The Issue Whether Respondent committed the offenses of malicious harassment, unlawful battery (two counts), and unlawful entry of a structure (two counts) as set forth in the Administrative Complaint dated October 17, 1997. Whether Respondent has failed to maintain good moral character, and, if so, what disciplinary action should be taken against his correctional officer's certification.
Findings Of Fact Christopher Horne (Respondent), was certified by the Criminal Justice Standards and Training Commission on September 29, 1989, as a correctional officer, and was issued Correctional Certificate Number 70581. Respondent was employed by the Orange County Sheriff's Office, Department of Corrections, as a correctional officer during the period of October 1, 1990, until his termination on November 14, 1997. Patricia Johnson is currently employed with the Orange County Sheriff's Department of Corrections as a correctional officer and has been employed as such for the past twelve years. She is certified by the Criminal Justice Standards and Training Commission as a correctional officer. Johnson first met Respondent in the summer of 1993 at work. They became friends and eventually began dating each other in a boyfriend-girlfriend relationship. This relationship continued for approximately two and a half years, until Johnson made the decision to end it. Johnson told Respondent on New Year's Eve 1995 that their relationship was over. Johnson began dating another man. When Respondent found out that she was dating someone else, he began calling her repeatedly at work and at home. Respondent continued to harass Johnson by calling her late at night and by driving repeatedly past her home at night. This behavior began in January 1996 and continued through August 1996. The Respondent used abusive language when speaking with Johnson. He threatened harm to her date, if he found her with someone. Johnson was afraid of Respondent and was afraid that he might harm her. On July 21, 1996, Respondent went to Johnson's home unannounced and knocked on her door. When Johnson opened the door and saw who it was, she told Respondent to leave. He did not; instead he pushed his way into her home, physically struggled with her, and eventually pushed her onto her bed. Respondent pinned her down with his knees and threatened her. Johnson repeatedly told him to leave her home. Respondent eventually left the house. Johnson reported Respondent's actions to the police. They documented the incident in a report. She told the police that she did not want to press charges against Respondent, but did want someone to talk to him about his actions. The police contacted Respondent and discussed the incident with him, but did not arrest him. On November 10, 1996, at approximately 3:30 a.m., Johnson received a phone call at her house from a person she believed to be her brother. The person told her that he had forgot his keys and asked to be let into the house. A short time later, there was a knock at the door. When Johnson opened the door, Respondent was standing there. He said, "Bitch let me in" and proceeded to push his way into her home. He then grabbed her hair and hit her head against the wall several times. He continued to pull her hair and push her up against the wall. She begged him to leave and told him to stop hitting her. She broke free and ran to her brother's room and started banging on the door. Her bother, Bobby Hunter, came out. Johnson told him that she wanted Respondent out of her house. Her brother asked Respondent to leave. Eventually, Respondent did leave without further physical confrontation. Johnson reported the incident to the police. After investigating the incident, the police completed a report and arrested the Respondent. Respondent was charged with burglary, battery, and aggravated stalking. Respondent pled in circuit court to the misdemeanor charge of trespass to an occupied dwelling and was placed on one- year probation. Respondent was suspended for 10 days from his employment with the Orange County Sheriff's Department of Corrections as a result of his actions involving Johnson. He was later terminated from his employment on November 14, 1997. Respondent is currently not employed as a correctional officer. Respondent's description of the events from January 1996 through August 1996 and on the night of November 10, 1996 is not credible. On December 11, 1992, the Criminal Justice Standards and Training Commission issued an official Letter of Guidance to the Respondent. This prior action by the Commission is an aggravating factor in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission find Respondent guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and it is further RECOMMENDED that Respondent's certification be revoked. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 June, 1999. COPIES FURNISHED: James D. Martin Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Warren Turner, Esquire 609 East Pine Street Orlando, Florida 32802 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of June, 2019.
The Issue The issue is whether Respondent continues to be qualified for certification as a correctional officer.
