that she had said earlier to Dr. Henderson. That is, she did not believe Auburn Ford would make such a threat, the incident was simply a misunderstanding, and the matter needed to be resolved. This part of the conversation lasted about 15 or 20 minutes and concluded after Barkley explained that it was just a misunderstanding and that the matter had been "taken care of." Following the exchange regarding the alleged threat, with only Respondent, Barkley, and Dr. Henderson present, there was a discussion of problems with the police department. Respondent indicated her general dissatisfaction with the police department and her belief that the police department was "out of control." Respondent stated that she thought her son could be a "liaison" between the police and the Commission to help bridge the gap and solve some the department's "perception problems." However, in making these very general comments, Respondent never mentioned Ford's getting a job with the police department. After the aforementioned discussion, Ford arrived at the meeting in Dr. Henderson's office. Once Ford arrived, Respondent wanted Barkley and Ford to discuss and resolve the issue relative to the alleged threat. With Dr. Henderson serving as facilitator, Barkley and Ford discussed the alleged threat. Ford explained that Barkley had simply misinterpreted his comment. Once the issue of the alleged threat was resolved, the discussion between Barkley and Ford shifted to the possibility of Ford's working for Barkley within the police department. Prior to the May 29, 1998, meeting, Dr. Henderson was aware that Ford wanted to be police chief and, as facilitator, thought this matter was one that could be worked out amicably between Barkley and Ford. To this end, as part of this meeting, Barkley and Ford, with Dr. Henderson as facilitator, discussed Ford's working in the police department under Barkley. At some point during the discussion concerning the possibility of Ford's working for the police department, Ford stated that he had the support of the city commissioners. Because the City Commission had five members, Ford's statement implied that he had the support of three of the commissioners. Respondent was not involved in this part of this discussion and there is no indication that Respondent heard the comment. Respondent was in Dr. Henderson's office during the meeting between Barkley, Ford, and Henderson but was on the other side of the very large office looking at a television program. Respondent believed that the misunderstanding could be resolved if Dr. Henderson facilitated a discussion between Barkley and Ford. Therefore, Respondent did not participate nor was she involved in the discussions between Barkley and Ford, including the discussion about Barkley's bringing Ford on board to work with the police department. The meeting at Dr. Henderson's office ended after Agent Brinson of the Florida Department of Law Enforcement came by Dr. Henderson's office to interview Barkley and Ford about the alleged threat. When the meeting concluded, both Ford and Dr. Henderson had the impression that Barkley was going to hire or appoint Ford to a position with the police department, and the details would be worked out at a meeting the following Monday at 8:00 a.m. After the May 29, 1998, meeting, Barkley decided not to hire or appoint Ford. On Monday, May 31, 1998, Barkley called Dr. Henderson and indicated that he was not going to hire Ford. Dr. Henderson then told Barkley that he should call Respondent and tell her. Barkley complied with Dr. Henderson's request and called Respondent. When Barkley reached Respondent, he told her that he could not do "it" and hung up the phone. Four days after Barkley was appointed as permanent police chief of the Police department, City Manager Cowen was replaced by Anthony Powell. As city manager, Powell exercised his independent judgment to hire and retain those employees he felt best reflected his management style and who could best serve the interests of the City of Quincy. On June 9, 1998, a week after Powell was appointed city manager, he decided to replace Barkley. Two days later, Barkley was relieved from his responsibilities as police chief. The reason City Manager Powell decided to remove Barkley as police chief was that he disagreed with Barkley's management style and doubted his credibility. Prior to Barkley's separation from the police department, Respondent urged City Manager Powell to continue Barkley's employment with the city. However, notwithstanding Respondent's support of Barkley, Powell made it clear to Respondent that Barkley could not continue as police chief. On June 11, 1998, City Manager Powell appointed Rodney Moore to replace Barkley as Quincy's police chief. Ford applied for a position with the police department on June 19, 1998, three weeks after the May 29, 1998, meeting in Dr. Henderson's office. More than a month after it was filed, Ford's application had not been processed. On July 20, 1998, at approximately 1:40 p.m., Commissioner Russ telephoned Chief Moore's office. Commissioner Russ was agitated because his car had been vandalized on July 16, 1998, while it was parked in front of City Hall. The police officer called to the scene promised to have a written report prepared by the next day but had not done so. Commissioner Russ complained to Chief Moore that he had not received the incident report regarding the vandalism of his car. He also told Chief Moore that he (Moore) "had problems" because Ford should have been hired. After voicing his complaints, as if to explain his mood, Commissioner Russ told Chief Moore that he (Russ) had lost his job that day and had enough problems. Commissioner Russ ended the conversation by telling Chief Moore that he needed to "straighten it up" and "work it out." Later, on the afternoon of July 20, 1998, Commissioner Russ went to Respondent's office in Gretna as a volunteer to work on her office computers. While at Respondent's office, Commissioner Russ telephoned Chief Moore. Commissioner Russ still sounded very upset and during this conversation, again, complained about the police department's failure to timely process Ford's application for a reserved officer position with the police department. Commissioner Russ also told Chief Moore that he had problems because Ford had not been hired. Respondent was not in her office when Commissioner Russ was speaking on the telephone, and was unaware of the identity of the person to whom Russ was speaking. During his telephone conversation with Chief Moore, Russ was speaking very loudly and could be heard overheard by those in the area outside Respondent's office. Because Commissioner Russ' conduct was disruptive, Respondent went into her office and told Russ to leave. After Respondent told Russ to leave her office, he told Chief Moore to explain it to "her." Russ then either handed the telephone receiver to Respondent or put it on the desk. Once Respondent had the telephone receiver, Chief Moore continued giving the explanation regarding the reasons for the delay in processing Ford's application. The reason Chief Moore continued the explanation he was giving Russ was that he assumed Respondent was interested in the processing of her son's application. After listening to Chief Moore's explanation, Respondent expressed a concern about the manner in which the application was being processed. Respondent's specific concern appeared to be the length of time it took to process an application. However, Respondent made no attempt during this telephone conversation or any other time to influence Chief Moore's decision to hire her son. In fact, the credible testimony of Chief Moore was that Respondent "never mentioned anything about hiring him" and that Russ was the only person pushing Ford's employment. At no time during the May 29, 1998, meeting or anytime thereafter did Respondent participate in any discussion about Ford's working with the police department. In fact, although Ford had worked extensively in law enforcement, Respondent was never supportive of her son's desire to work in this area. At no time did Respondent threaten, coerce, or intimidate Barkley or anyone else about hiring her son, Ford, to work for the police department. Ford was never a paid employee of the police department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order and public report be entered finding that Respondent Carolyn Ford, did not violate Sections 112.3135(2)(a) and 112.313(6), Florida Statutes. