89-001320 James L. Foy vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Wednesday, January 3, 1990.

Summary: Only evidence of poor morality is incident incorrectly described in letter of denial. Other evidence of good character, integrity and honesty supports certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. FOY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1320

)

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida on November 2, 1989

before Arnold H. Pollock, a Hearing Officer with the Division of Administrative

Hearings.

APPEARANCES

For the Petitioner: Gene "Hal" Johnson, Esquire

Florida Police Benevolent

Association, Inc.

300 East Brevard Street

Tallahassee, Florida 32301

For the Respondent: Joseph S. White, Esquire

Florida Department of Law

Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue for consideration herein is whether Petitioner should be granted

certification as a law enforcement officer in Florida.

PRELIMINARY STATEMENT

On February 8, 1989, the Respondent, Criminal Justice Standards and

Training Commission, (CJSTC), denied Petitioner, James L. Foy's, application for

certification as a law enforcement officer in Florida on the basis that he had

engaged in sexual intercourse with a minor female while an adult and employed

and certified as a law enforcement officer. Thereafter, on February 10, 1989,

Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes,

and by letter dated March 9, 1989, the matter was forwarded to the Division of

Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated March 21, 1989, H. O. James E. Bradwell set the

matter for hearing in Palmetto, Florida on April 21, 1989, but after several

continuances, it was ultimately set for hearing on November 2, 1989 in

Clearwater, at which time it was held as scheduled by the undersigned to whom

the matter had been transferred in the interim.

At the hearing, Petitioner testified in his own behalf and presented the

testimony of Herbert H. Van Fleet, Chief, Palmetto Police Department; Treva J.

Napier, Personnel Officer with the Hardee County Sheriff's Office; Danny D.

Motter, part time law enforcement officer and long time friend of Petitioner and

his family; Jeffry D. Huttman, Major with the Bradenton Police Department;

Father Frank M. Kirlangitis, Pastor of the Bradenton Greek Orthodox Church and

Chaplain of the Manatee County Sheriff's Department; and Ronald W. Grubbs,

former highway patrol officer and presently a banker and insurance agent.

Petitioner also introduced Petitioner's Exhibits 1 through 4.

Respondent presented the testimony of Michael B. Mayer, Captain with the

Manatee County Sheriff's Department and formerly with the Bradenton Police

Department. No Documents were presented by the Respondent, but at Respondent's

request, the undersigned agreed to take official recognition of Sections 943.13

and 943.133, Florida Statutes, and Rule 11B-27, F.A.C.

A transcript of the hearing was provided and both parties submitted

Proposed Findings of Fact which are all accepted and incorporated herein. There

is no dispute as to the facts but only whether these facts show poor moral

character.

FINDINGS OF FACT

1. In early November, 1988, the Palmetto, Florida Police Department

submitted an application for certification as a police officer for Petitioner

herein, James L. Foy, to the Criminal Justice Standards and Training Commission.

The CJSTC is the agency in Florida charged with the certification of law

enforcement personnel in this state.

2. The Affidavit of Compliance submitted with the application reflected

that "all criminal history records have been expunged under the provisions of

Section 943.058(6)(a)", Florida Statutes.

3. By letter dated February 8, 1989, the CJSTC notified Petitioner that it

was denying his application for certification because:

You knowingly engaged in sexual

intercourse with a minor female person,

after you had attained majority and while

employed and certified as a law

enforcement officer, though off duty.

4. The parties stipulated, and it is so found, that the CJSTC has not

conducted an independent background investigation of the Petitioner and relied

solely on the single incident as set forth above as establishing that the

Petitioner is not of good moral character.

5. Petitioner served as a police officer with the Bradenton Police

Department from April, 1982 to June, 1985 when he resigned. In the fall of

1984, when he was twenty-four years old, Petitioner was performing security

services, in an off duty capacity, at a high school football game in Bradenton.

After the game, Petitioner's supervisor in the police department, Corporal

Simpson, invited him to come home with him after the game for some refreshments.

Petitioner agreed, and subsequently met Simpson, Simpson's fourteen year old

daughter, and another girl at the Simpson home.

6. Shortly after going inside, Simpson excused himself and left the room

with the other girl, leaving Petitioner along with Ms. Simpson on the couch in

the living room. Almost immediately, Ms. Simpson began making sexual advances

toward Petitioner to which he was initially receptive, believing her to be

somewhat older than she was. He knew she was not 18, but did not know that sex

with someone over 15 was against the law.

7. Shortly after Ms. Simpson began sexual advances toward him, loosening

his trousers and rubbing his penis, leading to her committing fellatio on him,

Petitioner became uncomfortable with the situation, terminated the encounter,

and left the Simpson house. During the course of an investigation into an

allegation of sexual involvement of one or more Bradenton police officers with

minor females in April, 1985, Captain Mayer, of the Manatee County Sheriff's

Department interviewed Ms. Simpson and Petitioner's name came up. At that time,

Mayer felt she looked older than she actually was. She wore "overdone" makeup

and her speech and demeanor were promiscuous. She was obviously trying to make

herself look older through the clothes she wore and admitted frankly she had

initiated the contact with Petitioner. She also indicated she had sex with

others, including other police officers, and could see nothing wrong with it.

