96-003193 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Michael E. Maddox Status: Closed Recommended Order on Tuesday, December 31, 1996.

Summary: Criminal justice center director signed certificate and application that he completed firearms instruction course when he did not; 2 year suspension recommended

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO.: 96-3193

)

MICHAEL E. MADDOX, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on September 17, 1996,

in Melbourne, Florida.

APPEARANCES

For Petitioner: Attorney Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Attorney Vincent G. Torpy, Jr.

Suite 505

930 So uth Harbor City Boulevard,

Melbourne, Florida 32901

STATEMENT OF THE ISSUES

An administrative complaint dated July 20, 1995 alleges that

Michael E. Maddox violated various provisions of Chapter 943,

Florida Statutes, and rules of the Criminal Justice Standards and

Training Commission, by knowingly submitting a false instructor

certification application and by corruptly using or attempting to

use his official position to obtain certification as a firearms

instructor when he had not met the minimum requirements.

The issues for disposition in this proceeding are whether

Michael E. Maddox committed those violations, and if so, what

discipline is appropriate.

PRELIMINARY STATEMENT

Respondent Maddox disputed the allegations of the complaint

and requested an evidentiary hearing. The case was referred to

the Division of Administrative Hearings and was heard as

described above.

At the hearing, Petitioner presented testimony of Burton

Tew, Andrew “Andy” Seminick, Christopher LaMontagne and Francis

Gallagher. Petitioner’s exhibits B,C,D,E,F,G,H,I,L,U and W were

received in evidence without objection. Exhibit Q, a transcript

of interview with Michael Mathias was taken under advisement and

is now rejected as substantially uncorroborated hearsay. The

exhibit remains in the record for identification only, and has

not been the basis for any finding of fact. See , section

120.57(1)(c), Florida Statutes (1996 Supp.).

Respondent Maddox testified in his own behalf, and presented

exhibits 25,33 and 34, received in evidence without objection.

The transcript was filed on September 30, 1996, and the

parties filed proposed recommended orders on October 31, 1996.

These have been considered in the preparation of this recommended

order.

FINDINGS OF FACT

1. Respondent, Michael Maddox (Maddox), was certified by

the Criminal Justice Standards and Training Commission (CJSTC) on

December 16, 1977 and was issued certificate number 110006.

2. For approximately the last six years Maddox has been

employed by Brevard Community College as Director of Criminal

Justice. In that position, also referred to as training center

director, Maddox is responsible for the police academy,

corrections academy, probations academy and the academic degree

program. He is required to ensure that the academies meet

standards of the CJSTC.

3. Andrew “Andy” Seminick has worked for the City of

Melbourne police department as range master for nineteen and a

half years. He is also employed by Brevard Community College as

a firearms instructor and is certified as an instructor by the

CJSTC. His employment at the community college is under the

supervision of Maddox.

4. Sometime around October 1993, Maddox approached Andy

Seminick about putting together a firearms instructor training

course for folks who could not attend at the regular time and

wanted to attend nights, weekends or as independent study.

Maddox intended to take the course himself and told Seminick of

his intention.

5. Seminick discussed the proposed class with two other

firearms instructors, Chris LaMontagne and Eric Kennard, and they

agreed that the hands-on requirements at the range made it

impossible to just let people come on their own time. The course

was set up to be conducted on November 8, 20 and 27, December 4

and 11, and a make-up class on December 18, 1993. With the

exception of November 8, these dates all fell on a Saturday. The

November 8 th session was the only formal classroom session; the

other classes were conducted at the firing range, with some

indoor discussion, but mostly field work at the range in Cocoa,

about twenty miles from the police academy.

6. Approximately twelve law enforcement officers from

various agencies signed up for the course, including Michael

Maddox. Maddox attended one class, the first, on November 8,

1993, but did not attend any other classes. He took the pre-test

on the first day, but did not take the written test or on-the-

range proficiency test at the end of the course.

7. Andy Seminick turned in completion certificates for the

other enrollees in the course, but not for Maddox, as, in his

opinion, Maddox did not satisfy the CJSTC-mandated requirements

of the course, which included forty-four hours of course time,

the preparation of a lesson plan and a proficiency evaluation.

8. Sometime between January and March 1994 Maddox

approached Andy Seminick and asked about making up time he missed

in the firearms class. Seminick agreed to work with him, but

Maddox never followed up to complete the time with Seminick.

9. As Director of Criminal Justice Michael Maddox signed

certificates of training for successful participants. After the

firearms instructor course described above, he signed

certificates of training for the participants, including himself.

These certificates state that the named individual “...has

successfully completed a program of study in Firearms Instructor-

44 hours” (Petitioner’s exhibit G). The certificates are signed

by Maddox, with a stamped signature by the president of Brevard

Community College, Maxwell King, and a type-written date

“December 11, 1993”.