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of April, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack L. McLean, Jr., Esquire McGuire, Woods, Battle & Booth, LLP 285 Peachtree Center Avenue, Northeast Marquis Two Tower, Suite 2200 Atlanta, Georgia 30303-1234 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Willie A. Brown, was issued certificate number 43-83- 002-01, and certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on April 1, 1983. The Respondent was also issued certificate number 43-78-500-00, and certified as a correctional officer on July 1, 1981. At all times material to this case, the Respondent was employed as a police officer by the Lakeland Police Department. Respondent was assigned as a detective to the Special Investigations Unit (SIU) (now SID) of the Lakeland Police Department in 1987. Respondent's duties as a detective with the Lakeland Police Department- SIU were primarily the investigation, apprehension, and arrest of those individuals involved in the sale, delivery, and possession of illegal narcotics. The main goal of the Lakeland Police Department-SIU was to curb vice and illegal narcotics, and get them off the street. When Respondent began with the unit, there were five or six detectives. By 1989, the unit had grown to 18 detectives, two sergeants, and a lieutenant. The growth of the unit was due to the increase in illegal drug trade in Lakeland, especially of crack cocaine, which had reached almost epidemic proportions by 1989. Hand-in-hand with the increased drug trade was an increase in street- level violence, including drug related shootings, in certain areas of the city. As part of his duties, Respondent participated in "buy-busts" or sting operations and reverse sting or "reverse" operations. A sting or "buy-bust" requires an undercover officer or confidential informant (CI) under an officer's supervision to purchase illegal narcotics with previously recorded "buy" money issued by the Lakeland Police Department. Once the "buy" was completed, the purchased drugs would be field tested by the officer, placed into an evidence bag and marked, impounded into evidence, and then sent to a lab for analysis. The entire chain-of-custody would be documented from the time the officer obtained the drugs, to the time they were returned from the lab. The seller would either be arrested immediately after the sale, or a warrant for his/her arrest obtained within a short time. Whenever possible, the buy would be recorded by audio or videotape. In July of 1989, LPD had ample recording equipment available to its officers for such purposes. A reverse sting is the opposite situation where an undercover officer or CI under supervision sells drugs to another individual. Prior to conducting a reverse sting, the officer would obtain a known quantity of a previously tested substance (marijuana or cocaine) from a supervisor at the police department. The above was done for evidentiary purposes so that it could be proven in court that the substance sold to the targeted individual was, in fact, cocaine or marijuana. Once the drugs were sold to an individual, he/she was immediately arrested to avoid putting the drugs back on the street, or letting the drugs "walk." The drugs sold to the subject would be recovered, and sent to the lab to be re-tested. With one exception, authorized by the State Attorney's Office involving a very small amount of marijuana, drugs were not allowed to "walk" after a reverse. If a situation were to arise where drugs were to be "walked," prior approval would have to be obtained from the State Attorney's Office. Whenever possible, reverse sting transactions were to be audio or video recorded. Additional law enforcement assistance or backup was always required on a reverse sting operation for safety and evidentiary purposes. Before a reverse sting was conducted, prior approval or authorization from one of the SIU supervisors, was required. Once a reverse sting was completed, the money obtained from the purchaser was always required to be logged and impounded into evidence to preserve the chain of custody for evidentiary purposes. All stings and reverse stings were to be documented in reports. In July and August of 1989, the Respondent was thoroughly familiar with the procedures and proper methods for conducting stings and reverse sting operations. He had conducted or been involved in scores of such operations and, prior to the incidents giving rise to the instant case, had followed accepted procedures. It was a common occurrence that SIU detectives would locate and confiscate abandoned or discarded illegal drugs without making an arrest. Sergeant Tom Brown testified that although initially all "found contraband" had to be turned in and reported for each separate instance, he changed this policy due to the volume being recovered by 1989, and allowed his detectives to turn it in by the end of their shift to a superior to be placed in a safe, documented on one report, and disposed of later. Respondent was well aware of the policy for turning in found contraband, and prior to the incidents in the case at bar, followed said procedure. Although at one time, PDD detectives were allowed to resell found contraband in "quickie-reverse stings," this practice had been abandoned by 1989 due to problems with chain-of-custody and later proving in court the nature of the items sold. SIU investigators were also responsible for collecting intelligence information on individuals involved in criminal activity. In July of 1989, there were two individuals, Bill Lepere and Lynn Adams, responsible for maintaining intelligence reports or files. In addition, the members of SIU shared information at weekly meetings. In July/August 1989, after-hours work, such as arrests, had to be approved by a supervisor. In July/August 1989, if a SIU detective was investigating an active CI, either one working with Lakeland Police Department or another law enforcement agency, it was necessary to notify another member of SIU to avoid compromising an active investigation. In July/August 1989, if a SIU detective was conducting an investigation into alleged criminal activity of another police officer or law enforcement agent, it required notification and approval of a supervisor. By 1989, Respondent was a senior detective in DIU, who routinely followed policies and procedures, and even helped develop a SIU policy manual. In July and August 1989, it was standard operating procedure for investigations by SIU detectives and all Lakeland police officers to be conducted only after notifying and obtaining permission from a supervisor. In