Florida/Georgia Personal Injury & Workers Compensation

...In this case, section 943.13(7), Florida Statutes (1989), which establishes the minimum qualifications for correctional officers, requires that they "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." As properly found by the hearing officer, section 943.1395(5)-(6) establishes a range of penalties, ranging from the revocation of certification to the issuance of a reprimand, which the Commission may impose on correctional officers found not to have maintained a good moral character....

...t egregious." We find that the Criminal Justice Standards and Training Commission complied with the requirements of section 120.57(1)(b)10 and, in rejecting the recommended penalty, properly increased the penalty within its statutory authority under section 943.1395(5)-(6)....

...Department of Professional Regulation, Division of Real Estate, 568 So.2d 970 (Fla. 2d DCA 1990), to the extent they conflict with this opinion. It is so ordered. SHAW, C.J., and McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] Art. V, § 3(b)(4), Fla. Const. [2] Section 943.1395(5)-(6), Florida Statutes (1989), reads, in pertinent part, as follows: (5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of s....

...igation and discipline before the Criminal Justice Standards and Training Commission or through WPBPD internal proceedings. The Criminal Justice Standards and Training Commission is the professional board that regulates law enforcement officers. See § 943.1395, Fla. Stat. Section 943.1395 establishes standards for law enforcement employment, certification, revocation, suspension and investigation. See id. Section 943.1395(5), Florida Statutes, provides: (5) The employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s....

...943.13(4) or (7), the employing agency must submit the investigative findings and supporting information and documentation to the commission in accordance with rules adopted by the commission. The commission may inspect and copy an employing agency's records to ensure compliance with this subsection. Id. (emphasis added). Section 943.1395(7), Florida Statutes, provides: (7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s....

...depending on the charging document and the evidence. Element 3g: See s. §§ 943.10(1), (2), (3), (6), (7), (8), (9), Fla. Stat., for the definition of a law enforcement officer, correctional officer, or correctional probation officer who must be either certified pursuant to s. § 943.1395, Fla....

...In the instant situation, the suspended officer may not make arrests, may not carry a gun and has been relieved of all police powers associated with carrying out his duties as a law enforcement officer for the city. While the suspended officer apparently remains certified pursuant to section 943.1395 , Florida Statutes, he may not exercise any police powers during his suspension....

...nothing precludes an officer who is the subject of an alleged violation occurring after the investigation is complete from filing an internal affairs complaint against the investigator or agency official who committed the violation. See also § 943.1395(6)(a), Fla....

with certain exceptions not relevant herein. Section 943.1395, F.S., as amended by ch. 86-187. If an auxiliary

A. Butterworth Attorney General RAB/tls 1 Section 943.1395, F.S., contains provisions for the certification

...The hearing officer’s findings of fact noted that Farrow “continues to work as a guard at Florida State Prison. There was no indication that petitioner intends to take any action affecting Mr. Farrow’s certification as a law enforcement officer.” The hearing officer concluded as a matter of law that according to section 943.1395(6), Florida Statutes (Supp.1988), “petitioner is authorized (but not required) to take action ranging from a reprimand to suspension.” The hearing officer .made the following recommendation: “Particularly in light of the treatment petitioner has accorded Mr....

...rimand the respondent.” The Assistant General Counsel for the Commission filed exceptions to the recommended order. The exceptions were (1) the conclusion of law that the penalty range was from reprimand to suspension is incorrect because sections 943.1395(5)....

...Criminal Justice Standards and Training *366 Comm’n, 577 So.2d 638 (Fla. 1st DCA 1991) (citing Bernal v. Department of Professional Regulation, 517 So.2d 113 (Fla. 3d DCA 1987), approved, 531 So.2d 967 (Fla.1988)). The Commission answers that it did not abuse its discretion by interpreting subsections 943.1395(5) and (6) to authorize revocation of an officer’s certification for a violation of section 943.13(7), especially since F.A.C....

...t with the seriousness of the offense. We do not know and will not presume whether the hearing officer would have recommended a reprimand if he had known the penalties included revocation. Other permissible penalties include retraining or probation. Section 943.1395(6), Florida Statutes (Supp.1988)....

...on, you have written on the commission's behalf to request my opinion on substantially the following questions: 1. What is a "completed report of the disciplinary or internal affairs investigation from the employing agency" as that phrase is used in section 943.1395 (6)(a), Florida Statutes? 2....

