VOLUSIA EXPOSED

FDLE's Moral Character Standards
For Law Enforcement Officers

In the State of Florida, law enforcement and correctional officers' pre-employment back ground investigations are governed by state statutes and administrative codes.

In as far as the statutory mandates, Florida Statutes 943.13(4) restricts convicted felons, and persons convicted for certain misdemeanors from being certified as a law enforcement or correctional officer. This particular statute also restricts individuals that were dishonorably discharged from the US military from serving as a Florida certified officer.

In addition to F.S. 943.13(4), subsection (7) of the same statute authorizes FDLE, though their Criminal Justice Standards and Training Commission (CJSTC), to develop additional procedures and restrictions on whom can serve as a certified law enforcement or correctional officer. These additional restrictions, as memorialized in Florida Administrative Code 11B-27.0011, are commonly known as the CJSTC's Moral Character Standards.

Employing agency, rather than FDLE, conducts background investigations

Under the mandates of the above mentioned Florida Statutes and Administrative Codes, FDLE allows the employing agency to determine whether an applicant for employment meets the minimum moral character standards.

To say that there is an incorrectly perceived "gray" area in making moral character determinations, is a major under statement.

Obviously, it is clear that a convicted felon can not serve as a Florida officer. And that certain misdemeanor convictions would also preclude the individual from law enforcement service. But, it is of interest, that per FAC 11B-27 - that the mere participation in some criminal activity, whether prosecuted or not, would preclude the candidate from passing the moral character standard. In this regard, is where much of the "gray area" can be found.

In particular, we suggest that you pay attention to and (see yellow highlighted area to right of page).

The above listed statutes are illegal drug related statutes.

Therefore, does FAC 11B-27 indicate that admitted violations of F.S. 893.13 and 893.147, whether criminally prosecuted or not, would preclude an individual from serving as a law enforcement or correctional officer?

Apparently, per the below listed records, an individual can have such a criminal history, and still serve as a sworn deputy within the Volusia County Sheriff Department.

FLORIDA STATUTES 943.13(4)&(7)

(4) Not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States. Any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of any felony or of a misdemeanor involving perjury or a false statement is not eligible for employment or appointment as an officer, notwithstanding suspension of sentence or withholding of adjudication. Notwithstanding this subsection, any person who has pled nolo contendere to a misdemeanor involving a false statement, prior to December 1, 1985, and has 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.

FLORIDA ADMINISTRATIVE CODE 11B-27.0011
(Procedures established by the CJSTC Commission)

