00-001353 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Gayle L. Graham Status: Closed Recommended Order on Friday, August 11, 2000.

Summary: Public assistance fraud constituted a lack of good moral character; sanctions against certifications are appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-1353

)

GAYLE L. GRAHAM, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 27, 2000, in Quincy, Florida, before Donald R. Alexander,

the assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gabrielle Taylor, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Harold S. Richmond, Esquire

227 East Jefferson Street

Quincy, Florida 32353-0695

STATEMENT OF THE ISSUE

The issue is whether Respondent's Law Enforcement and

Correctional Officer Certificates should be disciplined for the

reasons set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

This matter began on August 13, 1999, when Petitioner,

Florida Department of Law Enforcement, Criminal Justice Standards

and Training Commission, issued an Administrative Complaint

charging that beginning in November 1996, Respondent, Gayle L.

Graham, a certified correctional and law enforcement officer,

unlawfully obtained public assistance benefits by failing to

disclose on her applications that she received monthly child

support payments. In a paper filed on September 22, 1999,

Respondent requested a formal hearing under Section 120.569,

Florida Statutes, to contest the charges.

The matter was referred by Petitioner to the Division of

Administrative Hearings on March 30, 2000, with a request that an

Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated April 27, 2000, a final hearing was

scheduled on June 27, 2000, in Quincy, Florida.

At the final hearing, Petitioner presented the testimony of

Monica E. Reddick-Dukes, Johnnie Chavis, Rebecca Mitchell, and

Sylvia Gardner, all present or former public assistance

specialists with the Department of Children and Family Services;

Mary Young, a deputy clerk supervisor of child support for

Gadsden County, Florida; and Susan K. Harrison, a public

assistance fraud investigator. Also, it offered Petitioner's

Exhibits A-G and I, J, N, and O, which were were received in

evidence. Respondent testified on her own behalf and presented

the testimony of Robert Mixon and Steve Sweet, both former police

officers with the City of Midway, Florida.

The Transcipt of the hearing (two volumes) was filed on July

13, 2000. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

July 31, 2000. A filing was timely made by Petitioner, and it

has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary proceeding, Petitioner, Florida

Department of Law Enforcement, Criminal Justice Standards and

Training Commission (Commission), seeks to discipline

Correctional Certificate No. 56629 and Law Enforcement

Certificate No. 135685 held by Respondent, Gayle L. Graham

(formerly known as Gayle Livings), on the grounds that she

unlawfully obtained public assistance benefits in 1996, 1997, and

1998 by failing to disclose on her applications that she was

receiving child support payments. In her request for a hearing,

Respondent denied that she "knowingly [made] a false statement"

when applying for such benefits.

2. During her tenure as a law enforcement officer,

Respondent has been employed by both the Leon County and Gadsden

County Sheriff's Office. Since November 1998, she has been a

police officer with the City of Midway Police Department.

3. On September 4, 1990, Respondent's marriage with Brooks

Jampole ( Jampole) was dissolved. Beginning on September 15,

1990, Jampole was required to pay Respondent $400.00 per month in

child support payments for their minor child (Joseph). Although

such payments were sporadic during the first few years, in 1994,

the court directed that Jampole deposit the payments with the

court registry each month; from that time until she applied for

public assistance benefits in October 1996, and continuing

through 1998, Respondent received regular child support payments

through the Gadsden County Clerk's Office.

4. On an undisclosed date, Respondent married Michael

Graham (Graham). Their union produced a child ( Brianna) in

March 1995. In October 1996, Respondent had just resigned her

job with the Gadsden County Sheriff's Office and her husband had

lost his job. The couple lived in a Tallahassee apartment with

Joseph and Brianna. At that time, Respondent had become pregnant

with her third child. Because of a difficult pregnancy, which

rendered her unable to work and in desperate financial straits,

Respondent applied for public assistance benefits from the State

of Florida, including food stamps and cash assistance in the form

of Aid to Families with Dependent Children (AFDC). Her

application was processed by the Tallahassee office of the

Department of Children and Family Services (DCFS). Shortly after

her benefits were approved, her financial woes were further

exacerbated when Graham left the marriage and failed to

contribute support for his two minor children.

5. In order to receive public assistance benefits, an

applicant must meet all DCFS criteria, including those falling

under the categories of income, assets, and technical

requirements. Relevant to this controversy is the requirement

that child support payments, which are considered a form of

unearned income, be fully disclosed by the applicant. Any amount

of child support received by an applicant has an effect on how

much public assistance an applicant may receive. Further, by

law, child support payments received by an applicant while the

beneficiary of public aid must be reassigned to DCFS.

6. According to DCFS public assistance specialists who

processed such applications in late 1996 and 1997, it was

standard procedure to run through a computer check list with all

applicants, which included an instruction that the applicants

disclose any child support payments. Although none of the

specialists could specifically recall their conversations with

Respondent, it can be reasonably inferred from the evidence that

Respondent was told that she must disclose all sources of income,

including child support payments. In addition, the application

itself contained a space for disclosing these amounts, and it

warned the applicant about the Florida fraud law and the

penalties for perjury.

