00-001285 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Michael Balmarez Status: Closed Recommended Order on Thursday, September 21, 2000.

Summary: Respondent failed to maintain good moral character when he made false written statements on job applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-1285

)

MICHAEL BALMAREZ, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was held in this case on July 21, 2000, in

Port St. Joe, Florida, before the Division of Administrative

Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Charles A. Costin, Esquire

Post Office Box 98

Port St. Joe, Florida 32457-0098

STATEMENT OF THE ISSUES

The Issues are whether Petitioner violated Section

943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(b), 11B-

27.0011(c), and 11B-27.005(3), Florida Administrative Code, and

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about July 16, 1999, Petitioner Criminal Justice

Standards and Training Commission (Petitioner), filed an

Administrative Complaint against Respondent Michael Balmarez

(Respondent). Said complaint alleged that Respondent had

violated Section 943.13(7), Florida Statutes, and Rules 11B-

27.0011(4)(b), 11B-27.0011(c), and 11B-27.005(3), Florida

Administrative Code.

On October 13, 1999, Respondent filed a request for a

formal administrative hearing. Petitioner referred this request

to the Division of Administrative Hearings on March 28, 1999.

The parties responded to the Initial Order on April 12,

2000. The undersigned issued a Notice of Hearing dated

April 18, 2000, scheduling the formal hearing for July 21, 2000.

At the hearing, Petitioner presented the testimony of two

witnesses and offered ten exhibits, which were accepted into

evidence. Respondent testified on his own behalf but offered no

exhibits for admission into evidence.

Petitioner ordered a copy of the hea ring transcript, the

original of which was to be filed with the Division of

Administrative Hearings. Because the court reporter did not

file the transcript of the proceeding within a reasonable time

after the hearing, the undersigned's office requested Petitioner

to inquire as to the date that it would be filed. Subsequently,

the court reporter filed the hearing Transcript on August 7,

2000.

On August 16, 2000, the parties filed a Joint Motion for

Extension of Time to File Proposed Recommended Orders. The

undersigned granted this motion by order dated August 17, 2000.

Respondent filed his proposed findings of fact and

conclusions of law on August 23, 2000. Petitioner filed its

proposed findings of fact and conclusions of law on August 24,

2000.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent

held the following certifications: (a) Auxiliary Law

Enforcement Officer, Certificate No. 94223 issued on August 6,

1987; (b) Law Enforcement Officer, Certificate No. 94221 issued

on April 19, 1990; and (c) Correctional Officer, Certificate

No. 94222 issued on September 5, 1991.

2. Respondent possesses an Associate of Arts (A.A.) degree

in Criminal Justice Technology and an A.A. in Law Enforcement

and Correctional Management. He has nearly completed a Bachelor

of Arts degree in Legal Studies. He has approximately 2,500

hours of law enforcement training. At the time of the hearing,

Respondent was working for a law firm as a paralegal.

3. Respondent's relevant work history, full and part-time,

is as follows: (a) police officer for Jacksonville Sheriff's

Office (6/5/87-4/17/88); (b) Florida State Prison (3/3/89-

3/23/89); (c) Starke Police Department (4/5/90-6/27/90);

(d) Lawtey Police Department (9/15/90-10/22/90); (e) Hampton

Police Department (12/17/93-5/9/94); (f) Lawtey Correctional

Institution (9/5/91-7/21/92); (g) Union Correctional Institution

(10/2/92-4/6/94); (h) Green Cove Springs Police Department

(11/19/92-6/14/93); (i) Hampton Police Department (12/17/93-

5/9/94); (j) Department of Corrections (9/23/94-10/6/94);

(k) Corrections Corporation of America (CCA) (10/17/94-1/24/95);

(l) Springfield Police Department (2/13/95-9/22/95); (m) Port

St. Joe Police Department (4/8/96-10/9/96); (n) Springfield

Police Department (10/10/96-10/10/97); (o) Escambia County Solid

Waste Department (4/21/98-7/16/98); and (p) Mexico Beach

Department of Public Safety (11/12/98-11/17/98.)

4. In 1994, Respondent used force on an inmate at the

Bradford County Jail. Thereafter, Respondent was served with a

summons to appear in court on a charge of battery.

