The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. him. If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.) The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week. Included in the report is the number of written warnings and faulty equipment notices issued by the trooper. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices: Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices." Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
The Issue Whether the involuntary transfer of Trooper Fred T. Wimberly from Troop "A" in Pensacola, Escambia County, Florida to Troop "E" in Tavernier, Monroe County, Florida was a transfer for the benefit and convenience of the state.
Findings Of Fact Notice of hearing and objections to these proceedings, including the manner of the preservation of the record, were waived by the parties. This Hearing Officer and the Career Service Commission have jurisdiction over the parties and the subject matter of this action. Florida Highway Patrol personnel rules and regulations General Order number 43 and Career Service Commission rules and regulations Chapter 22A-09(c) provide for Career Service hearings on involuntary transfers. Fred T. Wimberly, Petitioner in this cause, is a Career Service Employee of the Department of Highway Safety and Motor Vehicles, Division of the Florida Highway Patrol. He was sent a notice of his transfer by certified mail dated January 7, 1976. By Order of the Honorable Ernest E. Mason, Judge of the Circuit Court, Escambia County, said transfer as been restrained until April 15, 1976. 5, Seventy trooper positions allocated to the Florida Highway Patrol were not filled during the last fiscal year because of insufficient funds and this information was circulated by letter from Mr. Ralph Davis, Executive Director, on May 23, 1975. Col. J. E. Beach, Director of the Florida Highway Patrol by memorandum July 23, 1975, informed all Florida Highway Patrol troops: "We feel it only fair that all troops share the burden rather than a few carry the entire load" and informed the troopers that the Department had decided that each troop run 7.4 as a vacancy ratio. Troop "A" in Pensacola, Florida was to have seven (7) vacancies and Troop "E" was to have eleven (11) vacancies. On February 1, 1976, the time of the transfer of the Petitioner, Troop "A" in Pensacola had three (3) more troopers than allowed under the readjustment total of minus 7. Troop "E" had fourteen (14) less troopers beyond those readjustment figures of minus 11. Thus, Troop "A", in West Florida, had four (4) vacancies and Troop "E" in Broward, Dade and Monroe Counties had twenty-five (25) vacancies. The memorandum withheld voluntary transfers until the required ratio should be achieved. At the time of a needed involuntary transfer the long standing policy of the Florida Highway Patrol, established to help keep employees more satisfied and to retain experienced troopers, has been to consider the following factors: The troop of least need Seniority Marriage factor Wife's employment Number of children Number of school children Other considerations (a) It was determined by the Director of the Florida Highway Patrol that a trooper was needed in Tavernier, Florida, as an increment to Troop E. This determination was based on population need and road conditions. It was determined that Troop A was the troop statewide which could best accommodate itself to losing a trooper. The list of troopers was examined insofar as seniority was concerned and it was found that approximately fourteen (14) troopers had less seniority than Petitioner and therefore each trooper was examined, consistent with established policy, as to marriage status, children living with trooper, school age children living with trooper and wife's employment. It was found that two troopers, Petitioner and Trooper Pembroke Burrows, III, were most eligible for involuntary transfer insofar as these human factors were concerned both being single men with the approximate same seniority. It was decided that Trooper Burrows remain in Troop "A" since he is the only black trooper in the area, the other eleven (11) black troopers being located in the central and southern part of the state. It therefore appeared to the director of the Florida Highway Patrol that Trooper F.T. Wimberly should be chosen to fill the vacancy in Troop "A" and he was so notified of his transfer to be effective February 1, 1976. Said transfer was restrained until after a public hearing and until the Order of the Career Service Commission or April 15, 1976. Petitioner contends: That the transfer was arbitrary and disciplinary in nature and the involuntary transfer was the result of actions in his personal life that were of no concern to the Florida Highway Patrol; that if the transfer was disciplinary it should have been so designated. That the fact of his divorce and the living arrangements he made as to room and board in the home of a woman and her two sons was under investigation by the Florida Highway Patrol prior to the involuntary transfer. That the transfer was made in total disregard to his job performance, his career status and his job seniority. Respondent contends: That the involuntary transfer was for the benefit and convenience of the state and that it followed a long established policy in transferring Petitioner to a needed area. That there were several other involuntary transfers as a result of the shortage of troopers in the state, particularly the southern part of Florida, and that there must be more involuntary transfers. That each trooper signs a statement as a part of a job application which reads "I fully understand that I may be stationed anywhere in the State of Florida and may be transferred at the convenience of the department." That the oath taken by Trooper Wimberly states that "I will render strict obedience to my superior in the Florida Highway Patrol and observe and abide by all orders and regulations prescribed by them for the government and administration of said Patrol." That