Findings Of Fact The Commission, among its other duties, is empowered to certify, and revoke the certification of, officers, instructors, including agency in-service training instructors, and criminal justice training schools. Mr. Paige was certified by the Commission and was issued Correctional Certificate No. 45658 on July 1, 1981. He has continued to be certified since that time. On November 23, 2004, Mr. Paige was riding in a truck with Mr. Givens. The truck was traveling south on County Road 229, in Baker County, at about 2:20 in the morning and the truck's tag light was not functioning. Cpl. Lagle was patrolling on the same road at the same time and observed the truck and noted that the tag light was not functioning. Cpl. Lagle stopped the truck. After the truck pulled to the side of the road, Cpl. Lagle approached the driver's side of the vehicle. The window was down. As Cpl. Lagle requested the driver's license and the passenger's identification, he smelled marijuana smoke. Cpl. Lagle identified the driver as Mr. Givens. The passenger, Mr. Paige, did not provide identification as requested. Both Mr. Givens and Mr. Paige appeared nervous and Cpl. Lagle observed Mr. Paige trying to hide something. Cpl. Lagle asked Mr. Givens to exit the truck and to move to the front of the truck. Mr. Givens did as instructed. While at the front of the truck Cpl. Lagle asked Mr. Givens if they had drugs in the truck. He said no, but commented that they "had just smoked some." Mr. Paige was in the truck when this conversation occurred. Subsequently Cpl. Lagle walked to the passenger side of the truck and opened the door. A Budweiser beer can fell on the ground as the door was opened. Cpl. Lagle asked Mr. Paige to exit the vehicle. During a pat down search, Cpl. Lagle found a plastic bag of green vegetable matter which he believed was marijuana, hidden in the waistband of Mr. Paige's trousers. He handcuffed Mr. Paige and placed him in his patrol car. Cpl. Lagle performed a field test on the green vegetable material and it was positive for cannabis, which is the formal name for marijuana. He informed Mr. Paige that he was under arrest. Mr. Paige told Cpl. Lagle that he was a correctional officer and that he had "information." Cpl. Lagle transported Mr. Paige to the Baker County Sheriff's Office Annex so that he could discuss his "information" with narcotics officers of the Baker County Sheriff's Office. Upon arrival at the Annex he was searched and seated in an interview room. He was interviewed by Narcotics Investigator David Bryant. After the interview, Mr. Paige stood up and a second bag of green vegetable matter fell from his pant leg. Cpl. Lagle picked it up and the two officers together determined that this substance was also marijuana. Mr. Paige told the officers that the marijuana belonged to Mr. Givens. The marijuana that was seized weighed less than 20 grams, so Mr. Paige was charged with the misdemeanor of possessing less than 20 grams of marijuana. He subsequently pleaded nolo contendere to the charged offense. It is found by clear and convincing evidence that Mr. Paige possessed marijuana, in an amount less than 20 grams, on or about February 23, 2006.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an order finding that Roosevelt Paige lacks moral character as defined by the commission and revoking Correctional Certificate No. 45658, which is currently held by Roosevelt Paige. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006. COPIES FURNISHED: Roosevelt Paige Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 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
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 12, 2009, and the Amended Order of Penalty Assessment issued March 30, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-075-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On March 12, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-075-1A to REGIONAL CONCRETE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein REGIONAL CONCRETE, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 12, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on REGIONAL CONCRETE, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 30, 2009, the Department issued an Amended Order of Penalty Assessment to REGIONAL CONCRETE, IN C. in Case No. 09-075-1A. The Amended Order of Penalty Assessment assessed a total penalty of $122,034.51 against REGIONAL CONCRETE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein REGIONAL CONCRETE, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty- one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On April 1, 2009, the Amended Order of Penalty Assessment was served by certified mail on REGIONAL CONCRETE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 20, 2009, REGIONAL CONCRETE, INC. filed a petition requesting a formal administrative hearing with the Department. The Department forwarded the petition to the Division of Administrative Hearings on June 8, 2009, and the matter was assigned DOAH Case No. 09-3046. 6. On July 24, 2009, the Department served its discovery requests on REGIONAL CONCRETE, INC., which included interrogatories, requests for admissions, and requests for production. Responses or objections to the discovery were required to be served on the Department within thirty days. REGIONAL CONCRETE, INC. failed to respond to the discovery requests within thirty days. 7. On August 28, 2009, the Department filed a Motion to Compel Discovery. The Honorable P. Michael Ruff, the Administrative Law Judge, entered an Order on Motion to Compel on September 15, 2009, which required REGIONAL CONCRETE, INC. to serve responses to the requests for admission, interrogatories, and requests for production no later than September 18, 2009. 8. On September 25, 2009, the parties filed a Joint Response to Order Granting Continuance wherein the parties agreed REGIONAL CONCRETE, INC. would submit to the Department responses to the discovery requests by October 23, 2009. Since conferring on the Joint Response to Order Granting Continuance, the Department has made several unsuccessful attempts to reach REGIONAL CONCRETE, INC. 9. On November 3, 2009, the Department filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes, with the Division of Administrative Hearings after REGIONAL CONCRETE, INC. failed to respond to the discovery request by. October 23, 2009. A hearing on the motion was held on November 20, 2009, during which several’ unsuccessful attempts were made to contact REGIONAL CONCRETE, INC. The Department also attempted to contact REGIONAL CONCRETE, INC. by telephone after the hearing on the motion, but was unsuccessful. After the hearing on the motion, the Honorable James H. Peterson, III, the Administrative Law Judge, entered an Order to Show Cause which ordered REGIONAL CONCRETE, INC. to show good cause within seven days as to why the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(@, Florida Statutes, should not be granted. A copy of the Order to Show Cause is attached hereto as “Exhibit C” and incorporated herein by reference. 