July and August 1989, all SIU detectives and all Lakeland police officers were to document their activities regarding investigations in reports in a timely manner. In July and August of 1989, all SIU detectives and all Lakeland police officers were to handle evidence collected in the course of their duties in accordance with departmental procedures. In July and August of 1989, all SIU detectives and all Lakeland police officers were prohibited from using evidence for their own personal use or from concealing it, destroying or tampering with, or withholding it in any way. In July and August of 1989, Respondent had a good working and trusting personal relationship with his supervisor, Sergeant Tom Brown. In July and August of 1989, Respondent also had a good working and trusting personal relationship with his partner, Vic White, and all members of the SIU. Respondent and his partner were considered two of the most self- motivated and aggressive officers in the unit, and Respondent had received citations and commendations for his work. In late 1988, Reggie Burns, a Special Agent (SA) with the Federal Bureau of Investigations (FBI) made contact with an individual by the name of Gloria Taylor. At the time, SA Burns, an agent since 1985, was assigned to the narcotics squad out of the Miami FBI Office. SA Burns met with Gloria Taylor in the Richland County Jail in Columbia, South Carolina, with the purpose of seeking her cooperation with them regarding some of her associates that were involved in criminal activity. Taylor became a paid FBI informant for SA Burns in exchange for Burns securing her release from jail. The FBI was aware of Gloria Taylor's criminal history, which made her more attractive as an informant due to her contacts. As with all confidential informants utilized by Burns and the FBI, Taylor was specifically instructed not to engage in criminal activity except at the direction of Burns. Taylor was instructed that whenever she was associating with those who dealt in narcotics, Burns was to be notified. It was not known whether Taylor abided by the above instructions prior to her dealings with Respondent. By their nature, CIs are hard to keep track of since their movements are not restricted. They are often in the streets, at large, and the agent may have to initiate contact with them. Taylor generally maintained contact with SA Burns from the time she began working with him until August of 1989. Prior to July of 1989, Burns became aware that Gloria Taylor was travelling to Tampa and Lakeland regularly, and possibly living in Lakeland. Due to the above, Burns contacted the FBI SA in Lakeland, "Doc" Gardner, as well as Sergeant Lynn Adams, Sergeant William Lepere, Sergeant Tom Brown, and Detective Ronnie Clayton, and possibly even Respondent of the Lakeland Police Department, and requested that they monitor Taylor's activities, and those of other individuals he was investigating at the time. SA Burns did not know Respondent prior to July 1989, and had not heard anything about him. Gloria Taylor first met Willie Brown in 1987. Although she had been stopped by him several times, he had never arrested her, and she had no disagreements with him. At all times in her contacts with Respondent, Taylor was aware that Respondent was a Lakeland Police Officer. In July/August of 1989, Gloria Taylor was a well-known criminal figure in the Lakeland area with a reputation for being involved in drug dealing, along with members of her family, T. Y. Brown and Gary Brown, who were known as the "Miami Boys." Gloria Taylor was thought by members of the Lakeland Police Department-SIU to be responsible for putting large amounts of illegal drugs out on the streets of Lakeland. In that time period, Gloria Taylor had a reputation for being a dangerous individual. Respondent, along with other members of the Lakeland Police Department, were involved in the arrest of Taylor's brother, T. Y. Taylor. T. Y. Taylor was convicted and sentenced to life imprisonment for that offense. Taylor was upset with the Lakeland Police Department, and Respondent personally, due to her brother's arrest and conviction. There were rumors that Gloria Taylor and her family had a "contract" out for the murder of Respondent, his partner Vic White, and Sergeant Tom Brown in retaliation for T. Y. Brown's arrest and conviction. In addition, there was a great deal of violence associated with drug dealers in general during that time period. Despite repeated attempts to make good cases on Gloria Taylor, she seemed to always escape prosecution or lengthy jail sentences. This was a source of frustration for Respondent and other SIU members. Prior to July of 1989, it became well-known in the SIU that Gloria Taylor was working with the FBI as an informant, and Respondent was aware of this fact. It was believed among members of LPD-SIU and Respondent that Taylor continued to engage in illegal drugs activities despite being an FBI-CI. During this same period of time, there was a feeling of mistrust by the LPD-DIU, not only of the FBI in general, but of SA Burns in particular. Lakeland resident, SA "Doc" Gardner, was the source of some of this distrust as he related that SA Burns appeared to be deviating from FBI policies. However, Gardner confirmed that SA Burns was authorized to come to the Lakeland area, and was conducting a legitimate investigation. This was related to the SIU and Respondent specifically prior to July 1989. Gardner made it known to the SIU and Respondent in particular that he was working with SA Burns. Gloria Taylor was a regular topic of conversation at SIU meetings prior to July 28, 1989. Prior to July 28, 1989, Respondent made only one mention at the SIU meeting that he was working on something regarding Gloria Taylor. Everyone else in the unit was working on something related to Gloria Taylor also. In July/August 1989, Respondent could have readily obtained assistance for an investigation into Gloria Taylor from Sergeant Tom Brown, his partner Vic White, or others in SIU. Respondent should have gotten authorization for such an investigation from Sergeant Brown. If Respondent had wanted to initiate an investigation of an FBI-CI like Gloria Taylor, it would have been considered a major case in July 1989. Such an investigation would require backup, prior authorization from a superior, and would have to be documented by reports. Prior to July 1989, Respondent had not conducted a major investigation without the knowledge, approval, and authorization of his superiors. Respondent never sought or received authorization from Sergeant Brown or anyone at the Lakeland Police Department to sell drugs to Gloria Taylor. Sometime in 1989, Respondent approached Gloria Taylor at a Lakeland residence, and took her for a ride in his Lakeland Police Department's unmarked vehicle. While they were in Respondent's vehicle, Respondent showed her a quantity of crack cocaine packaged in small-sized baggies inside a larger baggie. Respondent stated he had confiscated the cocaine during a drug bust. Respondent indicated to Taylor he wanted to "get rid of" the cocaine, and asked $700 for it. Ms. Taylor gave him $650, and agreed to pay him the remaining $50 later. Respondent later threatened to arrest Gloria Taylor if she didn't pay him the remaining $50, which she eventually did. Gloria Taylor later sold the $700 worth of cocaine to other individuals. Gloria Taylor, at first did not tell SA Reggie Burns of her drug purchase from Respondent, but did tell him later when confronted by SA Burns. At that meeting, Burns