5. On February 28, 1995, Respondent pled nolo contendere

to battery in the County Court of the Eighth Judicial Circuit

for Bradford County, Florida. The Judgment and Sentence entered

by the County Judge withheld adjudication of guilt but ordered

Respondent to pay a fine in the amount of $141.25.

6. As a result of the battery conviction, Petitioner filed

an Administrative Complaint against Respondent. After a hearing

conducted pursuant to Sections 120.569 and 120.57(2), Florida

Statutes, Petitioner entered a Final Order on July 22, 1998.

Petitioner suspended Respondent's criminal justice certification

for 12 days to be served within the first six months of his

probation. Petitioner placed Respondent on probation for two

years beginning August 6, 1998.

7. On May 29, 1998, Respondent submitted an application

for employment with the City of Mexico Beach for a position as a

patrolman. On this application, Respondent indicated that he

had never had "a job connected disease or injury" and that he

had never been arrested or charged with any criminal violation.

Regarding his work history, Respondent listed only six of the

above-referenced jobs. He did not list any former employment

unrelated to law enforcement work.

8. Respondent was not selected for the patrolman position

in May 1998. However, Respondent's job application was still on

file with the City of Mexico Beach when another patrolman

position became available in the fall of 1998.

9. Mitchell Pollock was Chief of Police for the City of

Mexico Beach in the fall of 1998. Chief Pollock invited

Respondent to meet with a five-member committee to interview for

the new patrolman position. During the interview, Respondent

was asked if he had ever been disciplined by one of his

employers. Respondent replied, "I've been in the work force 17,

18 years, and of course I've had disciplinary action taken

against me." No one on the interview committee elicited a more

specific response and Respondent did not elaborate.

10. Chief Pollock subsequently called a couple of

Respondent's former employers. Chief Pollock then had a one-on-

one interview with Respondent.

11. During the one-on-one interview with Chief Pollock,

Respondent admitted that the City of Springfield sent him to a

school in South Florida where he experienced some trouble and

was sent home. Respondent told Chief Pollock that he had

resigned from the Springfield Police Department due to political

pressure.

12. During the interview, Chief Pollock asked Respondent

if he had been involved in a racial discrimination situation

while he was employed by the Port St. Joe Police Department.

Respondent told Chief Pollock that he had no knowledge of such

allegations.

13. After the one-on-one interview, Chief Pollock decided

to recommend that the City of Mexico Beach hire Respondent as a

patrolman. The City Council of Mexico Beach accepted Chief

Pollock's recommendation on November 10, 1998.

14. Respondent reported to work on November 12, 1998. One

of Respondent's first responsibilities was to fill out a new job

application for insurance purposes and to update his status. He

was given the May 29, 1998, job application to use as reference.

15. On the November 12, 1998, application, Respondent

indicated that he had never had a job-connected disease or

injury. He correctly indicated that he had never been convicted

of a felony. Unlike the May 29, 1998, application, the November

12, 1998, application did not contain a question related to

prior arrests and/or charges of criminal violations. Respondent

did not update his employment history on the second application.

16. After filing out the second application, Respondent

advised Chief Pollock that his FDLE certification was on

probation. Respondent revealed for the first time that he had

pled nolo contendere to battery for hitting a prisoner in the

Bradford County Jail.

17. On or about November 12, 1998, the Mexico Beach Police

Department received a copy of Respondent's Officer Profile Sheet

from FDLE. The background check revealed that Respondent had

ten more former employers than the six he listed on his May 29,

1998, job application. The background check also revealed

discrepancies in Respondent's dates of employment as reported in

the Officer Profile Sheet and as listed in the May 29, 1998,

application.

18. The FDLE background check revealed negative employment

history that Respondent had not disclosed. During the hearing,

Respondent admitted the following: (a) he quit his job at

Florida State Prison without giving notice and began working for

Starke Police Department, calling in sick everyday at the prison

until he used up leave time to which he believed he was

entitled; (b) he left his job at CCA knowing that he was going

to be terminated for violating security procedures (taking an

inmate out of a secure area without requesting assistance,) and

being late for work on two occasions; (c) he was asked to resign

from the Starke Police Department during field training; (d) he

was asked to resign from the Green Cove Springs Police during

field training due to allegations of excessive force; (e) the

mayor of the City of Springfield asked Respondent to resign his

job as code enforcement officer; (f) he was terminated by the

Department of Corrections for abandoning his position; and

(g) he quit his job with the Hampton Police Department knowing

that he would be fired due to use of force at the Bradford

County Jail.

