87-002143 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Gerald T. Ping Status: Closed Recommended Order on Friday, December 18, 1987.

Summary: Acceptance of unauthorized compensation and bad moral character not proven; in absence of specific rule against borrowing from inmates, no discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION , )

)

Petitioner , )

)

vs. ) CASE NO. 87-2143

)

GERALD T. PING , )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 28, 1987,

in West Palm Beach, Florida, before Ella Jane P. Davis, the duly assigned

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Joseph S. White, Esquire

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent : Gerald T. Ping, pro se

6690 Southwest 88th Trail

Okeechobee, Florida 34574

ISSUE

Whether Respondent's certification as a correctional officer may be revoked

or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for

failure to maintain the qualifications set out in Section 943.13(7), Florida

Statutes, requiring such officer to have good moral character.

At formal hearing, Petitioner presented the oral testimony of Benny Morse

Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one

exhibit admitted in evidence. Respondent presented the oral testimony of his

wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer

Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter,

Petitioner filed the transcript and submitted proposed findings of fact and

conclusions of law within the extension of time granted by order. Petitioner's

proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida

Statutes, in the appendix to this Recommended Order. Respondent submitted no

post-hearing proposals.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and

Training Commission on November 4, 1974, and was issued certificate number

CORR/C-0148.

2. Respondent was first employed by the Florida Department of Corrections

on November 4, 1974, as a correctional officer at the Hendry Correctional

Institution. At all times material to the issues in the case, the Respondent

was so employed and held the rank of lieutenant.

3. During early August of 1984, Benny Platt was incarcerated at the Hendry

Correctional Institution as an inmate. Platt was acquainted with Respondent

Ping, who approached Platt during this period of time requesting a $10,000 loan

to defray Respondent's wife's doctors' bills.

4. Another inmate at the prison, Mark Krebs, was a friend of Platt. On

August 10, 1984, Krebs was being held in solitary confinement as a punishment

for Krebs' violation of prison rules by drinking and fighting. Platt was

interested in helping Krebs to be released from solitary confinement so that

Krebs would be eligible for work release.

5. Platt approached Lieutenant Coburn, another correctional officer at

Hendry, to obtain some relief for Krebs after Krebs had been in solitary

confinement for 2 days. It was common practice for inmates to approach

Respondent Ping or any other lieutenant for these types of requests, however, at

the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was

either on suspension or on some variety of leave due to Ping's two previous

heart attacks.

6. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and

knew Respondent Ping by virtue of their common employment. Respondent had been

Lt. Coburn's superior for some period of time in the past.

7. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs,

Lt. Coburn said he did not know if he could help but he would look into the

situation. Lt. Coburn then asked Platt what Platt could do for him in return.

Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn

replied, "For what." Platt told him it was for trying to borrow money from

inmates. (TR 25-26)

8. On August 11, 1984, as part of a planned investigative technique to

verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the

Respondent at the Respondent's home.

9. The Respondent accepted Platt's collect telephone call, and with

Platt's permission, Lt. Coburn taped their conversation. Platt told the

Respondent that he could not get the Respondent $10,000, but could get $5,000 to

$6,000 at low interest with no problems. The Respondent replied that this

amount would do. Platt then asked about Krebs' release from solitary

confinement. The Respondent stated that he did not know what he could do, but

as soon as he got back to Hendry, he would see what he could do. This is

basically the reply made by Lt. Coburn when Platt had approached him earlier.

10. On August 14, 1984, Respondent returned to work at Hendry. That day,

Platt, under instructions from Lt. Coburn, approached Respondent at the prison

and engaged him in conversation, which Lt. Coburn again taped with Platt's

permission.

11. Platt told Respondent Ping that he had arranged to get a $5,000 loan

for Ping and told Ping to meet with Platt's niece at a place in La Belle,

Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as

his niece's name.

12. On August 17, 1984, Florida Department of Corrections Inspector Diane

Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his

home. By arrangement, the two met on August 20, 1984, at the Crossroads

Restaurant a/k/a White's Restaurant in La Belle, Florida.

13. Prior to Respondent's arrival at the restaurant on August 20, 1984,

Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the

purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald

Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed

recording and receiving equipment in the restaurant's supply room in order to be

able to overhear and record the transmissions of a microphone concealed on

Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed

themselves in the kitchen where they had a clear view of the table designated

for the money transaction.