instructed Taylor not to meet with Respondent again until a controlled buy could be set up. SA Burns received permission from his Assistant Special Agent in Charge to conduct a monitored buy from Respondent to Gloria Taylor. The transaction was arranged for July 28, 1989, at McDonald's on Ariana and Central Avenue in Lakeland. Agent Burns, assisted by SA Pat Johnson, supplied Taylor with a recording device, which she hid in her bra, and prerecorded buy money. At this July 28, 1989, meeting, Respondent arrived in his Lakeland Police Department vehicle. Respondent did not pat Gloria Taylor down for weapons. Gloria Taylor met with Respondent, purchased approximately 10 pieces of crack cocaine from Respondent, and paid him $100 for the crack cocaine. Respondent indicated that the cocaine he sold Taylor was confiscated during a drug bust. During her discussion with Respondent on July 28, 1989, Taylor and Respondent discussed him giving her brother Gary Cocaine. Respondent indicated he could carry as much cocaine as he wanted while he was on duty, but if he was off duty, he might have to come up with an excuse. Respondent asked Taylor to keep him apprised of Reggie Burns' and the FBI's activities. Taylor did not acknowledge her relationship with Burns. Respondent cautioned Taylor not to tell anyone about their dealings. After the transaction with Respondent was completed, Taylor turned over the cocaine and tape-recording to SA Burns. SA Burns submitted the cocaine to the Drug Enforcement Administration (DEA) lab for analysis. The results were that it was, in fact, cocaine. At no time on July 28, 1989, or thereafter did Respondent attempt to arrest Taylor, or retrieve the cocaine he sold her. After the July 28, 1989 transaction, SA Burns notified the Tampa FBI Office of his investigation of Respondent. The Lakeland Police Department was also notified of the investigation. At no time after the Lakeland Police Department were notified did anyone come forward and inform SA Burns, or anyone at the FBI, that Respondent was conducting an authorized investigation of Gloria Taylor. SA Burns then had Taylor set up a second meeting with Respondent. The meeting took place at the same location as the July 28, 1989 meeting, at 12:15 a.m., on August 17, 1989. Gloria Taylor was given $600 in previously recorded and photocopied FBI "buy" money. Prior to the meeting, Gloria Taylor was searched, her vehicle was searched, and the other cooperating witness, Catherine Smith was searched, all with negative results; that is, no money or contraband were discovered. Gloria Taylor was again equipped with a recording device. Respondent arrived in the same unmarked vehicle, and Gloria Taylor entered his car while SA Burns and Johnson surveilled her. Respondent, again, did not pat Taylor down to see if she had any weapons. During the second monitored meeting between Respondent and Taylor, Respondent sold her 32 rocks of cocaine, and Taylor paid for it with $350 of the FBI buy money. Respondent told Gloria Taylor she could cut the rocks up, sell them, and double her money. Immediately following the transaction, Taylor met with SA Burns, and turned over the crack cocaine, tape recorder and tape, and excess money. SA Burns turned the 32 cocaine rocks in to the DEA lab for testing. The rocks tested positive for cocaine. At no time on August 17, 1989, did Respondent attempt to arrest Gloria Taylor, or retrieve the cocaine. Respondent never told Sergeant Brown about the sales on July 28 and August 17, 1989, after they were completed. Respondent never got authorization to let Gloria Taylor "walk" with the drugs sold to her on July 28 or August 17, 1989. Respondent never requested backup for his meetings with Gloria Taylor on July 28 or August 17, 1989. Respondent never received authorization to work overtime on drug investigation on July 28 or August 17, 1989. Respondent never filled out any intelligence reports on his anticipated or actual sales to Gloria Taylor. Respondent never had pretested drugs issued to him by a supervisor prior to his July and August 17, 1989, sales to Gloria Taylor. Respondent never placed into an evidence bag, marked, impounded, or turned in the money to the Lakeland Police Department from the July 28 or August 17, 1989, drug sales to Gloria Taylor. To date, no one, even Respondent's partner Vic White, has come forward to state Respondent told them of his drug sales to Gloria Taylor before- the-fact. Sergeant Brown never approved warrants against Gloria Taylor for either sale. Gloria Taylor received immunity and $4,000 from the FBI for her participation in Respondent's case. In February of 1991, Gloria Taylor was arrested by the Lakeland Police Department for trafficking in cocaine. In March of 1991, Taylor was sentenced to life in prison as a habitual felony offender. The FBI did not assist Taylor in any way in that case. Gloria Taylor was not paid anything or compensated in any way for her testimony at the hearing in the instant case. After the second sale of drugs from Respondent to Gloria Taylor, Respondent was arrested by members of the Tampa FBI Office and the Lakeland Police Department. The $350 FBI buy money was recovered from Respondent's person after his arrest. At no time during Respondent's conversations with Gloria Taylor did he ask her to become a confidential informant for the Lakeland Police Department. After Respondent's arrest, Sergeant Lynn Adams, assisted by then-FBI Agent "Doc" Gardner, conducted a thorough search of Respondent's vehicle and office. Prior to the search, Respondent's vehicle had been in FBI custody. There was no U.S. currency found in Respondent's vehicle. There were no intelligence reports, found in Respondent's vehicle. Notebooks found in the vehicle were secured, boxed, and placed in Lieutenant Roddenberry's office for safekeeping. Located in Respondent's car was a zip-lock bag with a small cocaine rock and a sip-lock bag with white powder, both field-testing positive for cocaine. The five $20 bills of FBI buy money from Respondent's first sale of cocaine to Gloria Taylor were not located by Adams or Gardner in the search of the vehicle. Adams and Gardner thoroughly searched Respondent's office, which had been padlocked since his arrest. Notebooks found in the Respondent's desk were placed into a box for safekeeping in Lieutenant Roddenberry's Office. The only U.S. currency located in Respondent's desk was a $1 bill altered to look like a $20 bill. The five $20 bills that were FBI buy money from the July 28, 1989, transaction were not located anywhere in Respondent's desk or office. There were no reports located in Respondent's desk or office. There were no notes or notations referencing Gloria Taylor found in Respondent's car, desk, office, or notebooks, although Adams and Gardner specifically looked for such notes. The search of the car and office took approximately three and a half to four hours. Respondent was indicted by a federal grand jury for two counts of distribution of cocaine within one thousand feet of a school, and one count of carrying a firearm while engaged in a drug trafficking crime. Respondent was acquitted of the charges after a jury trial in May 1990. Several members of the Lakeland Police Department believed Respondent was conducting his own "sting" operation at the time of his arrest, and would work with him again as a law enforcement officer. After his arrest, Respondent continued to testify on cases where he had been the arresting officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. RECOMMENDED this 