19. The Mexico Beach Police Department also learned that

Respondent had filed two worker's compensation claims for work-

related injuries. The first injury occurred on April 9, 1999,

while Respondent was working for Lawtey Correctional

Institution. The second injury occurred on December 16, 1995,

while Respondent was working for Department of Juvenile Justice,

Bay Regional Juvenile Detention Center. He received

compensation and/or medical benefits in both cases. Respondent

did not reveal information related to these two injuries on

either of his job applications.

20. Chief Pollock suspended Respondent on November 16,

1998. The Mexico Beach City Council subsequently terminated

Respondent's employment on November 17, 1998.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

22. Petitioner has the burden of proving the facts alleged

in the Administrative Complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

23. The Administrative Complaint alleges that Respondent

is guilty of the following: (a) making a false statement to

officials of the Mexico Beach Police Department with the intent

to mislead those officials regarding his background for

employment; (b) making false statements in writing with the

intent to mislead Chief Mitchell Pollock of the Mexico Beach

Police Department, a public servant, in the performance of his

official duty; and (c) failing to comply with a lawful order of

Petitioner filed on July 22, 1998, by violating Section 943.13,

Florida Statutes, and/or 11B-27.0011, Florida Administrative

Code.

24. Section 943.13(7), Florida Statutes, provides that any

person employed or appointed as a law enforcement officer shall

"[h]ave a good moral character as determined by a background

investigation under procedures established by the commission."

25. Section 943.1395(7), Florida Statutes, authorizes

Petitioner to revoke the certification of a law enforcement

officer or to impose lesser specified penalties on an officer

who fails to maintain good moral character.

26. Rule 11B-27.0011(4), Florida Administrative Code,

states as follows in relevant part:

(4) For the purposes of the Commission's

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer's failure to

maintain good moral character, as required

in Section 943.13(7), F.S., is defined as:

* * *

(b) The perpetration by the officer of an

act that would constitute any of the

following misdemeanor or criminal offenses,

whether criminally prosecuted or not:

Sections . . . 837.06, . . . F.S., . . . .

(c) The perpetration by the officer of an

act or conduct which constitutes:

* * *

6. False statements.

27. Section 837.06, Florida Statutes, states that

"[w]hoever knowingly makes a false statement in writing with the

intent to mislead a public servant in the performance of his or

her official duty shall be guilty of a misdemeanor or the second

degree . . . ."

28. In this case, clear and convincing evidence indicates

that Respondent made false written statements in violation of

Section 837.06, Florida Statutes, even though he has not been

criminally prosecuted. Respondent made these false written

statements when he submitted his May 29, 1998, and November 12,

1998, job applications, indicating that he had never had a job-

connected disease or injury and when he certified his answers on

the May 29, 1998, application, indicating that he had never been

arrested or charged with any criminal violation. Respondent's

actions clearly and convincingly demonstrate that he has failed

to maintain good moral character as defined in Rules 11B-

27.0011(4)(b) and 11B-27.0011(4)(c), Florida Administrative

Code.

29. Respondent asserts that he filled out the May 29,

1998, application hastily and that he did read or understand the

application to require disclosure of his prior work-related

injuries and/or his conviction for battery. This testimony is

not persuasive.

30. As to the work-related injuries, the May 29, 1998, and

November 12, 1998, applications simply inquired whether

Respondent had ever had a job-connected disease or injury; they

did not refer to the settlement of an adversarial worker's

compensation claim. The applications also inquired whether

Respondent had received compensation or medical benefits for

such an injury, and if so, the length of time that he received

such benefits. On both applications, Respondent falsely stated

that he had never had a work-related injury and also failed to

provide information related to the amounts of compensation or

medical benefits that he received for two such injuries and the

time that he received them.