10. On December 3, 2009, the Honorable James H. Peterson, II, entered an Order Closing File deeming the admissions contained in the discovery requests admitted. The Order Closing File further concluded that there were no disputed issues of material fact and relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue The Issue for consideration herein was whether the Respondent's certification as a corrections officer in Florida should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Commission, was the state agency responsible for the certification of law enforcement and corrections officers in this state, and the Respondent, Richard J. Havey was a certified law enforcement officer employed by the Indian River County Sheriff's Department. On September 5, 1990, Sgt. Alfonzio Washington, of the St. Lucie County Sheriff's Office, responded to a disturbance call at a residence on Hummingbird Lane where, reportedly, an individual was threatening to kill himself. When he arrived at the residence, Sgt. Washington saw the Respondent engaged in conversation with two sheriff's deputies. Respondent was ordering the deputies off his property. At this point, individuals identified as respondent's parents asked the deputies to leave, indicating that if they did, the Respondent would calm down. After some further discussion, Respondent did, shortly thereafter, calm down. As a courtesy to the Respondent's status as a law enforcement officer, he was not arrested even though he appeared to be under the influence of alcohol. Sgt. Washington was led to believe that at the time, the Respondent was having marital problems and was upset, and in cases of that nature, it is Sheriff's Department policy to help officers with alcohol or stress problems straighten out. He thereupon directed the other deputies to leave the area and they did. Somewhat later that same evening, Detective Robert Gregg went to the Respondent's residence in response to another disturbance call. He had been told of the previous disturbance there and was advised that weapons were present. When he arrived, shortly after Deputy Walton got there, he spoke with the complainant, Mrs. Barstow, Respondent's mother at the door. As she approached, the Respondent stepped in front of her and told the officers they had no warrant and to get off his property. The officers, however, said they were there to speak with Mrs. Barstow who was beckoning them into the house. Just as Lt. Miller came up to the door and started in, the Respondent, who was loud and belligerent, shoved him when Miller asked Respondent to move so they could speak with his mother. At this, the other officers attempted to handcuff the Respondent and when he resisted they wrestled him to the ground where they placed cuffs on his wrists behind his back. All during this time, Respondent was saying that they shouldn't have done that because he was one of them. As a result of this scuffle, Respondent sustained an abrasion to his forehead and the officers took him to Longwood Hospital for treatment. In the car, during the ride there, Respondent was still angry and kept hitting his head against the plexiglass screen between the front and rear seats. He also made some unspecified threats. After being treated for his injuries and released, Respondent was then arrested for battery on a law enforcement officer; for disorderly conduct, and for intoxication. In Gregg's opinion, based on the many drunks he has seen over his career, Respondent was intoxicated. Lt. Miller basically confirms the testimony of Detective Gregg. When he arrived at Respondent's home, the other officers were already there and he could hear the Respondent yelling. Respondent claimed he didn't call the police and because they didn't have a warrant they should leave his property. Miller saw Mrs. Barstow beckon to Deputy Walton to come into the house. As she started to enter, Respondent put up his hand to bar her and Miller told him they were going to come in to talk to Mrs. Barstow. At this, Respondent pushed out at Miller, forcing him up against the wall to the right of the door when looking out, and, reportedly took a swing at him. No other evidence was presented to confirm the attempt to strike and it is found that considered in its worst light, the evidence shows only a push of Miller by Respondent. To be sure, Miller and all the other officers were in uniform and on duty. Miller and all the other law enforcement personnel who testified indicate that the law enforcement profession is stressful - especially the job of a corrections officer such as that held by Respondent due to the concentration of difficult people with whom the officer must regularly deal. Miller supervises more than 30 individuals and over the years, has evaluated a lot of officers. Alcohol problems are not at all uncommon nor are marital problems, but most officers can cope with them and have been able to resolve them one way or another to resume productive law enforcement careers. In his opinion, a police department has an obligation to assist a troubled officer to alleviate his or her alcohol and other problems in a joint effort by both parties. If Respondent has completed a rehabilitation program and does not now drink, this would weigh in his favor. The same would be true regarding his marital problems, especially if the initiative came from him. His past record should also be taken into account if it is good. This one incident, under the circumstances here regarding Respondent's personal stress and alcohol problem, should not prevent him from continuing in law enforcement, Miller believes. Lt. Phil Redstone, the Commander of the Indian River County Sheriff's Department's Internal Affairs Division and an expert in toxicology and the effect of alcohol on the body and in officer evaluation reviewed the Respondent's case, interviewing not only Havey but also his wife and parents. He determined that before this incident, Havey had been drinking heavily because his wife had told him she was leaving him and taking the children. Added to this was the pressure of having just built a new home and the stress he was experiencing at work and as a result, he threatened to kill himself. Havey thought his wife had called the