19th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4067 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30 ,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54(inpart) ,55,56,57(inpart),58,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,78 ,79,80,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,98,101,102,103,104,105,106,1 07,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,1 27,128,129,130,131,132,133,135,136,137,138,139,140,143(inpart),144,145,146,147,1 48,149,150,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,1 70 Rejected as insufficient evidence or as against the greater weight of evidence: paragraphs - 96,97,99,100,134,141,142,143(in part),151,152 Respondent's findings of fact Respondent's proposed findings of fact were submitted in an unnumbered format. For identification purposes, I have assigned a page and paragraph number to each full paragraph as they appear in Respondent's proposed recommended order) Accepted in substance: page 1, para. 1, para. 2 (in part); page 2, para. 2 (in part), para. 3 (in part); page 3, para. 2 (in part); page 4, para. 1 (in part), para. 2 (in part), para. 3 (in part); page 5, para. 2, para. 3 (in part), para. 4 (in part); page 7, para. 1 (in part), para. 2 (in part); page 8, para. 1 (in part), para. 2 (in part) Rejected as not supported by credible evidence: page 2, para. 3 (in part); page 4, para. 1; page 5, para. 3; page 5, para. 4; page 6, para. 1, para. 2 Rejected as irrelevant or subsumed: page 1, para. 2; page 2, para. 1, para. 2 (in part); page 3, para. 1, para. 2; page 4, para. 2, para. 3; page 5, para. 1, page 7, para. 1, para. 2; page 8, para. 1, para. 2 COPIES FURNISHED: Gina Cassidy, Esquire Assistant General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 C. Kenneth Stuart, Jr. P.O. Box 2177 Lakeland, FL 33806-2177 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Respondent, Jose S. Galvan (Galvan) , was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission (Commission), on December 14, 1984, and was issued certification number 19-84-002-05. At all times material hereto, Galvan was employed as a police officer by the City of Homestead, Florida. By administrative complaint dated March 31, 1988, the Commission charged that Galvan lacked the good moral character required of a law enforcement officer because he had used excessive force in the arrest of one John Delvalle and did unlawfully assault one Jimmy Carey, a prisoner, with a pistol. Galvan denied the allegations of the administrative complaint, and the matter was referred to the Division of Administrative Hearings for a formal hearing. The John Delvalle incident. On May 12, 1986, between 11:30 p.m. and midnight, Galvan was on routine patrol for the City of Homestead. At that time Galvan observed two males, one of whom was later identified as John Delvalle, fighting in the parking lot of a shopping center. Galvan proceeded to the shopping center, but before exiting his patrol car to confront the combatants, radioed for a backup officer to assist him. Officer Rodney Clayton took the call, and proceeded toward the shopping center. Before Officer Clayton arrived at the scene, Galvan exited his patrol car and ordered the combatants to stop fighting. One of the combatants stopped fighting but the other, John Delvalle, kept his fists up and announced his intention to continue the fight. Galvan again ordered Delvalle to stop fighting or he would be arrested. When Delvalle persisted, Galvan attempted to arrest him, but Delvalle bolted from the area. When Delvalle bolted, Galvan radioed the dispatcher that the suspect was running from the scene, and then took up a foot pursuit after Delvalle. At this time, Officer Clayton arrived at the shopping center, and observed Galvan in pursuit of Delvalle. Officer Clayton drove his patrol car parallel to Delvalle's line of flight, overtook him, and then stopped his car in front of Delvalle to block his escape. At this point, Delvalle was approximately two feet from the patrol car, and was leading Galvan by one or two hundred feet. When Officer Clayton stopped his car Delvalle immediately raised his hands, dropped to one or two knees and exclaimed "I give up. I stop." Officer Clayton then grabbed Delvalle's left hand, put it behind his back and began handcuffing him. During this period, Delvalle was submissive to arrest and made no threatening gestures. As Delvalle was being handcuffed, Galvan arrived and announced loudly to Delvalle words to the effect "Don't you ever run from me again" or "Don't you run from the cops again", and kicked Delvalle twice in the side of the face, causing his head to strike the concrete. As a consequence, Delvalle suffered lacerations to his head, blurred vision in the right eye, and facial swelling. Galvan's conduct toward Delvalle was unwarranted, and committed when Delvalle was peacefully submitting to arrest. The Jimmy Carey incident. On May 28, 1986, Detective Robert Harrelson of the Homestead Police Department arrested a burglary suspect named Jimmy Carey. Carey had initially fled from the officers who sought to arrest him, but upon being apprehended was submissive and quiet. Carey was placed in Galvan's patrol car for transport to the Homestead Police Station. During the course of the ride, Carey continued to behave submissively and, continuing his quiet behavior, engaged in no conversation with Galvan. Upon arrival at the station, Galvan escorted Carey into the booking room, removed his handcuffs, and directed him to be seated on a bench at the opposite side of the room. Carey complied, and seated himself on the bench next to another prisoner, Fralon Warren, who was then being processed by the jailer Mark Jefferson. This bench was located 10 to 15 feet from the entry door. The jailer's desk, at which Jefferson was seated, was located midway between the door and the bench. Before entering the booking room, it is the policy of the City of Homestead Police Department that officers remove their service revolvers and secure them in a lock box located at the entry door. Galvan was aware of such policy but chose, as apparently other officers occasionally did, to ignore such policy because he thought he would be in the booking room for only a short period of time. Galvan's action was not prudent in view of the potential for violence within the booking room, and his decision to ignore departmental policy was unwarranted. While Carey was seated on the bench with prisoner Warren and Galvan was standing at the door some 10 to 15 feet away, Galvan overheard a comment of Warren's which he attributed to Carey. Although the proof fails to disclose the nature of the comment, it does demonstrate that Galvan found it offensive because upon its utterance he pulled his service revolver, pointed it at Carey and announced "Low-lifes like you have no reason to live for what you did." When Carey started to say something, Galvan cut him off and announced "you say one more thing to me, I'll blow your brains out." At this point jailer Jefferson interceded and told Galvan there was no need for his presence in the booking area. Thereupon, Galvan holstered his service revolver and departed. Galvan's conduct toward Carey was unwarranted because there was no real or immediate danger to himself or others. Rather, the proof demonstrates that Galvan reacted to a comment he found offensive, and as a result placed Carey in a position of fear for his life. Galvan under stress? At hearing, Galvan's wife testified that during the time in question she felt her husband was under a great deal of stress due to their separation and his police work, and that the Homestead Police Department was nonresponsive to her requests for assistance. Galvan did not, however, suggest that stress was the catalyst for his actions but, rather, denied that he committed any of the offenses. Considering the evidence in toto, the proof fails to support the conclusion that Galvan's actions were precipitated by severe emotional distress, and such suggestion does not, therefore, mitigate the seriousness of his conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Galvan's certification. DONE and ENTERED this 17th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1989. APPENDIX The Commission's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-16. Addressed in paragraphs 4-11. 