the rules, regulations and policy of the Florida Highway Patrol were followed in the involuntary transfer of Petitioner and the transfer is to a place of great need and in fact is for the benefit and convenience of the state. That had the transfer been disciplinary in nature the result would have been suspension or dismissal. The Hearing Officer finds: The Florida Highway Patrol has presented substantial evidence that there is a need for a transfer to Troop "E" and that Troop "A" is a logical troop from which to withdraw a trooper and that Petitioner is not the only trooper in the state being transferred to fill the southern Florida need. The Petitioner signed a statement upon his application for employment that he understood that he might be transferred for the benefit and convenience of the state. The Florida Highway Patrol followed the established rules, regulations and policies in the involuntary transfer of Petitioner. That there were two troopers in the area who were most eligible to suffer an involuntary transfer but the reason for the determination to transfer Petitioner rather than Trooper Burrows is a valid reason. That in the field of law enforcement and for the protection of the people in the state there is a need for the Florida Highway Patrol to transfer troopers in an expeditious manner but with due regard to the individual rights of employees. That the evidence shows the human considerations were considered before Petitioner was selected to be transferred. That a determination as to whether the personal conduct of Petitioner was conduct unbecoming a police officer is not necessary for the determination of the issue.
Findings Of Fact At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing. When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda. Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit. In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance. With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car. During the chase Vayda had no information to lead him to believe suspect was other than a speeder. As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol. Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977. Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. H. Turner is a Highway Patrol Officer II with the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, having been employed since 1977. By memorandum dated August 10, 1982, to Troop Commanders and Florida Highway Patrol Staff, the Acting Director of the Florida Highway Patrol, Roger C. Collar, gave the following instructions: Effective August 20, 1982, all off-duty employment, including self-employment, shall be reported by all uniformed personnel on a weekly basis to coincide with the weekly report of daily activity. The first reporting period will be August 20-26, 1982, and the report shall be submitted each week along with the trooper's weekly report of daily activity. The attached sample reporting form will be used until permanent forms are developed. The sample reporting form attached to the memorandum required personnel to list the starting and ending time of their "off-duty employment" on a daily basis, the number of hours worked and the Florida Highway Patrol vehicle miles. At the bottom of the form is a signature line, above which is written I certify this is an accurate report of all off-duty employment (including self- employment) worked during the reporting period. The form also requires the signature of the "immediate supervisor" after the word "reviewed." The instructions contained in this August 10, 1982 memorandum are intended to apply to all uniform members of the Florida Highway Patrol. Failure to file a weekly report of off-duty employment or the filing of an inaccurate report would subject the employee to discipline for insubordination. Article XIII of the current collective bargaining agreement between the State of Florida and the Florida Police Benevolent Association pertains to employment outside State government. The Agreement requires advance approval for out- side employment, and provides that approval will not be unreasonably withheld as long as such employment does not conflict with the employee's State employment or with the agency's procedures limiting outside employment. With regard to off-duty police employment, Article XIII provides that approval will be granted if it does not constitute a conflict of interest, does not interfere with the employee's primary duties, is within the employee's jurisdiction and scope of employment, and as long as all mileage placed on a State automobile is paid for by the employee at the statutory mileage rate. General Order Number 19, adopted by reference in Rule 15B-11.03, Florida Administrative Code, contains provisions relating to prohibited acts which may constitute a conflict of interest, including, in certain instances, the acceptance of other employment or other business or professional activity. Paragraph 15 of General Order Number 19 requires a written request and authorization before an employee may accept "part-time employment outside of this Department." The request for outside part-time employment must include a statement of the nature of duties, the approximate hours of duty contemplated and the name and address of the firm. Guidelines for part-time employment are listed. Paragraph 15(b) sets forth the procedures for approval of requests to be employed or compensated by more than one State agency or to hold employment during the normal working hours for which the employee is being compensated by the Department. Paragraph 15(c) contains guidelines for "off-duty police details." Among such guidelines is that an employee may only engage in up to twenty (20) hours per week of such off-duty police details, unless the employee is on annual leave for the week in question or receives approval for work in excess of twenty (20) hours 4 per week. There are no limitations on the hours per week which an employee may devote to employment other than "off-duty police details."