14. At the appointed time and date, Inspector Enfinger, masquerading as

Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table

and he asked her to join him and his wife and a female dinner guest who were

with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to

get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this

suggestion as a ruse to see if a promissory note or other record of the

transaction would be required so that the Pings would know if the transaction

constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had

plausible, if not probable, reasons for their state of mind and belief that some

plot against them by Department of Corrections personnel was afoot, and

Respondent had good probable cause not to trust inmate Benny Platt's several

representations to him. Respondent Ping knew Platt's relatives were not from La

Belle. Platt had dressed unusually on August 14, 1984 so as to cover the

concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping

both by telephone and in person had followed warnings received by Mr. and Mrs.

Ping concerning attempts to oust Ping from employment due to his heart condition

and resultant excessive absences. Although the content of these warnings is

pure hearsay, the evidence of the warnings has not been accepted for the truth

of the content asserted, i.e. that there was any such plot afoot. It is

admissible and has been considered only to show the Respondent's and

Respondent's wife's state of mind.

15. Respondent Ping testified that he never intended to accept the loan

offered by Platt but that if there were loan papers to sign, he planned to

explain to "Sylvia Cox" what he had suspected about a plot before he declined

the loan, since in his view, a loan agreement would make the transaction

legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of

trying to trap him.

16. "Sylvia Cox" and the Respondent went outside to the parking area, but

since the authorities' plan was for Cox/Enfinger to remain at a specific table

inside the restaurant for her safety and for surveillance purposes, she

requested that they return inside.

17. Inspector Enfinger and the Respondent then sat at the designated

table. Cox/Enfinger told Respondent that she was unable to get all the money,

but had $1,000 with her and would get $4,000 to him later in the week. She

produced no papers, but counted out ten one-hundred dollar bills onto the center

of the table. Respondent picked up the stack of bills, holding it in both

hands, then dropped the money, said he had "changed his mind" and did not need

any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul-

Wasi came out of the kitchen and arrested Respondent for the offense of unlawful

compensation by a public official, Section 838.016, Florida Statutes.

18. There are several inferences that can be drawn from Respondent's

dropping of the money, but it is immaterial that Respondent maintains he dropped

the bills as part of his intent to unmask a "set up" and could not see the

kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt.

Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a

loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and

Respondent.

19. According to Platt, Respondent's original request for a $10,000 loan

occurred nearly two weeks before Krebs was confined. This renders it impossible

for Respondent's original loan request to have been on a quid pro quo

arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed

some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get

them done." (TR 11). Platt was clearly attempting to ingratiate himself with

Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to

secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging,

initiated the idea of releasing Krebs when Platt first phoned Respondent, but

Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement.

No witness ever directly stated that the loan was conditioned on such an

arrangement between Platt and Respondent. Platt vaguely termed it a "money

situation," but Lt. Coburn confirmed that the money transaction between Platt

and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to

Cox/Enfinger what the money was for (TR 75). Further, it strains reason that

since accommodations were made on a regular basis between corrections officers

and inmates to get other inmates out of solitary confinement, that anyone

involved in this "money situation" could have believed the real $1,000 (let

alone the promised sum of $5,000) was being paid by Platt to Respondent in

exchange for getting Krebs out of solitary confinement. Additionally, absent

any proof that Krebs would have remained in solitary confinement for what seems

an extraordinary length of time (August 9 - August 20) or that Respondent

released Krebs, or that Lt. Coburn did not release Krebs, all of the "money

situation" seems totally separate and apart from any services, illicit or

otherwise, which Respondent may have been asked by Platt to perform. Further,

Respondent's behavior, while rather extreme and based on suspicion, is

adequately explained by his state of mind. His belief that he was being "set

up" is not incredible under the foregoing facts as found.

20. On August 21, 1984, Respondent was terminated from his employment at

the Hendry Correctional Institution.

21. On January 21, 1986, the Respondent entered a plea of nolo contendere

in absentia to the charge of acceptance of unauthorized compensation pursuant to

Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of

the first degree and upon the assurance of the Court that adjudication would be

withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an

administrative penal proceeding for any recognized purpose. See Sections

90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984);

Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis,

631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and

Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977).

However, Respondent admitted the plea and waived any objections to admission of

the plea. (TR-77).

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction of the

parties and subject matter of this cause.

23. Section 943.13(7), Florida Statutes, requires that certified

correction officers,

Have a good moral character as determined

by a background investigation under

procedures established by the Commission.