11B-27.0011 Moral Character. (1) For the purpose of certification, employment, or appointment, pursuant to procedures established by paragraph 11B-27.002(1)(g) and Rule 11B-27.00225, F.A.C., the employing agency is responsible for conducting a thorough background investigation to determine the moral character of an applicant, pursuant to Section 943.13(7), F.S. (2) The unlawful use of any controlled substances pursuant to Rule 11B-27.00225, F.A.C., by an applicant for certification, employment, or appointment, at any time proximate to the submission of application for certification, employment, or appointment, conclusively establishes that the applicant is not of good moral character pursuant to Section 943.13(7), F.S. The unlawful use of any controlled substances specified in Rule 11B-27.00225, F.A.C., by an applicant may or may not conclusively establish that the applicant is not of good moral character pursuant to Section 943.13(7), F.S., depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing in this rule chapter is intended to restrict the requirements of Section 943.13(7), F.S., to controlled substance use only. (3) Upon written request and submission of materials, the Commission shall evaluate the qualification of an applicant to determine compliance with “good moral character” pursuant to this rule section. (4) For the purposes of the Criminal Justice Standards and Training 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 required by Section 943.13(7), F.S., is defined as: (a) The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not. (b) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not: 1. Sections 316.193, 327.35, 365.16(1)(c), (d), 414.39, 741.31, 784.011, 784.03, 784.047, 784.048, 784.05, 784.046(15), 790.01, 790.10, 790.15, 790.27, 794.027, 796.07, 800.02, 800.03, 806.101, 806.13, 810.08, 810.14, 810.145, 812.014, 812.015, 812.14, 817.235, 817.49, 817.563, 817.565, 817.61, 817.64, 827.04, 828.12, 831.30, 831.31(1)(b), 832.05, 837.012, 837.05, 837.055, 837.06, 839.13, 839.20, 843.02, 843.03, 843.06, 843.085, 847.011, 856.021, 870.01, 893.13, 893.147, 901.36, 914.22, 934.03, 944.35, 944.37, and 944.39, F.S. 2. Any principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been committed or completed would have been a felony offense; or 3. The perpetration of an act in any jurisdiction other than the State of Florida, which if committed in the State of Florida would constitute any offense listed in this rule section. (c) The perpetration by an officer of acts or conduct that constitute the following offenses: 1. Excessive use of force, defined as a use of force on a person by any officer that is not justified under Section 776.05 or 776.07, F.S., or a use of force on an inmate or prisoner by any correctional officer that would not be authorized under Section 944.35(1)(a), F.S. The Recommended Response to Resistance and Levels of Resistance, form CJSTC-85, revised February 7, 2002, hereby incorporated by reference, is a reference tool to evaluate use of force. Form CJSTC-85 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Publications/Professionalism-Program-Forms.aspx, or by contacting Commission staff at (850) 410-8615. 2. Misuse of official position, defined by Section 112.313(6), F.S. 3. Having an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controllee. An unprofessional relationship is defined as: a. Having written or oral communication with an inmate, detainee, probationer or parolee, or community controllee that is intended to facilitate conduct prohibited by this rule section; or b. Engaging in physical contact not required in the performance of official duties, and is defined as kissing, fondling of the genital area, buttocks, or breasts, massaging or similar touching, holding hands, any other physical contact normally associated with the demonstration of affection or sexual misconduct as applied to all certifications, which is defined in Section 944.35(3), F.S. c. Engaging in a romantic association with an inmate, detainee, probationer, parolee, or community controlee. “Romantic association” is defined as the exchange of telephone calls, pictures, letters, greeting cards, or any other form of oral or written communication, which expresses feelings or thoughts of affection or the desire to engage in a romantic relationship whether emotional or physical. This subsection shall not apply to an officer who is legally married to an inmate, detainee, probationer or parolee, or community controlee in the community, nor does it apply to any officer who has no knowledge, or reason to believe, that the person with whom the officer has engaged in a romantic association is an inmate, detainee, probationer or parolee, or community controlee. 4. Sexual harassment pursuant to and consistent with decisions interpreting 29 C. F. R. 1604.11, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when the harassment involves physical contact or misuse of official position and when: a. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or b. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or c. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 5. Engaging in oral, anal, or vaginal penetration by, or union with, the sexual organ of another person or engaging in anal or vaginal penetration by any other object while on duty, or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer, and not done for a bona fide medical purpose or in the lawful performance of the officer’s duty. 6. False statements during the employment application process. 7. Conduct that subverts or attempts to subvert the State Officer Certification Examination process pursuant to Rule 11B-30.009, F.A.C. 8. Conduct that subverts or attempts to subvert the Basic Abilities Test process pursuant to subsection 11B-35.0011(1), F.A.C. 9. Conduct that subverts or attempts to subvert the examination process for Commission-approved training at a Commission-certified training school or an employing agency promotional examination process which shall include the following: a. Removing from the examination room any of the examination materials. b. Reproducing or reconstructing any portion of the examination. c. Aiding by any means in the reproduction of any portion of the examination. d. Selling, distributing, buying, receiving, or having unauthorized possession of any portion of a past, current, or future examination. e. Communication with any other examinee during the administration of the examination. f. Copying answers from another examinee, or intentionally allowing one’s answers to be copied by another examinee during the administration of the examination. g. Having in one’s possession during the administration of the examination, any books, notes, written or printed materials, or data of any kind, not supplied as part of, or required for, the test administration. h. Falsifying or misrepresenting information required for admission to the examination. i. Impersonating an examinee. j. Having an impersonator take the examination on one’s behalf. k. Disrupting the test administration. l. Revealing the test questions or other information that would compromise the integrity of the examination. 10. Any overt, conspicuous, or public act of a sexual or simulated sexual nature which is likely to be observed by others. 11. Any willful and offensive exposure or exhibition of his or her sexual organs in public or on the private premises of another or so near thereto as to likely be seen except in any place provided or set apart for that purpose. 12. Willful failure of the agency administrator to comply with Chapter 943, F.S., as it pertains to the Criminal Justice Standards and Training Commission or Commission rules. 13. Intentional abuse of a Temporary Employment Authorization, pursuant to Section 943.131(1), F.S. (d) A certified officer’s unlawful injection, ingestion, inhalation, or other introduction of any controlled substance, as defined in Section 893.03, F.S., into his or her body as evidenced by a drug test in accordance with Sections 112.0455, 440.102, or 944.474, F.S. (5) A certified officer’s failure to maintain good moral character as defined in subsection (4) of this rule section by committing a violation involving perjury or false statement in a court proceeding, shall not include a statement which was recanted. If the violation involving perjury or false statement is alleged to have occurred in the performance of regularly required work duties or the course of an administrative or disciplinary investigation, a certified officer’s failure to maintain good moral character as defined in subsection (4) of this rule section shall not include a statement in which the officer making the statement conceded such statement to be false prior to the employing agency’s conclusion of the internal affairs investigation in which the false statement related to a material fact. For purposes of this subsection, the employing agency’s internal affairs investigation shall be deemed to be at a conclusion upon the investigator’s execution of the statement required by Section 112.533(1)(a)2., F.S. (6) The employing agency shall forward to the Commission the agency’s investigative report pursuant to procedures established in Rule 11B-27.003, F.A.C., when an allegation has been made that an officer has failed to maintain good moral character, as defined in subsection (4) of this rule section, and has been sustained by the employing agency, or an act of conduct by the officer has resulted in the officer’s arrest. The report shall be forwarded immediately upon separation of the officer from employment, or, if the officer is not separated from employment, within 45 days from the date an allegation has been sustained, as set forth in this rule section. (7) Commission staff’s decision to initiate presentation of a case for a Commission Probable Cause Determination shall be based upon the following conditions: (a) Whether the allegations against the officer constitute a violation of subsection (4) of this rule section or Section 943.13(4), F.S.; (b) Whether there is evidence of probable cause to support the filing of a complaint; and (c) Whether a Letter of Acknowledgement is warranted pursuant to subsections 11B-27.004(7)-(11), F.A.C. Rulemaking Authority 943.03(4), 943.12(1) FS. Law Implemented 943.13(7), 943.1395(7) FS. History–New 1-7-85, Formerly 11B-27.011, Amended 7-13-87, 10-25-88, 12-13-92, 9-5-93, 1-19-94, 8-7-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 4-11-04, 11-30-04, 3-27-06, 3-21-07, 6-9-08, 4-16-09, 6-3-10, 5-21-12, 3-13-13.

