88-006448 Cyrril White vs. Department Of Law Enforcement Status: Closed Recommended Order on Friday, July 7, 1989.

Summary: No evidence presented that corredtional officer lacked good moral character,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYRRIL WHITE, )

)

Petitioner, )

and )

)

METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 88-6448

)

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING COMMISSION, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Claude B. Arrington, held a formal hearing in the

above-styled case on April 11, 198, in Miami, Florida.

APPEARANCES

For Petitioner: Kathryn Knieriem Estevez, Esquire

10680 N. W. 25 Street

Miami, Florida 33172

For Respondent: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 33202

For Intervenor: Lee Kraftchick, Esquire

Assistant County Attorney

in and for Dade County Metro Dade Center

111 N.W. 1st Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Petitioner possesses the requisite

good moral character for certification as a correctional officer.

PRELIMINARY STATEMENT

The record in the instant case consists of the testimony and exhibits

offered at the hearing held on April 11, 1989, as well as the generic record

developed during the course of hearing on April 3-4, 1989. At the hearing held

April 11, 1989, Petitioner testified on his own behalf and called six additional

witnesses. Petitioner introduced two documentary exhibits which were accepted

into evidence. Respondent called one witness and offered no documentary

exhibits.

A generic record was developed because this case is one of a series of

formal hearings beard on a docked which began April 3, 1989. Certain evidence,

which pertains to this case as well as almost all of the other cases on the

docket, was heard by Hearing Officer William J. Kendrick on April 3 and 4, 1989.

This generic evidence will be considered as part of the record of this case by

stipulation of the parties and by order of Hearing Officer Kendrick. The

generic record consisted of the testimony of two witnesses called by the

Intervenor, the testimony of one witness called by Respondent, and the testimony

of two witnesses called by Petitioner. Documentary evidence was received into

evidence as follows: Hearing Officer's Exhibits 1-38; Respondent's Composite

Exhibit 1, and Petitioner's Exhibit 1. The only documentary exhibit not accepted

into evidence was marked for identification purposes as Intervenor's Exhibit 1.

Metropolitan Dade County, Intervenor, participated in the presentation of

the generic evidence on April 3 and 4, 1989, and submitted a post hearing brief

in this case, but did not otherwise participate or appear at the formal hearing

on April 11, 1989.

At the parties' request, a deadline was established for filing proposed

findings of fact or other post hearing submissions that was more than ten days

after the filing of the transcript in May. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty days after the

transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties'

proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. In June 1988, Respondent, Florida Department of Law Enforcement,

Criminal Justice Standards and Training Commission, acting on a tip from local

media that intervenor, Metropolitan Dade County, Department of Corrections and

Rehabilitation (Metro Dade Corrections) , had in its employ a number of

correctional officers who were not certified, undertook a review of the

employment records of Metro Dade Corrections. As a result of this review,

Respondent identified 363 individuals, including Petitioner, who were employed

by Metro Dade Corrections as correctional officers but who had not been

certified by Respondent.

2. On August 10-11, 1988, personnel employed by Respondent visited the

Metro Dade Corrections personnel office and audited the personnel file

maintained by Metro Dade Corrections of each of the 363 individuals in question,

including Petitioner's personnel file. The audit demonstrated that the files

were disorganized, lacking documentation required by Rule 11B-27.002, Florida

Administrative Code, to apply for certification, and that Metro Dade Corrections

had failed to apply for certification on behalf of the 363 officers.

3. Over the course of their two-day visit, employees of Respondent worked

with employees of Metro Dade Corrections to complete the documentation on each

file. Variously, they prepared registration forms and affidavits of compliance

and assembled other missing documentation, such as birth certificate and

fingerprint cards.

4. The 363 completed applications for certification were returned to

Tallahassee by Respondent for processing. The vast majority of the individuals

were certified; however, Respondent declined, for reasons hereinafter discussed,

to certify Petitioner. The pending application

5. Petitioner has been employed by the Metropolitan Dade County Department

of Corrections and Rehabilitation (hereinafter called Metro Dade Corrections) as

a correctional officer since April 21, 1988 without benefit of certification.

6. As part of the pre-employment process, Petitioner submitted to Metro

Dade Corrections an affidavit dated April 21, 1988, which provides in pertinent

part:

I fully understand that, in order to qualify

as a law enforcement or correctional officer,

I must fully comply with the provisions of

Section 943.13, Florida Statutes, as follows:

* * *

7. Be of good moral character.

I further understand that by executing this

document I am attesting that I have met the

qualifications as specified...