17-26. To the extent necessary addressed in paragraphs 4-11. Otherwise rejected as testimony or subordinate. 27-41. Addressed in paragraphs 12-18. Otherwise rejected as testimony or subordinate. Galvan's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 4. Addressed in paragraph 5. 4-7. Addressed in paragraph 6. 8. Addressed in paragraph 7. 9-10. Addressed in paragraph 7. Otherwise rejected as not supported by credible proof. 11-12. Addressed in paragraphs 5, 7, and 8. The proposal that Officer Clayton slapped Delvalle in the face is rejected as not supported by credible proof. 13-16. Rejected as not supported by credible proof. See paragraphs 9-11. 17. Rejected as subordinate or not relevant. 18.-19. Addressed in paragraphs 12 and 13. 20. Rejected as not supported by credible proof. See paragraph 13. 21.-23. Addressed in paragraphs 14 and 15. 24.-25. Rejected as not supported by credible proof. See paragraphs 16-18. 26-.27. Rejected argument as recitation of testimony, subordinate, and contrary to the proof. See paragraph 16- 18. 28.-29. Rejected as subordinate or not relevant in light of the findings made in paragraphs 16-18. 30. Addressed in paragraph 19. COPIES FURNISHED: Joseph S. White, Esquire Office of the General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ronald J. Cohen, Esquire Klausner & Cohen, P.A. 1922 Tyler Street Hollywood, Florida 33020 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on September 12, 2011.
Findings Of Fact The events at issue concern Embarq's termination of Mr. Garcia's employment on September 13, 2010. At the time of his termination, Mr. Garcia was a 45-year-old male. His national origin is Puerto Rico, and he is of Hispanic descent. Further, Mr. Garcia suffered from migraine headaches, which were the result of a work-related injury. He had been an employee of Embarq, and its predecessor companies, since August 10, 1998. Before his termination, Mr. Garcia worked as a technician servicing business and residential customers. His base of operations was at the customer service center located in Winter Park, Florida, referred to by Embarq as the Winter Park "Railroad Avenue" Center. As a service technician, Mr. Garcia would receive his daily customer calls through a computer system that sent out work orders. Mr. Garcia would drive the Embarq vehicle to the customer's house or business to complete the service. The Embarq vehicle was equipped with a global positioning satellite (GPS) monitor tracking the vehicle's location, including the time the vehicle left and returned to the Embarq office. Finally, Mr. Garcia's work time was recorded by Embarq's computer system, named SAP, in which Mr. Garcia would enter a code indicating the tasks accomplished in customer service, the time when the task began and the time when he completed the task. As a service technician, Mr. Garcia was required to truthfully and accurately enter his time worked into the SAP system. Ms. Smith was Embarq's area operations manager for the Central Florida area, including the Winter Park center where Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that some of the Embarq vehicles were returned to the customer service centers before the end of the work day at 4:30 p.m. Consequently, she asked the customer service center supervisors to examine all employee time records and determine whether or not a problem existed. Ms. Smith learned from Charles Clendenny (Mr. Clendenny), the acting manager for the Winter Park customer service center, that the examination showed some questionable activities. Based on Mr. Clendenny's report, Ms. Smith asked Ms. Trinder to conduct an independent review of all the employees at the Winter Park “Railroad Avenue” center. Ms. Trinder was Embarq's human relations business-partner, and part of her duties involved conducting employee investigations. Ms. Trinder examined the GPS documentation, the SAP time sheets, and the computer systems work force management assignments for all of the Winter Park “Railroad Avenue” employees. Her examination revealed questionable activities by four employees: Mr. Garcia, Scott Somner, James Shaunessy, and William Allison. The record showed that Mr. Somner is an African American and was approximately 48 years old at the time; that Mr. Shaunessy is a Caucasian, age in his sixties; and that Mr. Allison is an African American, age in his twenties. Of the four employees, only two were terminated, Mr. Garcia and Mr. Somner. Ms. Trinder and Ms. Smith credibly testified that during the interviews, they had learned that Mr. Shaunessy and Mr. Allison had received approval from their prior supervisor, Joe Venezia, to leave work early on the specific dates. Further, the data from the three computer systems confirmed Mr. Shaunessy's and Mr. Allison's explanations for leaving work early for the specific dates. Both Mr. Shaunessy and Mr. Allison were given training by Ms. Smith and Ms. Trinder concerning Embarq's work attendance polices. As to Mr. Garcia, Ms. Trinder's examination showed that Mr. Garcia had falsified his time records, and that he had unscheduled work absences. At the conclusion of the interview, Ms. Trinder typed a statement of Mr. Garcia's interview. The statement indicates that Mr. Garcia stated he did not know why he had entered that he had worked on two unscheduled work days, July 2, 2010, and July 14, 2010, and that he had mistakenly entered 4.75 hours as worked on an August 3, 2010, a date he actually took unscheduled time off. The result of these time entries was that Mr. Garcia was paid for work days on which he did not work, and that he avoided discipline for missing work. The Embarq employee handbook shows that employees are subject to discipline, if the employee misses work on a scheduled work day. The record shows that Mr. Garcia had previously been trained by his supervisor about the problem of missing work without providing the required 24-hour notice. On September 10, 2010, Ms. Smith sent a request to Ms. Susan Sarna, vice president/general manager, recommending that Mr. Garcia be terminated. Similarly, Ms. Trinder sent a recommendation to her supervisor recommending Mr. Garcia's termination. On September 13, 2010, Mr. Garcia was terminated as an Embarq employee. Mr. Garcia clearly testified that even though he had migraines that he had not requested any type of accommodation from his supervisors or from Embarq. Mr. Garcia did not bring forward any evidence, either direct or indirect, showing that Embarq's termination of his employment was the result of an unlawful employment practice. Mr. Garcia did not bring forward any evidence showing that Embarq's offered explanation that it terminated Mr. Garcia for attendance and time falsification was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner failed to show that Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of September, 2012.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the certification of Samuel D. Stevens as a law enforcement officer should be revoked for failure of Mr. Stevens to maintain good moral character as required by Section 943.13(7), Florida Statutes.