...in the Department of Law Enforcement 1 and is the body charged with the responsibility to "[e]stablish uniform minimum employment standards for the various criminal justice disciplines" and "[c]ertify, and revoke the certification of, officers[.]" 2 Section 943.1395 (1), Florida Statutes, provides that the commission certifies, pursuant to procedures established by administrative rule, "any person for employment or appointment as an officer[.]" As required by this section, the commission is also...

...Rule 11B-27.004 , Florida Administrative Code, adopted by the Florida Department of Law Enforcement, outlines the procedures for a probable cause determination by the commission and states: "At the conclusion of the preliminary investigation and when the reports and documents are received as directed by Sections 943.139 and 943.1395 , F.S., a determination of probable cause shall be made before the Commission initiates proceedings to take disciplinary action against the certification of an officer." Section 943.139 , Florida Statutes, requires an employing agency to imm...

...etirement, or voluntary or involuntary extended leave of absence of the officer. A copy of the completed report of the disciplinary or internal affairs investigation must be forwarded to the commission for a probable cause determination. Pursuant to section 943.1395 (6)(a), Florida Statutes, the commission is required to revoke the certification of any officer who is found not to be in compliance with these statutory requirements or who intentionally executed a false affidavit: "The commission s...

...n of its investigation of a complaint begins to run after the completed report is received. My research has revealed no case law on this matter, nor have you brought any to my attention. This language was added to the statute through an amendment to section 943.1395 , Florida Statutes, in 1995. 8 Legislative history surrounding the adoption of this amendment indicates that the Legislature intended that "any investigation by the commission related to the termination of an officer must be completed within 6 months[.]" The amendment to section 943.1395 was described as follows: "Section 3 amends s. 943.1395 , F.S., to require the commission to complete an investigation within 6 months when the investigation may result in the revocation of an officer's certification....

...." 9 One of the sponsors of the bill, Representative Arnall, advised a House committee hearing the bill that "this also has a limitation for 6 months for the investigation — in other words, you can't continue that process forever and ever." 10 Based on the language of section 943.1395 (5), Florida Statutes, when read together with Rule 11B-27.004 , Florida Administrative Code, and the clear intent of the Legislature that this process be conducted in a timely manner, it is my opinion that a "completed report of the disciplinary or internal affairs investigation from the employing agency" as that phrase is used in section 943.1395 (6)(a), Florida Statutes, refers to the report submitted by the employing agency to the Criminal Justice Standards and Training Commission pursuant to section 112.533 (2)(a), Florida Statutes....

...11 Question Two You have also asked whether the Criminal Justice Standards and Training Commission is authorized to take action against an officer's certification if it has not completed its investigation within the six-month time period provided in section 943.1395 (6)(a), Florida Statutes....

...Officers must obey the statutes until a court with appropriate jurisdiction determines otherwise. 13 Finally, if any reasonable doubt exists as to the lawful existence of a particular power that is being exercised, the further exercise of the power should be arrested. 14 Section 943.1395 (6)(a), Florida Statutes, specifically provides that "[a]ny investigation initiated by the commission pursuant to this section must be completed within 6 months after receipt of the completed report of the disciplinary or internal af...

...guage is plain and without ambiguity, it fixes legislative intent and interpretation and construction are not needed. 15 Thus, it is my opinion that upon receipt of a completed report from the employing agency or Governor's office as provided for in section 943.1395 (6)(a), Florida Statutes, the Criminal Justice Standards and Training Commission must complete its investigation within a six month period....

...I would note, however, that Florida courts have held that an agency's failure to meet procedural benchmarks such as investigation deadlines will not prevent disciplinary action unless the delay has prejudiced the employee. 16 If the limitations prescribed by section 943.1395 (6)(a), Florida Statutes, do not provide adequate time for investigation, the commission may wish to work with the Legislature to amend these statutorily prescribed limits....

...pril 25, 1995. The statute also makes provision for investigation of "verifiable complaints" and establishes a 1 year time line for those investigations. 10 CS/HB 491, Tape Recording, House Finance Tax Committee Meeting, April 18, 1995. 11 And see , s. 943.1395 (6)(a), Fla....

firefighter training and certification. 5 Section 943.1395, Fla. Stat., provides for the Criminal Justice

...Is a police report of the criminal investigation of a police officer a public record if the investigation has been concluded and the State Attorney has decided to prosecute? 4. Is a police report of the criminal investigation of a police officer confidential under section 943.1395 (6)(b), Florida Statutes, if the investigation has been concluded and a copy has been forwarded to the Police Standards and Training Commission? 5....