Section 943.1395(5), Florida Statutes, requires:

The Commission shall revoke the

certification of any officer who is not

in compliance with the provisions of

s. 943.13(1)-(10).

24. Rule 11B-27.0011, Florida Administrative Code, which defines "good

moral character" for the purposes of obtaining and maintaining correctional

officer certification is not helpful in the instant case. After setting forth

in subsections (1)-(3) acts dealing with the use of controlled substances which

"conclusively establish" one not to be of good moral character, subsection (4)

provides:

(4) For the purpose of revocation

pursuant to Subsection 943.1395(5), F.S.,

the employing agency shall forward to the

Commission a report in accordance with

procedures established in Rule 11B-27.003

when:

(a) An officer has been found guilty of

violating Sections 790.17, 790.18,

790.24, 790.27, 796.06, 796.07, 800.02,

800.03, 812.014(2)(c), 812.016, 812.081,

817.035, 817.235, 817.39, 817.49,

817.563, 827.04(2), (3), 827.05, 828.122,

831.31(1)(b), 832.041, 832.05(2), 837.05,

837.06, 843.02, 843.13, 843.17,

847.011(1), (2), (4), 847.0125(2),

847.013(2), 847.06, 847.07, 870.01,

870.02, 876.17, 876.18, 893.13(1)(a)3.,

(1)(d)3., (1)(f), (2)(a)1., or F. S.

(b) An officer has perpetrated any act

which would constitute a felony or an

offense under subsection (2)(a) of this

rule, or committed an egregious act which

establishes that the officer is not of

good moral character.

25. Herein, Respondent was charged under Section 838.016, Florida

Statutes, which is not an enumerated statutory section within the rule and pled

nolo contendere to Section 944.37, also not an enumerated section within the

rule. A plea of nolo contendere with adjudication withheld is not a conviction,

nor does it constitute an admission of guilt. See Vinson v. State, 345 So.2d

711 (Fla. 1977), and cases cited therein at p. 713, and authorities cited supra.

26. Clearly, the underlying facts as found do not amount to a violation of

Section 944.37, Florida Statutes, which reads as follows:

Acceptance of unauthorized compensation;

penalty. -- No officer or employee of the

department shall receive, directly or

indirectly, from any prisoner or from

anyone on behalf of such prisoner, any

gift, reward, or any compensation

whatsoever for his services or supplies

other than that prescribed or authorized

by law or the department. Whoever

violates this section shall be guilty of

a misdemeanor of the first degree,

punishable as provided in s. 775.083.

27. Therefore, any determination of bad moral character must be made upon

Rule 11B-27.011, subparagraph (b): Was Respondent's act so egregious as to

constitute bad moral character?

28. Bad moral character has been defined in a variety of ways. No case

with regard to corrections officers has been cited by Petitioner nor found by

the undersigned after diligent search. A fitting definition of bad moral

character for the purposes of the present case is a definition which is not

limited by any specific statute and one which was used by the Florida Supreme

Court with regard to a bar admissions case. See, Florida Board of Bar Examiners

Re: G.W.L., 364 So.2d 454 (Fla. 1978). That definition defines bad moral

character as,

"... acts and conduct which would

cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, respect for the rights

of others and for the laws of the state

and nation."

29. Securing a loan in exchange for low interest on the basis of

friendship falls far short of exhibiting bad moral character.

30. In license revocation cases, the burden of proof of wrongdoing and of

the specific charge alleged is upon the Petitioner Agency. Revocation of a

professional license is of sufficient gravity and magnitude to warrant a

standard of proof greater than mere preponderance of the evidence. The correct

standard for revocation of a professional license is that the evidence must be

clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987);

Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1985). Under

any standard of proof, the specific charges of bad moral character have not been

proven.

31. The Respondent herein may be guilty of bad judgment and paranoia, but

there simply is not clear and convincing evidence of his bad moral character so

as to permit revocation of his certificate. Surely, for numerous logical

reasons, the agency may wish to prohibit its correctional officers from

soliciting loans from inmates. Such activity gives at least the appearance of

impropriety. Such activity may result in improper pressure being placed on

prisoners and it may permit lender- inmates to exert improper leverage over

debtor-officers, but the agency has not seen fit to prohibit this activity by a

specific rule and none of the foregoing "parade of horribles" has been proved-up

in this proceeding. In the absence of a rule prohibiting the activity proved,

neither revocation nor any lesser discipline is authorized.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered dismissing this cause as against

Respondent.

DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee,

Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143

Respondent filed no post-hearing proposals.

The following constitutes specific rulings upon Petitioner's proposed

findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes:

1. Covered in FOF 1.

2. Covered in FOF 2.

3, 4, 7. Covered in FOF 3.

5. Rejected as not supported by the greater weight of the credible

evidence as a whole as found in FOF 4.

6. Covered in FOF 4.

8. Rejected as mere recitation of testimony, as subordinate and

unnecessary, as largely not credible and as not supported by the greater weight

of the credible evidence in the facts as found.

9. Except as subordinate and unnecessary, covered in FOF 6.

10. Rejected as unnecessary.

11. Rejected as not supported by the greater weight of the credible

evidence as a whole as found in FOF 5 and 7.

12. Except as subordinate and unnecessary, covered in FOF 8.

13. Rejected as unnecessary.

14, 15, 16. Rejected as not supported by the greater weight of the

credible evidence as a whole as found in FOF 9.

17-18. Rejected as unnecessary.

19, 20, 21. Covered in FOF 10-11, and 14.

22. Rejected as unnecessary.

23, 24. Covered in FOF 12.

25. Rejected as unnecessary.

26, 27. Except as subordinate and unnecessary, covered in FOF 13.

28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14.

31. Covered in FOF 16.

32. Except as subordinate and unnecessary, covered in FOF 17.

33, 34, 35, 38 and 39. To the extent supported by the credible evidence

as a whole, covered in FOF 17.

36, 37. Rejected as largely subordinate and unnecessary and otherwise as

immaterial and as not supported by the greater weight of the credible evidence

as found in FOF 17-18.

40. Rejected as unnecessary.

41. Covered in FOF 20.

42. Except as subordinate and unnecessary, covered in FOF.

COPIES FURNISHED:

Joseph S. White, Esquire

Post Office Box 1489

Tallahassee, Florida 32302

Gerald T. Ping

6690 Southwest 88th Trail

Okeechobee, Florida 34574

Robert R. Dempsey, Executive Director

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell, Director

Criminal Justice Standards

Training Commission

Post Office Box 1489

Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION,

Petitioner,

vs. DOAH CASE NO.: 87-2143

CJSTC CASE NO. : C-0908

GERALD T. PING,

Certificate Number : CORR/C-0148

Respondent.

_________________________________/

FINAL ORDER

This above-styled matter came on for final action before the Criminal

Justice Standards and Training Commission (hereinafter referred to as the

"Commission") pursuant to Section 120.57(1)(b)(9), F.S. , at a public hearing on

April 21, 1988, in Tallahassee, Florida, for consideration of the Recommended

Order of the Hearing Officer entered herein. Respondent was not present.

Upon a complete review of the transcript of record of hearing held on

August 28, 1987, in West Palm Beach, Florida, the Report, Findings, Conclusions

and Recommendations of the Hearing Examiner dated December 18, 1987, all

exceptions filed to said items and being otherwise fully advised in the

premises, the Commission makes the following findings and conclusions:

FINDINGS OF FACT

Having reviewed the Recommended Findings of Fact (which are attached hereto

and incorporated by reference) and the exceptions filed thereto, the Commission

adopts the Hearing Officer's findings of fact except where they are contradicted

by the Petitioner's Exceptions which are attached hereto, adopted and fully

incorporated herein by reference.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law (which are attached

hereto and incorporated by reference) and the exceptions filed thereto, the

Commission adopts the Hearing Officer's conclusions of law except where they are

contradicted by the Petitioner's Exceptions which are attached hereto, adopted

and fully incorporated herein by reference.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent's Certificate, Number : CORR/C-0908, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby

notified that they may appeal this final order by filing one copy of a Notice of

Appeal with the Clerk of the agency and by filing the filing fee and one copy of

a notice of appeal with the District Court of Appeal within thirty (30) days of

the date this order is filed. This Order shall become effective upon filing with

the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 28th day of June, 1988.

CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION

_________________________

COLONEL BOBBY R. BURKETT,

CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order

has been furnished to GERALD T. PING, Post Office Box 237, Pahokee, Florida

33476, U.S. Mail on or before 5:00 P.M., this 28th day of, 1988.

cc: All Counsel of Record