10. Michael Maddox submitted an instructor certification

application to the CJSTC on March 1, 1994. The one-page form

application indicates that he was applying for certification in

two additional subjects: human diversity and firearms. On this

form he signed both as the applicant and as the recommending

training center director. His signature as training center

director appears below this statement:

Having reviewed this applicant’s

credentials and abilities as

required by Rule 11 B-20, F.A.C.,

I recommend certification or

certification renewal of this

applicant.

(Petitioner’s exhibit F)

11. Burton Tew, field specialist-research and training

specialist for the CJSTC, approved Maddox’ application on March

10, 1994, based on the training center director’s signature and

the certificates of training that he found in Maddox’ file,

including the certificate described above for the firearms

instructor course.

12. Prior to June 21, 1994, but after he approved Maddox’

firearms instructor certification, Burton Tew received a

complaint that Maddox had not completed the course. He then

conducted an investigation which led to the administrative

complaint that is the subject of this proceeding.

13. Maddox admits that he attended only one day of class

for the course. He contends that when he signed the application

recommending his own certification he was fully aware of his own

qualifications, including that he had actually taught firearms

before in 1977, when he worked for a different agency in Stuart,

Florida. He reviewed the contents of Andy Seminick’s course and

was sure that he knew the course very well without having to

attend the classes. Moreover, since he had also reviewed the

written exam, he did not feel he should also take that exam as a

student. Maddox also argued that, as training center director,

he had the authority to excuse absences from class and to approve

make-up work. For himself, he did both.

14. According to a desk calendar, firing range calendar and

vehicle mileage log, Maddox was at the firing range on several

occasions between August 1993 and March 1994. He does not

contend that he actually received instruction from the course

instructors on those dates and it is obvious that he had

purposes, other than his own course instruction, when he attended

the range, since the course at issue did not commence until

November 1993.

15. Maddox concedes that not only did he attend only one

class session and did not take the exam, there also were no

lesson plans drawn up by him and no proficiency evaluation of him

in his file for the course.

16. No one disputes Maddox’ competency in shooting

firearms. He may even be competent to teach others. He did not,

however, satisfy the requirements of the CJSTC-approved firearms

instructor course, and his explanation of why he met the

requirements is disingenuous. When he signed his own certificate

and his own application in his capacity as training director he

willfully used his official position to obtain a benefit to which

he was not entitled.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to section 120.57(1),

Florida Statutes.

18. In license discipline cases such as this, the

petitioner must prove the allegations of its administrative

complaint with evidence that is clear and convincing. Dept. of

Banking and Finance, Div. Of Securities v. Osborne Stern and Co. ,

670 So.2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.2d 292

(Fla. 1987).

19. The administrative complaint alleges that Maddox

knowingly submitted a false instructor certification application

and corruptly attempted to use his official position to obtain an

instructor certification when he had not met minimum requirements

for the certification established in Rule 11B-20, Florida

Administrative Code. The actions of Maddox are alleged to have

violated sections 943.1395(6) or (7), Florida Statutes, and

Rules 11B-27.001(4)(c) and 11B-20.0012(1)(b), (c), (d) and (f),

Florida Administrative Code; and he failed to maintain

qualifications established in section 943.13(7), Florida Statutes

which require an instructor and law enforcement officer have good

moral character.

20. Sections 943.1395(6) and (7), Florida Statutes provide,

in pertinent part:

943.1395 Certification for employment

or appointment; concurrent certification;

reemployment or reappointment; inactive

status; revocation; suspension;

investigation.

. . .

(6) The commission shall revoke the

certification of any officer who is

not in compliance with the provisions

of s. 943.13(4) or who intentionally

executes a false affidavit established

in s. 943.13(8), s. 943.133(2), or s.

943.139(2).

. . .

(7) Upon a finding by the commission

that a certified officer has not

maintained good moral character, the

definition of which as been adopted by

rule and is established as a statewide

standard, as required by s. 943.13(7),

the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such

terms and conditions, the commission may

revoke certification or impose additional

penalties as enumerated in this subsection.

(d) Successful completion by the officer

of any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

21. The rules referenced herein are those rules in effect

at relevant times in 1993 and 1994. Rule 11B-20.001(1), F.A.C.

requires that persons applying for certification to instruct in

commission-approved courses must complete and submit an

application form and complete a commission approved instructor

training course. Rules 11B-35.001(6) and (7), F.A.C. provide:

(6) Training Program Reporting Requirements:

(a) The training center directo r, or

designee, shall maintain a copy of the

course schedule and list of instructors

on file at the training school.

(b) The training center director, or

designee, shall determine the start and

end dates of each certification course.

(c) The training center director, or

designee, shall forward a completed

Training Report form, CJSTC-67, as

incorporated in 11A-1.006, F.A.C., to

the Bureau of Standards within fifteen

working days following the completion of

a course. The Division will maintain

student training files verifying

completed courses.