Findings Of Fact Samuel D. Stevens was certified by the Criminal Justice Standards and Training Commission on November 19, 1982, certificate number 0232529 (Tr. 52-3*). Mr. Stevens was employed in 1985 by the City of Winter Haven Police Department (Tr. 19). James D. Kirkland and Mark Myers were Winter Haven police officers (Tr. 13, 17). On March 14, 1985, Kirkland and Myers were working undercover and went to the Inn Club in Winter Haven where they tried to purchase cocaine or heroine from club employees (Tr. 19-20, 25). At that time, they dressed in street clothes (Tr. 20), and kept their identities secret as they attempted to gain the trust of employees to be able to purchase drugs (Tr. 20-23). When Kirkland arrived at the Inn Club, he saw a man he knew to be a police informant, Tony Thomas (Tr. 23). The Winter Haven Police Department kept Mr. Thomas' status as an informant secret. His status was not known to the Respondent, Mr. Stevens (Tr. 16-19, 49, 51). Officer Myers and Mr. Thomas walked outside the Inn Club through a parking lot to use a public telephone. As they did so, Samuel Stevens drove into the parking lot and saw Myers and Thomas together (Tr. 23, 24). Stevens entered the club while Officer Kirkland was inside (Tr. 23); Officers Myers and Kirkland then left the club (Tr. 24). On March 15, 1985, Officer Kirkland and an investigator from the State Attorney's Office, Mr. Martin Hodges, met with Tony Thomas (Tr. 5, 25). Before that meeting, Thomas had told Hodges that illegal drugs were being sold by people living at 1904 Brown Street, Winter Haven (Tr. 6), the residence of his half-brother, Calvin Tribett. Tribett was selling the drugs, and Respondent Stevens lived in the same residence. Thomas believed Stevens was aware of the drug sales (Tr. 15, 19). When Kirkland and Hodges met with Thomas on March 15, 1985, Thomas agreed to wear a concealed microphone, which was placed on him (Tr. 12, 48). Kirkland and Hodges instructed Thomas to go to the Brown Street address and attempt to buy marijuana (Tr. 7, 8, 28). Officer Kirkland gave Thomas $40.00 to buy the marijuana (Tr. 7-8). Kirkland and Hodges then drove Thomas near the residence and let him out of the car (Tr. 8). The officers positioned themselves about two blocks from the residence to listen to the conversation through the monitoring equipment Thomas wore. They also taped the conversations (Tr. 8, 9, 29). Those conversations were transcribed (Tr. 31, 32; Petitioner's Exhibit 1). When Mr. Thomas came to the residence he spoke with his half-brother, Calvin Tribett. Tribett told Thomas that "Sam" had told him that the men Thomas had been with at the Inn Club were "narcs" (Tr. 9; Petitioner's Exhibit 1). Officer Kirkland then recognized the voice of Samuel Stevens in the conversation. He knew Stevens' voice, for he had trained Stevens for police duties (Tr. 14-15, 33, 36). Respondent Stevens warned Thomas that the men he was with the night before were police narcotics officers and identified Officer Kirkland by name (Tr. 11, 12, 32, 34; PX-1). During the same conversation, Mr. Thomas stated that he was there to buy marijuana and Stevens volunteered to take Thomas in Stevens' car to buy marijuana (Tr. 49, 50; PX-1). Shortly thereafter on March 17, 1985, Mr. Thomas met Respondent Stevens and Calvin Tribett at a local Pizza Hut. Stevens warned Thomas again that the men he had been with at the Inn Club were narcotics officers and identified them by name as Detective Kirkland and Officer Mark Myers (Tr. 48, 49). On March 26, 1985 Officers Kirkland and Myers met with Thomas and again placed a concealed microphone on his person (Tr. 47, 50). Under a plan devised by Kirkland (Tr. 39, ln. 20), the officers gave Mr. Thomas a handgun and instructed him again to go to Respondent's Brown Street address, to tell Respondent the gun was stolen and to request Mr. Stevens to buy the gun (Tr. 37). Mr. Thomas followed those instructions, and Officers Kirkland and Myers listened to the conversation (Tr. 38-39). Thomas told Stevens the gun was stolen and for sale. Stevens declined to buy the gun and advised Thomas to "get rid of it" (Tr. 39; Petitioner's Exhibit 1). Mr. Stevens made no report of the incident to the Winter Haven Police Department and did not attempt to return the "stolen" gun to its rightful owner (Tr. 40, 44, 45).
Recommendation Based upon the actions of Mr. Stevens in exposing fellow officers to danger by identifying them as narcotics agents, it is recommended that the certification of Mr. Stevens by revoked. DONE AND ORDERED this 7th day of July 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July 1986.
Findings Of Fact From August 15, 1967, until his retirement on April 1, 1991, Jackson continued to serve as a game management specialist and a laboratory technician (Petitioner's Exhibit No. 9). As part of his duties, Mr. Jackson would perform controlled burns and post wildlife areas. However, Col. Robert Brantly, the Executive Director of the Commission since 1977 and an employee of the Commission since 1957, stated that those duties were not law enforcement duties and were commonly done by biologists and other non-law enforcement personnel. James A. Carpenter testified that Mr. Jackson worked on controlled hunts and was responsible for the check stations. However, the Commission hired civilians to perform that job, and Col. Brantly stated that the operation of a check station was not a law enforcement function. Mr. Jackson's Commission ID card contained the statement as contained in the Recommended Order, Findings of Fact No. 9. The ID card shows that Mr. Jackson was an "employee" of the Commission and not a "law enforcement Officer". Col. Brantly, was and is a certified law enforcement officer, testified that he had two (2) identification cards (Respondent's Composite Exhibit 2). The first card stated as follows: This card identifies: Robert M. Brantly as a Certified Florida Law Enforcement Officer who has complied with Section 943.14(1) (2), Florida Statutes, and Section 11B-7, relating to Standards and Training Col. Brantly's second ID card contained the following statement: Certificate of Appointment Pursuant to Section 372.07 Florida Statutes State of Florida at Large Be it known that Colonel Robert M. Brantly is a regularly constituted officer of the Florida Game and Fresh Water Fish Commission with full arrest powers to bear arms and to execute and fulfill the duties of said office. This appointment is in full effect until revoked. Dated this 1st day of March, 1990 Col. Brantly's ID card states he is an "officer" with full police powers while the ID cards of Jackson and Carlton Chappel, a biologist employed by the Commission, state that they are "employees" with full authority to enforce the laws relating to protection of the environment and wildlife resources. In fact, the ID cards of Mr. Jackson and Mr. Chappel are identical. (Compare Petitioner's Exhibit No. 7 with Respondent's Exhibit No. 6) Col. Robert Brantly, Executive Director of the Commission, testified concerning Mr. Jackson's claim. Col. Brantly began his career with the Commission in 1957 as a wildlife officer, became the Deputy Director in 1974 and Director in 1977. He has