WHERE THE RUBBER MEETS THE ROAD
THE BACKGROUND INVESTIGATION OF
VOLUSIA COUNTY DEPUTY DAVID HERNICZ

The CJSTC 77 Form
Deputy Hernicz

An employment agency must, upon completion of an applicant's background investigation, submit a CJSTC 77 form to CJSTC / FDLE verifying that applicant was found to be in GOOD MORAL CHARACTER.

We invite you to review Deputy Hernicz's CJSTC 77 form ----------->

We ask you to pay particular attention to his rather extensive arrest history, for criminal charges that include, retail theft, battery, and numerous drug charges.

Further, a local records check appears to support the he was arrested in 1995 for possession of cocaine, a noted alleged violation of F.S. 893.13 (as indicated in pink highlighter - see below).

REMEMBER - according to FAC 11B-27.0011 - a violation of F.S. 893.13, would call into question the moral character of an applicant, regardless of whether the alleged criminal offense was prosecuted or not.

In July 2010, the Volusia County Sheriff Department hired Mr. Hernicz as a Volusia County Deputy. Do you agree with the VCSO, that Mr. Hernicz met the moral character standards for such an appointment?

Volusia County Sheriff Deputy D. Hernicz's
Pre-employment investigative summary
Commonly known as the CJSTC 77 report

In March 2011, Deputy Hernicz resigned from the VCSO. His resignation was NOT attached to any misconduct, as is so indicated in his below FDLE Officer Profile Sheet.

Mr. Hernicz's FDLE law enforcement certification is current until 2015. In short, he could be hired by any law enforcement agency in Florida.

Does Hernicz's Situation Shed Some Light On Why There Are So Many Misconduct Investigations Attached To the Volusia County Sheriff's Department ?