7. Metro Dade Corrections, as the employing agency, is responsible for

conducting a thorough background investigation to determine the moral character

of an applicant. Consistent with such mandate, Metro Dade Corrections routinely

uses previous employment data, law enforcement records, credit agency records,

inquiries of the applicant's neighbors and associates, and a pre- employment

interview, at which a polygraph examination is administered, to assess an

applicant's moral character. At the time Petitioner began employment on April

21, 1988, Metro Dade Corrections had completed its investigation into

Petitioner's background and had concluded that Petitioner possessed the good

moral character required for certification.

8. Fred Crawford, the Metro Dade Corrections director, executed an

affidavit of compliance on April 21, 1988 that contained the following sworn

statement:

I hereby certify that I have collected,

verified, and am maintaining on file evidence

that the applicant has met the provisions of

Section 943.13(1)-(8) and Section 943.131,

Florida Statutes, or any rules adopted

pursuant thereto.

9. There is no evidence that a complete application package for

Petitioner's certification was prepared before August 11, 1988. Respondent did

not receive a complete application for certification on Petitioner's behalf

until August 11, 1988, when Metro Dade Corrections, as the employing agency,

submitted to Respondent a complete application package for certification of

Petitioner as a correctional officer. This was the first application for

certification submitted on Petitioner's behalf.

10. By letter dated November 7, 1988, Respondent notified Petitioner that

his application for certification was denied because Petitioner did not possess

the requisite good moral character for certification as a correctional officer.

Respondent gave the following as its reasons for concluding that Petitioner

lacked good moral character:

You have unlawfully and knowingly obtained or

used or endeavored to obtain or to use a

generator and lawn mower, the property of

Builders Square with the intent to either

temporarily or permanently deprive the owner

of a right to the property or a benefit

therefrom or to appropriate the property to

your own use or to the use of any persons not

entitled thereto.

11. At the time of the hearing, Petitioner made a prima facie showing of

good moral character. Petitioner offered no competent evidence that Petitioner

had committed any of the acts contained in its letter of denial, or which

otherwise rendered questionable the prima facie showing of good moral character

demonstrated by Petitioner.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes.

13. The ultimate burden of persuasion of whether an application for

certification as a correctional officer should be approved rests with the

applicant. See Rule 28-6.08(3), Florida Administrative Code, and Florida

Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA

1981). In this case, the applicant has met his burden of proof by presenting a

prima facie showing of good moral character, which the Commission has failed to

rebut or contradict.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Lawn it is:

RECOMMENDED that the Commission enter a final order approving White's

application for certification as a correctional officer.

DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County,

Florida.

_________________________________

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of July, 1989.

APPENDIX

The proposed findings of fact submitted on behalf of

Petitioner, individually, are addressed as follows:

1. Addressed is paragraph 5.

2. Addressed in paragraph 6.

3. Addressed in paragraph 8.

4-16. Rejected as being unnecessary to the result reached or as being

subordinate to the conclusions reached.

17-26. Rejected as being subordinate to the conclusions reached.

27-36. Rejected as being recitation of testimony and as being subordinate

to the conclusions reached.

The proposed findings of fact submitted for petitioner on the generic record are

addressed as follows:

1-14. Rejected as recitation of witness testimony, and not findings of

fact. The matters have, however, been addressed in paragraphs 7 so far as

deemed necessary to the result reached.

15, 16, 18-20. Addressed in paragraphs 1-4.

17. Rejected as unnecessary to the result reached.

21. Addressed in paragraph 7, otherwise rejected as unnecessary to the

result reached in a legal conclusion.

22-27. Rejected as subordinate to the conclusion reached.

28. Rejected as misleading and not supported by competent proof.

29-30. Rejected as being subordinate to the conclusion reached or not

supported by competent evidence.

The proposed findings of fact submitted on behalf of Respondent are addressed as

follows:

1-3. Addressed in paragraphs 9-10.

4. Rejected as being unnecessary to the result reached.

5-10. Rejected as being unnecessary to the result reached or as being

subordinate to the conclusions reached.

11. Addressed in paragraph 5.

COPIES FURNISHED:

Kathryn Knieriem Estevez, Esquire

Attorney at Law

Law Offices of

Slesnick and Lober

10680 Northwest 25th Street

Suite 202

Miami, Florida 33172

Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Lee Kraftchick, Esquire

Assistant County Attorney

in and for Dade County

Metro Dade Center

111 N.W. First Street, Suite 2810

Miami, Florida 33128

Daryl McLaughlin, Executive Director

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Jeffrey Long, Director

Criminal Justice Standards

Training Commission

Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, Esquire

General Counsel

Florida Department of Law

Enforcement

Post Office Box 1489

Tallahassee, Florida 32302