...A police report of the agency's criminal investigation of an officer is a public record after the investigation has been concluded regardless of whether a copy of the report is forwarded to the Criminal Justice Standards and Training Commission pursuant to section 943.1395 , Florida Statutes....

...riminal investigative information." 6 Alternatively, you ask whether the police report would be confidential as maintained by the police department after a copy has been forwarded to the Criminal Justice Standards and Training Commission pursuant to section 943.1395 , Florida Statutes (1994 Supp.). This section sets forth requirements for certification for employment or appointment and also addresses revocation of the certification of officers. Section 943.1395 (5), Florida Statutes (1994 Supp.), provides that "[t]he employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s....

...ion in accordance with rules adopted by the commission. Once the commission receives this information it is charged with pursuing an independent investigation to determine whether grounds for revocation of certification exist. 8 Subsection (6)(b) of section 943.1395 , mandates the confidentiality of certain information received by or developed by the Criminal Justice Standards and Training Commission in investigating an officer's conduct....

...termination as to probable cause has been made or until the investigation becomes inactive. . . . Again, the statute contemplates the confidentiality of information held by or developed by the commission in the course of an investigation. Nothing in section 943.1395 would extend confidentiality to this information when it is in the possession of entities other than the Criminal Justice Standards and Training Commission. However, while section 943.1395 (6)(b), Florida Statutes (1994 Supp.), would not independently make the police report confidential in the hands of the police department, the prosecution of the case by the State Attorney's office may, as discussed above, indicate th...

...s had such record sealed or expunged shall not be deemed ineligible for employment or appointment as an officer. * * * (7) Have a good moral character as determined by a background investigation under procedures established by the commission. 8 See, s. 943.1395 (6), Fla....

...ines 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....

...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)....

...nd 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), *420 837.012(1), and 112.318(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....

WENTWORTH, Judge. Appellant seeks review of a Criminal Justice Standards and Training Commission order by which his certification as a correctional officer was revoked pursuant *391 to sections 943.1395(5) and 943.13(4), Florida Statutes....

...a to a felony, improperly converted his plea into a conviction. He further contends that these statutes violate constitutional principles of separation of powers and substantive due process. We find that the Commission’s interpretation of sections 943.1395(5) and 943.13(4) is a permissible agency construction, as the state may legitimately bar from employment as correctional officers those who plead guilty or nolo contendere to felonies....

...nolo conten-dere to the felony of aggravated assault. The trial court withheld adjudication of guilt. Appellee alleged in its complaint that appellant was ineligible to hold a certificate as a correctional officer pursuant to sections 943.13(4) and 943.1395(5), Florida Statutes....

...not eligible for expunction because he had prior adjudications of guilt for misdemeanor offenses. Following a vote by members, appellee entered an order revoking appellant’s certification. Appellant argues that the commission’s interpretation of section 943.1395(5), providing that the commission “shall revoke the certificate of any officer ......

...-13(4). We disagree. A plea of nolo conten-dere or guilty is not evaluated under section 943.13(4) as conclusive evidence of the commission of a wrongdoing. Instead, entry of the plea itself creates noncompliance with section 943.13(4), which, under section 943.1395(5), results in a revocation of certification....

...Southeast Volusia Hospital District, et al., 438 So.2d 815 (Fla.1983), cert. denied, 466 U.S. 901 , 104 S.Ct. 1673 , 80 L.Ed.2d 149 (1984). We find the Commissioner’s interpretation of these statutes is not clearly erroneous. As to appellant’s separation of powers argument, the foregoing interpretation of section 943.1395(5) is that it states a compulsory ground for ineligibility for certification under section 943.13(4) and does not provide that entry of a nolo plea to a felony is conclusive evidence of the commission of a wrongdoing....

...“continued employment or appointment” as an officer); § 943.139, Fla. Stat. (requiring an employing agency to “immediately notify” the Criminal Justice Standards and Training Commission “of the employment or appointment, or separation . . . of any” law enforcement officer); § 943.1395, Fla....