(d) The training center director, or

designee, shall insure that all records

for all courses are maintained within the

training school. Such records shall

include the names of all attending students,

grades, test scores and test materials,

course content, instructor certifications,

attendance records, course schedules, and

any other pertinent information. Audits

will be completed on each course.

(7) Each student shall be required to

attend all sessions of any training course

in which he/she is enrolled.

(a) No student shall be considered to

have successfully completed a training

course if he/she has any unexcused absences.

(b) If a student has any unexcused

absences, the student must retake the

training course.

(c) The training center director, or

designee, must maintain accurate daily

attendance records for each training course.

(d) The train ing center director has

the authority to excuse student absences

and approve appropriate course make-up work.

22. Rule 11B-27.011(4)(c), F.A.C. provides:

(4) For the purposes of the Commission’s

implementation of any of the penalties

enumerated in subsection 943.1395(6) or

(7), F.S., a certified officer’s failure

to maintain good moral character, as

required by subsection 943.13(7), F.S.,

is defined as:

. . .

(c) The perpetration by the officer o f

an act or conduct which causes substantial

doubts concerning the officer’s honesty,

fairness, or respect for the rights of

others or for the laws of the state and

nation, irrespective of whether such act or

conduct constitutes a crime...

23. Rules 11B-20.0012(1)(b), (c), (d) and (f), F.A.C.

provide:

11B-20.0012 Revocation of Certification.

(1) The certification of a criminal

justice instructor shall be revoked if the

instructor fails to maintain any of the

requirements set forth in 11B-20.001(1),(3)

(a)-(b), F.A.C., or, who:

. . .

(b) Willfully compromises or circumvents

the trainee attendance requirements set

forth in 11B-31.001, F.A.C.

(c) Willfully compromises or circumvents

the trainee performance requirements set

forth in 11B-31.002, F.A.C.

(d) Intentionally and materially falsifies

criminal justice training documentation.

. . .

(f) Commits an act or acts establishing a

lack of good m oral character as defined in

Rule 11B-27.0011(4), F.A.C.

24. There is no evidence that Respondent Maddox is guilty

of violating section 943.13(4), Florida Statutes (relating to

convictions of certain crimes) or that he intentionally executed

a false affidavit. The application form which he submitted was

not an affidavit. However, Petitioner met its burden of proof

that Maddox willfully and intentionally represented that he

successfully completed the requisite firearms instructor course

when he did not. His misrepresentation was made in the patent

abuse of his official position as training center director.

25. Counsel for Petitioner urges revocation of Maddox’

instructor certification and revocation of his law enforcement

certification. Since Maddox did not qualify for the firearms

instructor certification, that revocation is appropriate.

Revocation of his law enforcement certification, however is not

supported by the disciplinary guidelines established by the

CJSTC.

26. Section 943.1395(8)(d), Flo rida Statutes requires

adherence to the disciplinary guidelines and penalties described

in sections 943.1395(6) and (7), Florida Statutes and in rules

adopted by the commission. As cited above, sections 943.1395(7),

Florida Statutes describes a range of penalties. Rule 11B-

27.005(3)(c), Florida Administrative Code, is more specific:

11B-27.005 Revocation or Disciplinary

Actions; Disciplinary Guidelines; Range

of Penalties; Aggravating and Mitigating

Circumstances.

. . .

(3) When the Commission finds that a

certified officer has committed an act

which violates section 943.13(7), F.S.,

it shall issue a final order imposing

penalties within the ranges recommended

in the following disciplinary guidelines:

. . .

(c) For the perpetration by the officer

of an act or conduct which causes

substantial doubts concerning the officer’s

honesty, fairness, or respect for the

rights of others or for the laws of the

state and nation, as described in 11B-

27.0011(4)(c), F.A.C., if such act or

conduct does not constitute a crime, as

described in paragraphs (3)(a) and (b)

above, the action of the commission shall

be to impose a penalty ranging from the

issuance of a reprimand to revocation.

Specific violations and penalties that

will be imposed, absent aggravating or

mitigating circumstances include the

following:

Violation Penalty

. . .

5. Abuse of Official

Position Suspension

. . .

Maddox’ violation is mitigated by the lack of evidence of

prior disciplinary actions, but is aggravated by his use of

official authority and motivation of self-gain.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED that the Criminal Justice Standards and Training

Commission enter its Final Order finding that Michael E. Maddox

failed to maintain good moral character and failed to qualify for

certification as a firearms instructor, and imposing the

following penalties:

a) revocation of his firearms instruct ion certification;

and

b) suspension of his law enforcement certification for a

period of two years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

31st day of December, 1996.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 1996.

COPIES FURNISHED:

Paul D. Johnston, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Vincent G. Torpy, Jr., Esquire

Suite 505

930 South Harbor City Boulevard

Melbourne, Florida 32901

A. Leon Lowry, II, Director

Division of Criminal Justice

Standards and Training

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage

General Counsel

Post Office Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order must be filed with the agency that will

issue the final order in this case.