31. Respondent was not under any time constraints when he

filled out the November 12, 1998, application. He knew that his

employer relied on the May 29, 1998, application in making its

decision to hire him. He knew or should have known that his

employer would rely on the November 12, 1998, application to

provide updated information for insurance purposes if for no

other reason.

32. As to Respondent's prior conviction for battery, the

May 29, 1998, application clearly required him to list any

criminal violation for which he had been arrested or charged

"even if not formally charged, or no court appearance, or found

not guilty, or plead guilty or nolo contendere to any charge to

which adjudication of guilt was withheld, or matter if settled

by payment of fine or forfeiture of collateral." Given

Respondent's level of education and training as a law

enforcement officer, his assertion that he only read the word

"arrested," and did not see a need to disclose his summons,

charge, and subsequent conviction for battery is not credible.

33. Respondent failed to include relevant information on

both applications regarding his employment history.

Respondent's statement that he was rushed when he filled out the

May 29, 1998, application arguably explains why he gave

incorrect information as to the times that he was employed by

some employers, but it does not explain why he failed to list at

least ten other periods of employment and unnamed employers. It

does not explain why he failed to update his employment history

when he filled out the November 21, 1998, application.

Respondent's explanation that he did not provide greater detail

about his employment history because he knew it would be

revealed on his Officer Profile Sheet during the background

investigation is not credible. Respondent knew or should have

known that his failure to provide the Mexico Beach Police

Department with his complete employment history was misleading

even if the omissions did not rise to the level of affirmative

false statements.

34. There is evidence that Respondent was less than candid

with the five-member interview committee and with Chief Pollock

in the subsequent one-on-one interview. However, the evidence

is not clear and convincing that Respondent made affirmative

oral false statements on either occasion. He admitted that he

had been disciplined by prior employers but was not asked

specific questions, which would have revealed his unfavorable

employment history.

35. On July 22, 1998, Petitioner entered a Final Order

suspending Respondent's certification for twelve days and

placing him on probation for two years. The Final Order states

as follows in pertinent part:

The Respondent shall refrain from violating

federal, state and local laws. If during

the period of probation the Respondent

violates any part of Chapter 943, Florida

Statutes, or Title 11B, Florida

Administrative Code, and is later found at a

formal informal hearing (conducted within or

beyond the probationary period) to have

committed such a violation, then the

Commission will revoke all of the

Respondent's criminal justice certification

and eligibility for certification.

Petitioner met its burden of proving that Respondent failed to

comply with the terms and conditions of his probation when he

made a false written statement regarding his prior work-related

injuries on his November 12, 1998, application.

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

states as follows in relevant part:

(5) 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:

* * *

(b) For the perpetration by the officer of

an act which would constitute any of the

misdemeanor offenses, pursuant to Rule 11B-

27.0011(4)(b), F.A.C., . . . the action of

the Commission shall be to impose a penalty

ranging from, probation of certification to

revocation. Specific violations and

penalties that will be imposed, absent

aggravating or mitigating circumstances,

include the following:

* * *

4. False reports (. . . 837.06 . . .F.S.)

Revocation

* * *

(c) For the perpetration by the officer of

an act or conduct, as described in Rule 11B-

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

conduct does not constitute a crime, as

described in paragraph (3)(a) and (b)[sic],

of this rule, 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:

* * *

6. False statements. Probation of

certification to revocation

37. The aggravating circumstances that apply here include,

but are not limited to, the following: Respondent's multiple

false written statements; Petitioner's prior disciplinary action

against Respondent; and Respondent's non-compliance with the

terms and conditions of his probation. Rules 11B-27.005(6)(e),

11B-27.005(6)(f), 11B-27.005(6)(q), and 11B-27.005(6)(t),

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED:

That Petitioner enter a final order revoking Respondent's

certification.

DONE AND ENTERED this 21st day of September 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

F iled with the Clerk of the

Division of Administrative Hearings

this 21st day of September, 2000.

COPIES FURNISHED:

Gabrielle Taylor, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Charles A. Costin, Esquire

Post Office Box 98

Port St. Joe, Florida 32457-0098

A. Leon Lowry, II, Program Director

Division of Criminal Justice

Professionalism Services

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

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.