7. On seven applications executed by Respondent between

October 22, 1996, and July 28, 1998, she failed to disclose the

fact that she was receiving monthly child support payments for

Joseph. This resulted in her benefits increasing, and it

deprived the State of her monthly child support payments, which

should have been reassigned to DCFS. In all, Respondent was

overissued $5,080.00 in cash assistance and $2,361.00 in food

stamps from November 1996 through November 1998. However, as

part of a pre-trial intervention program with the Leon County

State Attorney's Office, and with the assistance of a family

loan, Respondent promptly repaid all overpayments, and the

associated criminal charges were dismissed.

8. In fairness to Respondent, during the first interview

with a public assistance specialist in October 1996, Respondent

told the specialist that the payments had sometimes been sporadic

in the past and that she could not rely on her ex-husband, who

had taken her to court five times and had threatened to stop

paying support. Respondent says the specialist replied that she

didn't need to report the funds if "you absolutely can't count on

it." While each of the specialists who testified at hearing

denied that they would ever make such a remark, and perhaps these

exact words were not spoken, it is fair to infer that Respondent

left the interview with the understanding that she would not have

to report the income in the event the future support payments

were not assured. However, as the regularity of the payments

continued during the ensuing months, Respondent should have known

that she was under an obligation to report the income. To her

credit, though, she advised DCFS when Graham left the household,

which resulted in her receiving lower monthly payments.

9. In mitigation, Respondent has been certified as a

correctional officer since 1991 and a law enforcement officer

since 1992. She is presently employed in good standing as a

police officer with a municipality in Gadsden County, a job which

requires continued certification. When the illicit conduct

occurred, Respondent was facing extraordinary financial and

personal problems, including an inability to work due to a

difficult pregnancy with her third child, and two small children

to support. In addition, her husband had just lost his job, and

within a short period of time, he left the marriage without

providing financial assistance to his former wife and children.

Moreover, at the beginning of the application process, Respondent

was under the misimpression that if child support payments were

not absolutely assured, then their disclosure was not necessary.

Importantly, she has made restitution for all overpayments.

Finally, revocation or suspension of the certificates would cause

a severe financial hardship on Respondent, who needs

certification to continue in her present job, and who must

support her family.

10. Only one aggravating factor is applicable, and it is

clearly outweighed by the mitigating circumstances. Although

Respondent received pecuniary gain from her misconduct, she did

not use her position to commit the misconduct nor was she

performing other law enforcement duties at the time; there are no

prior disciplinary actions taken against her; there was no danger

to the public; the severity of the conduct was minimal; the

actual "damage" to the public (overpayments) was promptly repaid;

and the misconduct was not motivated by discrimination and did

not involve domestic violence.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(1999).

12. As the party seeking to take disciplinary action

against Respondent's professional license, Petitioner has the

burden of proving by clear and convincing evidence that the

charges in the Administrative Complaint are true. Newberry v.

Fla. Dep't of Law Enforcement , 585 So. 2d 500, 501 (Fla. 3d DCA

1991).

13. According to the complaint, the actions of Respondent,

if true, "violate[d] Section 943.1395(6) and/or (7), Florida

Statutes, and/or Rule 11B-27.0011(4)(a), Florida Administrative

Code, in that Respondent has failed to maintain the

qualifications in Section 943.13(7), Florida Statutes, which

require that a Correctional and Law Enforcement officer in the

State of Florida have good moral character." At the same time,

Rule 11B-27.0011(4)(a), Florida Administrative Code, defines a

certified officer's failure to maintain good moral character as

"[t]he perpetration by the officer of an act which would

constitute any felony offense, whether criminally prosecuted or

not." In this case, the cited misconduct would constitute a

violation of Section 414.39(5)(a), Florida Statutes, a felony of

the third degree, since the aggregate value of the overpayments

exceeded $200.00 during "any 12 consecutive months."

14. By clear and convincing evidence, Petitioner has

established that the charges in the complaint are true. This

being so, Respondent is subject to sanctions against her

standards.

15. Rule 11B-27.005(5)(a), Florida Administrative Code,

provides that in the absence of any mitigating circumstances, the

penalty for committing a felony offense shall range "from

suspension of certification to revocation." Except for the

single aggravating factor identified in Finding of Fact 10, there

are no others present. In contrast, a number of mitigating

factors are described in Finding of Fact 9, which outweigh the

single aggravating factor. Accordingly, a lesser penalty is

appropriate under the facts of this case.

16. Although Petitioner has suggested revocation of

Respondent's certificates, a period of two years' probation is

more appropriate, subject to such terms and conditions, if any,

as the Commission deems necessary.

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 determining that Respondent has

failed to maintain good moral character, as charged in the

Administrative Complaint, and that her correctional and law

enforcement certificates be placed on probation for a period of

two years, subject to such terms and conditions, if any, as the

Commission may deem appropriate.

DONE AND ENTERED this 11th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2000.

COPIES FURNISHED:

A. Leon Lowrey, II, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael R. Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Gabrielle Taylor, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Harold S. Richmond, Esquire

227 East Jefferson Street

Quincy, Florida 32353-0695

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 should be filed with the agency that will

issue the final order in this case.