STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2937

)

MELVIN J. SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Joseph S. White, Esquire

Tallahassee, Florida No Appearance For Respondent

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on March 13, 1987, in West Palm Beach, Florida. Neither Mr. Simmons nor his lawyer appeared at the hearing, although proper notice of the hearing had been given. The Department submitted proposed findings of fact and conclusions of law after the transcript was filed. The proposed findings of fact of the Department have been substantially adopted in this Recommended Order.

ISSUE

The issue is whether the correctional officer certificate of Melvin J. Simmons should be revoked for lack of good moral character due to having sexual relations with an inmate in the Palm Beach County Jail where Mr. Simmons was employed?

FINDINGS OF FACT

1. Melvin J. Simmons was issued a certificate as a correctional officer by the Criminal Justice Standards and Training Commission on May 30, 1984, certificate 44-84-502-02.

   
   

2. In February 1985, Mr. Simmons and Lidia Gonzalez were employed as correctional officers at the Palm Beach County Jail. Both had attended the Police Academy in the same class.

   
   

3. In February 1985, Pearline Bartee was incarcerated at the jail. As a trustee, Ms. Bartee was able to move about the jail.

   
   

4. Ms. Gonzalez worked in the watchtower at the jail. Simmons approached her to have her arrange a meeting between himself and Bartee in the enclosed stairwell between the first and second floors of the jail. Women inmates were housed on those two floors.

5. Simmons told Gonzalez that he wanted the meeting to engage in sex with Bartee.

   
   

6. Simmons asked Gonzalez to warn him through the intercom system in the watchtower and stairwell if a supervisor approached the stairwell while Simmons and Bartee were together there.

   
   

7. Simmons had two meetings with Bartee in the stairwell and thanked Gonzalez for looking out for him. On both occasions Simmons had sex with Bartee in the stairwell.

   
   

8. Sergeant Michael Tucker of the staff investigation unit of the Palm Beach County Sheriff's Department investigated a rumor that correctional officers had engaged in sex with female inmates.

   
   

9. During the course of the investigation, Tucker received information that Simmons may have been involved in misconduct. On April 23, 1987, Sergeant Tucker and a polygraphist, Aaron Saylor, interviewed Simmons about the allegations of sexual misconduct.

   
   

10. Simmons initially denied the allegations and grew increasingly nervous during the interview. Due to Simmons' demeanor, Tucker told Simmons that he doubted Simmons' truthfulness and was asked to submit to a polygraph examination. Respondent then admitted that he had engaged in intercourse with Bartee in the stairwell on three occasions in February 1985.

    
    

11. Sexual contact between correctional officers and inmates is inconsistent with the employment practice of the Palm Beach County Sheriff's Department.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57, Florida Statutes.

    
    

13. Section 943.13(7), Florida Statutes (1985), requires that law enforcement officers

    
    

    Have a good moral character as determined by a background investi- gation under procedures established by the commission.

    
    

    Section 943.1393(5), Florida Statutes (1985), states that:

    
    

    The commission shall revoke the certification of any officer who is not in compliance with the

    provisions of Section 943.13(1)-(10)....

    
    

14. Repeated sexual intercourse with a jail inmate in a jail stairwell while on duty, although not specifically prohibited by statute or rule, constitutes immoral conduct and proof of a lack of good moral character. Correctional officers are to maintain order and security within a jail, not to take advantage of inmates whose freedom of movement has been restricted by law. Simmons' misconduct shows that he has failed to maintain good moral character as

required by Section 943.13(7), and consequently his certificate should be revoked pursuant to Section 943.1395(5), Florida Statutes (1985).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That certificate 44-84-502-02 issued to Melvin J. Simmons be REVOKED. DONE AND ORDERED this 21st day of April, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2937

All proposed findings of fact have been adopted except Finding of Fact 9 relating to rumors that inmate Bartee may have become pregnant. In light of the evidence that Ms. Bartee, herself, told correctional officer Gonzalez that Bartee was not pregnant, there is no record basis for such a finding.

COPIES FURNISHED:

Joseph S. White, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Mr. Melvin J. Simmons 1412 West 7th Street

Riviera Beach Florida 33404

Marzell Mitchell, Jr., Esquire Harvey Building, Suite 413

224 Datura Street

West Palm Beach Florida 33401

Rod Caswel1, Director

Criminal Justice Standards and Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 86-002937

Orders for Case No: 86-002937