8. Mayer later interviewed Petitioner about this at the Bradenton Police

Department. Petitioner was not under arrest at the time and frankly admitted

the one involvement with Ms. Simpson at her house, as described above. After

completing the investigation, Mayer made his report to the Assistant State

Attorney who charged Petitioner with having sex with a child under age 16. No

evidence was presented as to the outcome of that charge.

9. While serving as a police officer with the Bradenton Police Department,

Petitioner received several written and verbal commendations and was named

police officer of the year in 1984. He had no disciplinary record with the

department. He was well liked and respected by his fellow officers and

superiors on the force and was rated as having excellent law enforcement officer

abilities and characteristics. His reputation for truthfulness and integrity

within the department was outstanding.

10. Petitioner is also highly thought of within the remainder of the law

enforcement community in Manatee County even though the incident with Ms.

Simpson is well known throughout that community. He still has an excellent

reputation for truthfulness and integrity within the community and those who

know his character feel he can function effectively as a law enforcement officer

notwithstanding this incident.

11. In 1988 the Palmetto Police Department conducted a background

investigation of petitioner relevant to his prospective employment with the

department. This thorough investigation included a polygraph examination and

interviews with his previous employers, friends, neighbors, and others who know

and have known him for years. The ultimate conclusion of this investigation was

that Petitioner is of good moral character. A similar investigation by the

Hardee County Sheriff's Department in 1989 established the same.

12. Other individuals on the periphery of the law enforcement community,

who have: know Petitioner and his family for many years are satisfied his

character and his reputation for honesty and integrity in the law enforcement

and business communities are superb.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

14. Petitioner has the burden of proving his entitlement to the

certification issued by the CJSTC by a preponderance of the evidence.

15. Under the provisions of Section 943.13(7), Florida Statutes, one of

the minimum qualifications for certification as a law enforcement officer in

Florida is that the applicant:

Have a good moral character as determined

by a background investigation under

procedures established by the Commission.

16. Rule 11B-27.007, F.A.C., authorizes the denial of an application for

certification as a law enforcement officer for failure to meet the minimum

qualifications for certified officers, of which good moral character is one.

The Commission's authority to deny applications on the ground of poor moral

character is within its broad discretion. Sandlin v. Criminal Justice Standards

and Training Commission, 531 So.2d 1344 (Fla. 1988).

17. Since "good moral character" is paramount to the resolution of this

issue, it must be defined as possible. Most cases on the subject utilize such

terms as "the ability to distinguish right from wrong and observe the right";

"possession of those qualities generally acceptable to the public for positions

of trust and confidence"; and "an absence of facts which would cause a

reasonable man to have substantial doubts about an individual's honesty,

fairness and respect for the rights of others and the law." Zemour, Inc. v.

Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977); Florida Board of Bar

Examiners Re: G.W.L., 364 So.2d 454 (Fla.1978).

18. Petitioner does not deny that he started to engage in a physical

relationship with Ms. Simpson, thinking she was older than she was, even though

she might have been under age. However, the evidence of record, developed by

the various agencies looking into the situation, clearly demonstrates that Ms.

Simpson was, at the time, the aggressor in the relationship and obviously trying

to make herself look older than she was. Her morality was made clear by the

testimony of Captain Mayer and it is without reasonable question that she was on

the prowl, abetted by her father, and Petitioner was to be her prey for the

evening.

19. As the basis for its denial of Petitioner's application for

certification on the basis of poor moral character, the Commission relies solely

on the report of the incident, incorrectly described in its own letter of

denial. On the other hand, Petitioner has, through the testimony of the

individuals present at the hearing and the documentation submitted as backup

support therefor, that in any community considered, business, law enforcement,

or other, his reputation for honesty, integrity, and truthfulness is of the

highest. Nothing besmirches his record save this one incident. It demonstrates

he succumbed to temptation and a momentary lack of judgement rather than an

absence of good character. Here, Petitioner has satisfied his burden to

establish his entitlement to certification on the question of his good moral

character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is,

therefore:

RECOMMENDED that the Criminal Justice Standards and Training Commission

find that Petitioner, James L. Foy meets the good moral character requirement of

the certification statute and, all other qualifications being met, grant him

certification as a law enforcement officer in Florida.

RECOMMENDED this 3rd day of January, 1990, in Tallahassee, Florida.

__________________________________

ARNOLD H. POLLOCK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January, 1990.

COPIES FURNISHED:

Gene Johnson, Esquire

Florida Police Benevolent Association, Inc.

General Counsel

300 East Brevard Street

Tallahassee, Florida 32301

Joseph S. White, Esquire

Florida Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director

Criminal Justice Standards and Training Commission

P. O. Box 1489

Tallahassee, Florida 32302

Rodney Gaddy

General Counsel

FDLE

P. O. Box 1489

Tallahassee, Florida 32302

James T. Moore

Commissioner

Post Office Box 1489

Tallahassee, FL 32302

FDLE

P. O. Box 1489

Tallahassee, Florida 32302