Are other departments, within Volusia County government, also failing to conduct proper background investigations of their officers?

Are law enforcement investigations and the public safety being put at risk?

VolusiaExposed.Com has posted numerous articles referencing the misconduct of several Volusia County Sheriff deputies. A few of these articles can be found below, while other more recent articles can be found on our home page.

We, VolusiaExposed, suspects that the rather high occurrences of misconduct within the VCSO, is directly tied to their refusal to strictly adhere to Florida State mandated procedures while conducting background investigations on applicants.

VolusiaExposed realizes that Sheriff Johnson has over 40 years of law enforcement experience, and that forty years ago, it may have been acceptable to deputize individuals with questionable backgrounds. When Sheriff Johnson started his career in law enforcement, the Florida Department of Law Enforcement was in it's infancy. The Criminal Justice and Standards and Training Commission was not even in existence. So maybe, this is an example where Sheriff Johnson's experience works against him. We suspect that Sheriff Johnson's administration gives little regard to CJSTC law enforcement standards. However, we now live in the 21st century, and the standards of the 1960's or 1970's are no longer acceptable state or community standards.

Is our above stated opinion fair? Does the Sheriff Johnson administration have little regard for CJSTC standards? If this Deputy Hernicz incident was the only known incident, whereas the VCSO failed to follow CJSTC standards, then yes, it would be unfair.

However, the VCSO's failure to adhere to CJSTC is a rather constant theme. We invite you to review two other incidents whereas the VCSO did not initially follow CJSTC mandates. After we, VolusiaExposed.Com brought our concerns to the VCSO's attention, did they comply with CJSTC standards.

FDLE / CJSTC Failures

Sadly, the CJSTC, a subsection of the FDLE, is more part of the problem, then they are part of the solution.

The CJSTC apparently blindly accepts the employing agency's account of whether a law enforcement applicant meets (or in some cases doesn't meet) the minimum moral character standards.

How surprising is this - not really surprising at all, when you factor in that the FDLE could not see any criminal conduct attached to one of their employees charging personal expenses, to include two Carnival Cruises, to her government issued credit card. We invite you to review the events surrounding the Laura Barfield incident.

WFTV Video Article on the Laura Barfield Incident

Are there other Volusia County Departments that suffer
from poor background investigations?

Did a Beach Patrol officer provide false documents (social security card, education documents, etc) in order to secure law enforcement employment? Was the officer even in the country legally?

Did a Volusia County Correctional Officer work twenty years as a convicted felon?

These are just a few examples of the broader problem we here at VolusiaExposed have uncovered. We are certain there are many more, and we intend to expose them. Keep checking back for updates on this situation.

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If you found this article to be thought provoking, we (VolusiaExposed.Com) invite you to review, the below linked, Special Investigative Report, exposing law enforcement corruption with the State of Florida.

SARASOTA HERALD-TRIBUNE'S
SPECIAL INVESTIGATIVE SERIES ON LAW ENFORCEMENT CORRUPTION

by Matthew Doig and Anthony Cormier

Additional concerns surrounding the
Volusia County Sheriff's Department

Questionable In-Custody Deaths
Click Photos

We look forward to your comments on this situation.
Drop us a line to let us know what you think.

EMAIL US

DOES SHERIFF JOHNSON HAVE A SUBSTANCE ABUSE PROBLEM?
Play the above video - and then decide for yourself.
________________________________

Sheriff Johnson claiming that
he does not drink.
(October 2012)

Sex Crimes
and
VCSO Press Releases

The VCSO issued a press release on the Stewart-Marchman molestation incident - but did not issue a press release of a jail rape - why not?

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DID A CONFLICT OF INTEREST
INFLUENCE THE JAIL'S
RAPE INVESTIGATION?

Assistant County Attorney, Nancye Jones handles many of the litigations coming out of the Volusia County jail.

Nancye Jones' husband, VCSO Major Robert Jones, supervises the deputies that investigate possible criminal violations within the county jail.

We have concerns that several criminal investigations have been possibly manipulated, in order to reduce the County of Volusia's civil liability.

Our concern includes this particular in-custody sexual battery investigation, and the below listed situations.

We invite you to review our concerns.

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The Failure of the FMJS Jail Inspection Process, Florida needs to return to the independent FAC 33-8 Inspection Process.

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