McAlpin v. Criminal Justice Standards & Training Comm'n

• Citation: 155 So.3d 416
• Decision Date: 31 December 2014
• Docket Number: No. 1D14–1355.,1D14–1355.
• Parties: John B. McALPIN, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
• Court: Florida District Court of Appeals

155 So.3d 416

John B. McALPIN, Appellant

v.CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.

No. 1D14–1355.

District Court of Appeal of Florida, First District.

Dec. 31, 2014.

William M. Furlow of Grossman, Furlow, and Bayó, LLC, Tallahassee, for Appellant.

Thomas F. Kirwin, General Counsel, and Linton Eason, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.

Opinion

PER CURIAM.

John B. McAlpin, Chief of the Sneads Police Department, appeals the Criminal Justice and Standards Training Commission's final order suspending his law enforcement certification for eighteen months, to be followed by two years' probationary reinstatement. We reverse as to two of the charges, but affirm as to the misuse of official position charge.

Appellant raises a preliminary issue regarding the adequacy of the disciplinary guidelines adopted by the Commission and incorporated into the moral-character rule. We find this issue without merit, but useful to discuss the structure of the moral-character rule. Law enforcement officers are required to maintain good moral character. § 943.1395(7), Fla. Stat. (2006). Florida law requires the Commission to adopt disciplinary guidelines for failure to maintain good moral character. § 943.1395(8), Fla. Stat. (2006). The Commission has promulgated the moral-character rule, which directly adopts various criminal statutes as actions which constitute “failure to maintain good moral character.” Fla. Admin. Code R. 11B–27.0011(4). As required by the statute mentioned above, the Commission has set forth disciplinary guidelines for each category of offense (e.g., felony, misdemeanor, etc.) and for certain acts within each category (e.g. grand theft, misuse of official position, etc.). Fla. Admin. Code R. 11B–27.005. We find that the Commission's rules, as raised in the context of this case, provide adequate notice of potential discipline.

On January 10, 2011, the Commission filed an amended administrative complaint against Appellant for failing to maintain good moral character because of alleged acts of witness tampering, perjury, and misuse of official position or any lesser included offenses. The charges stemmed from Appellant's investigation into sexual abuse allegations made by a child against Shelly Simpson, who was the child's stepfather, an employee of the City of Sneads, and a friend of Appellant.

On the night of the child's initial sexual abuse report, Appellant stated to Department of Children and Families (DCF) investigator Amy Bates that he knew the suspect and that the allegations sounded out of character for Simpson. A few weeks into the investigation, Appellant conducted a lengthy interview with the alleged victim. During the interview Appellant repeatedly told her that he believed she was lying, that it was “okay to make this right,” and that he could get her the help she needed. He also asked her how she would feel if her younger brother made similar accusations against her. Appellant's investigation was eventually taken over by the Jackson County Sheriff's Office, and although charges were filed against Mr. Simpson, he was acquitted. At some point during the investigation, the alleged victim's grandfather complained and the Florida Department of Law Enforcement (FDLE) began investigating the case as a disciplinary matter.

FDLE's investigation resulted in a lengthy interview of Appellant, in which he was questioned on various details of how he handled the sexual abuse allegations. During the interview, Appellant was asked whether he was notified by DCF investigator Amy Bates of potential additional victims.

Appellant responded he could not recall:

FDLE Investigator: Did Amy Bates ... ever attempt to contact you with information, or additional information, concerning additional victims?

Appellant: No

FDLE Investigator: Did they ever call you on February 14th?

Appellant: Not to my knowledge. It is not noted here. The only time I heard about additional victims was way later after this when the Sheriff's department was investigating this there was some victim from years ago that lived somewhere else.

FDLE Investigator: Do you recall getting a phone call from Amy Bates ... on or about February 14th at 11:33?

Appellant: No sir, I do not recall that.

....

FDLE Investigator: Am I correct in understanding that you are denying that you ever got any information from ... Amy Bates regarding additional witnesses?

Appellant: Witnesses?

FDLE Investigator: Witnesses and/or victims.

Appellant: I do not recall getting any information from any of them concerning this. After they provided this medical report, this doctor's report, I don't recall any other significant conversations with any of them. No.

The complaint asserted that Appellant was in violation of the moral character rule governing law enforcement officers through violation of sections 914.22(1) (witness tampering), 837.012(1) (perjury), and 112.313(6) (misuse of official position), Florida Statutes, or any lesser included offenses, and that an appropriate penalty should be imposed in accordance with section 943.1395(7). Appellant requested a formal hearing, and the matter was transferred to the Division of Administrative Hearings. A formal hearing was held before an Administrative Law Judge (ALJ), where the parties presented witness testimony and evidentiary exhibits. Following the formal hearing, the ALJ issued a recommended order.

The ALJ found the following facts: that the alleged abuse was reported on January 24, 2007; Bates informed Appellant of possible additional victims on February 14, 2007; Appellant interviewed the alleged victim on February 22, 2007, for more than two hours; the interview seemed more like a suspect interrogation with Appellant trying to persuade the alleged victim to change her testimony; Appellant made clear he thought the alleged victim was lying and told her that she needed to set things right and get long-term counseling for her issues; Appellant stated during his interview with the FDLE investigator that he was not aware of other possible victims, that this statement was false, and that Appellant knew it was false when he made it; Appellant failed to maintain contact with DCF personnel, failed to collect evidence, and failed to further investigate inconsistencies in the alleged victim's story; and to the extent Appellant conducted an investigation, he did so with the goal of undermining the alleged victim allegations. The ALJ also twice found that Appellant did not believe alleged victim: “In short, from a review of all of the evidence presented in this case, it appears that [Appellant] decided early on that [the alleged victim] was not telling the truth;” and “It was clear that [Appellant] did not believe her story and was determined to get her to change it.”

Based on the findings, the ALJ concluded that the Commission had proven by clear and convincing evidence that Appellant had violated sections 914.22(1), 837.012(1), and 112.313(6), thereby violating section 943.1395(7) and Rule 11B–27.0011(4)(a) and (b). The ALJ also hedged her findings on witness tampering by finding in the alternative the lesser included charge of witness harassment. For failing to maintain good moral character as required by section 943.1395(7), the ALJ recommended that the Commission suspend Appellant's certification for eighteen months, followed by two years of probation. The Commission thereafter issued a final order adopting the ALJ's findings of fact, conclusions of law (with very slight modification), and proposed penalty.

Administrative conclusions of law are subject to de novo review. Parlato v. Secret Oaks Owners Ass'n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). The decision is subject to reversal if the agency has misinterpreted the applicable law. Payne v. City of Miami, 52 So.3d 707, 735 (Fla. 3d DCA 2010). This Court has the statutory authority to “set aside agency action” if it finds that the agency “has erroneously interpreted a provision of law and [that] a correct interpretation compels a particular action.” § 120.68(7)(d), Fla. Stat. (2014). The appellate court on review is guided by the true nature of the finding and not whether the ALJ labeled it as a finding of fact. Pillsbury v. State, Dep't. of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999). An ALJ's findings of fact must be based upon competent, substantial evidence. § 120.68(7)(b), Fla. Stat. (2014). Where there is no competent, substantial evidence to support a finding of fact that underpins a charge, the charge must be dismissed. Pic N' Save Cent. Fla., Inc. v. Dep't of Bus. Regulation, 601 So.2d 245, 256 (Fla. 1st DCA 1992).

The common thread for the witness...