police and when they first came, the meeting was congenial. Then Respondent's parents came and he became more upset, breaking a few items at the house. When the second set of deputies came, he was by then quite upset and admitted to ordering them off his property and to obstructing their entrance to his house in response to his mother's invitation. However, Havey denied either swinging at or shoving Lt. Miller or making any threats to the officers during their transport of him to the hospital. Redstone found, as a result of his investigation, that Respondent's conduct was contrary to Department policy and the case was sent to the Department's Disciplinary Review Board for a hearing. This Board, made up of 5 Sheriff's Department employees, after hearing the evidence against the Respondent, found he did not commit a battery upon a law enforcement officer and did not resist apprehension with force. It found, however, that he was guilty of misconduct and as a result, Respondent was discharged from employment. In his letter of discharge, the Sheriff noted that if Respondent were to be found not guilty of the charges, he would be eligible for rehire. After the incident, Respondent was charged with battery on a law enforcement officer and resisting arrest with violence. He plead nolo contendere to a lesser offense of simple battery and resisting without violence and was placed on probation with adjudication of guilt withheld. He successfully completed all the terms of his probation and was released early. Redstone also found that up to the time of this incident, and since, Respondent's conduct has been exemplary. He completed the terms of the probation imposed upon him by the court and has had no other problems. He has not been employed by the Indian River County Sheriff for the past two years, but, since he has completed probation properly, he could be rehired. Redstone believes Respondent is of good character and has a good work record and that the instant situation was an isolated matter totally out of character. In fact, it was the Sheriff's Department which suggested to Respondent that he seek expungement of and sealing of court records. Taken together, Lt. Redstone concluded Respondent is fit to be a police officer now. Respondent denies having either punched or swung at any officer. He has too much respect for the profession. He admits to being very vocal and to using obscene language, but on the night in question, he was very much under the influence of alcohol and was in a rage and out of control. Nonetheless, he was not so intoxicated he can't remember what happened. This was an isolated incident. His drinking had been building up for about two months prior to this incident. He admits Officer Walton was trying to get past him into the house and he told the officers to get out because he didn't want them there. He claims, however, he kept his hands at his side because he knew if he raised them it would be taken as a hostile act. When he realized the officers would not leave, he turned to go back into the house and grabbed for the door handle. Just as he grabbed it, he found he couldn't breathe and was hit hard from behind. He fell to the ground and hit his head on the concrete. He admits to trying to cover his face but claims he did not intentionally resist being handcuffed. Respondent claims that once he was handcuffed, he walked voluntarily to the patrol car and got in. He further claims he was in the car for 30 minutes without being told he was under arrest for anything. The day after his arrest, after being incarcerated for about 6 hours, he was released and driven home by his bondsman. He voluntarily signed himself up for the 30 day alcohol program and is glad he did. He now has his drinking under control and believes he can handle his job and the other stress points now. He wants to stay in law enforcement. Mrs. Barstow describes her son as a very kind, good hearted, and reliable man who only started to have alcohol problems after close to 10 years of good service with the St. Lucie and Indian River County Sheriffs' Departments. On the night in question she was at her son's house because she had received a call that he was despondent. She knew he had been drinking and was afraid he might do something foolish. She was upset at the way the incident was allowed to progress. She had called the police to get help for her son and before she knew it, he was on the ground and injured. In conjunction with Respondent's wife, Mrs. Barstow had Respondent committed under the provision of the Baker Act to insure he got the help he needed. He spent 30 days in Harbor Shores, a rehabilitative center, and since his release has stopped drinking and attends Alcoholics Anonymous meetings once or twice a week. Respondent is still married and has 2 children. Their relationship is considered good. Respondent is known to have high moral values and is an honest individual. He liked being a law enforcement officer though it took its toll on him. The birth of his children so close to each other along with the fact that his wife works in law enforcement also created pressure. His being out of work, though he has aggressively sought other employment, has placed a financial strain on the family. Nonetheless, he has not resumed his drinking. Respondent entered his plea of nolo contendere to the charges against him because he was advised it was in his best interests to do so. His plea was based on the alleged representation that if he was convicted of no more than a misdemeanor, he'd be rehired. Had he known he would not be rehired, he would have demanded trial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered placing Respondent on probationary status for a period of one year subject to such terms and conditions as the Commission may impose. RECOMMENDED this 25th day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the word "intentionally". Accepted. - 25. Accepted. 26. & 27. Accepted and incorporated herein. & 29. Accepted and incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. Accepted and incorporated but a restatement of the evidence. - 17. All accepted and incorporated but noted to be a re- statement of the testimony. COPIES FURNISHED: Dawn Pompey, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Michael Spotts, Esquire 2400 South Federal Highway Stuart, Florida 34994 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 14898 Tallahassee, Florida 32302
Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, 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 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission 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