been and is currently a law enforcement officer and has had special risk membership in FRS. He stated that Mr. Jackson and several others classified as game management specialists had been given law enforcement powers in the mid-1960's and had certain limited duties with respect to enforcement of the state fish and game laws. When the Police Standards Commission was established in 1972, Mr. Jackson and the others were "grandfathered" by Police Standards as law enforcement officers. He testified that the Commission had two (2) classes of law enforcement officers in the 1960's and 1970's. Wildlife officers were full time law enforcement officers whose primary duties were law enforcement. Game management specialists were not considered to be law enforcement officers and had no duties in law enforcement. As an exception to that rule were Mr. Jackson and some other game management specialists who had been "grandfathered" in as law enforcement officers by the Police Standards Commission in 1972. These individuals had law enforcement authority but were considered by the Commission to be part-time law enforcement officers. Col. Brantly stated that law enforcement was not a part of their primary or essential duties. The amount of law enforcement that each of the game management specialists performed was up to each individual, but law enforcement was not a duty required of any of them. For example, one of the above specialists could perform no law enforcement activities if he did not want to. Col. Brantly testified that controlled burning was a wildlife management practice and not a law enforcement activity. He stated that the operation of hunt check stations was not a law enforcement activity, and the check stations were manned by citizens of the area. Likewise, posting of the management areas was not a law enforcement activity. Jackson introduced Exhibit No. 10 from the Commission clarifying the Police Standards Board ruling. Field personnel other than those in the Law Enforcement Bureau were "auxiliary officers" who were to call a wildlife officer to the scene of the violation for the arrest, if possible. Petitioner's Exhibit No. 11 makes it even clearer and also explains the policy and the attachment thereto. The attachment, Administrative Directive No. 25, clearly states that "(w)ildlife management duties will remain the first priority job for Division personnel", with clear guidelines for open and closed hunting seasons. The work week was 40 hours with no deviation permitted. Thus, the primary duty of Jackson was game management and not law enforcement. In September, 1979, a number of problems concerning the law enforcement powers of the game management specialists forced Col. Brantly as the agency head to remove the certification (law enforcement powers) from the game management specialists with such power such as Mr. Jackson. The removal of the certification was effective September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling). In Petitioner's Exhibit No. 14, the memorandum from Col. Brantly of September 27, 1979, he made it abundantly clear that the wildlife (game) management specialists were part-time law enforcement personnel. Toby Harris, the personnel officer for the Commission since December, 1979, also testified on both State and Commission personnel practices. He had previous service with the Pay and Classification Section of the Department of Administration and had worked in pay and classification for a state agency for 25 years. He was admitted as an expert in the area of state pay and personnel classification. Mr. Harris stated that at the time Jackson's position questionnaires or descriptions were prepared, it was a requirement that the employee himself prepare the section on "duties and responsibilities" and assign the percentages of time on the form. These forms were not mass produced by the agency but were individually crafted for each job and for each employee. Mr. Harris stated quite emphatically that the position description is (and was for the period in question) the most important document in a state employee's personnel file. It is only on the basis of that position description that the employee knew what his duties were and knew the criteria upon which he would be evaluated. He identified the letter of October 10, 1975, from Brantley Goodson, Director, Division of Law Enforcement, concerning Jackson's status as a grandfathered law enforcement officer in a part-time position. Harris also stated that the evaluations for Jackson up to the early 1970's were above average and that after that date, they were average. The Florida Department of Law Enforcement, Police Standards Commission, kept the files for the Police Standards Commission for all state agencies with law enforcement officers. The records showed whether or not a law enforcement officer was considered full-time, part-time or an auxiliary officer. According to the records of the Commission , Mr. Jackson was considered a full- time law enforcement officer from March 1, 1965, until August 15, 1967, and a part-time law enforcement officer from August 15, 1967, until September 27, 1979, when he was removed from any law enforcement activities by the Commission. Carlton Chappel, an employee of the Commission, testified that in the late 1960's and during the 1970's, he and all field personnel of the Commission, including game management specialists, were issued the same uniforms, badges and identification cards as wildlife officers. On an "as needed basis", the field personnel would be assigned to field duty and had the power to make arrests and enforce the game and fish laws of the State; however, during this time, he did not consider himself to be a law enforcement officer and never had applied for such status. His identification card was identical to the ID card of Mr. Jackson. He further stated that all game management specialists had to prepare work plans for each management area to explain the work that was to be done during the upcoming fiscal year. These work plans included both State and federal projects. (Respondent's Exhibit No. 7) The work plans for the fiscal years 1969-70 and 1970-71 for Mr. Jackson were introduced (Respondent's Exhibit No. 7) and show for FY 1969-70 that Mr. Jackson spent his time in the following projects: PROJECT NO. OF PAY PERIODS Wildlife Research Project 2 No. W-48-4 No. W-35 Mgt. Area Develop. 18 Apalachee Mgt. Area 10 Robert Brent Mgt. Area 4 Point Washington Mgt. Area 2 The work plans for the 1970-71 fiscal year show that Mr. Jackson spent his time on the following projects: PROJECT NO. OF PAY PERIODS Fed. Statistical Harvest & Inventory 1 Fed. Statewide Mgt. Area Development 10 State Hunts 8 State-General Game Management 7 TOTAL PAY PERIODS 26 SPECIFIC PROJECTS NO. OF PAY PERIODS Wildlife Inventory, Harvest & Economic Survey (Project No. W-33-21) 1 Development and Operations (Project No. W-35-20) 10 State-Apalachee Wildlife Mgt. Area 10 Carolyn McGlamery, an employee of the Division, testified that Jackson had transferred from SCOERS to the FRS during the initial transfer period effective December 1, 1970. She further testified about the statutes and the various changes over the years and the administrative rules that concerned high hazard membership under SCOERS and then special risk membership under FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for high hazard or special risk membership in either SCORES or FRS. DONE and ENTERED this 31st day of March, 1992, at Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of April 1992.
