STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3311

)

MARY A. JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on December 11, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Kim K. Seavey, Esquire

and Martin Pedata, Esquire Tower Place - Suite 525 1511 N. Westshore Boulevard Tampa, Florida 33607-4505

STATEMENT OF THE ISSUES

Whether or not Respondent failed to maintain the qualifications required of a correctional officer by failing to maintain good moral character, to wit, unlawfully and knowingly aiding and abetting an inmate confined at the Zephyrhills Correctional Institution to attempt to escape from such confinement on or about September 23, 1987, 1/ and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to discipline the correctional officer certification of Respondent, Mary A. Jackson, on June 9, 1989, for allegedly failing to maintain the qualifications required of a law enforcement officer to have good moral character in violation of Sections 943.13(7) and 943.1395(5) and (6), Florida Statutes. Thereafter, the matter was transferred to the Division of Administrative Hearings for the

assignment of a Hearing Officer to conduct a formal hearing. Following completion of discovery, the matter was noticed for hearing and was continued on three occasions, twice by Petitioner and once at Respondent's behest.

At the hearing, Petitioner presented the testimony of inspector Tony Perez, Major Sam Hill, Lt. R. Mathis, Lt. L. Roberts, Sgt. R. Wolfe, Lt. C. W. Hutto and inmate Robert D. Bridges. Respondent testified on her behalf and presented the testimony of Nathaniel Everett and James Robinson. Following the hearing, the parties were afforded leave through March 7, 1991, to submit proposed findings of fact and conclusions of law. The parties have filed proposed memoranda which were considered in preparation of this Recommended Order.

Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Respondent, Mary A. Jackson, was trained and employed as a police officer by the Valdosta Georgia Police Department, a position she held from 1979 to 1985. Respondent relocated from Georgia to Florida during 1986.

   
   

2. Respondent was certified as a correctional officer by the Criminal Justice Standards and Training Commission (Petitioner) on June 16, 1986 and was issued certificate number 41-86-502-03.

   
   

3. During times material hereto, Respondent was employed by the Florida Department of Corrections as a correctional officer and was assigned to Zephyrhills Correctional Institution (ZCI).

   
   

4. During September 1987, Robert Bridges and Charles Jeffrey were inmates incarcerated at ZCI residing in the "E dormitory".

   
   

5. On approximately September 12, inmates Bridges and Jeffrey began discussing plans for an escape from ZCI. Their initial plan was to meet in the prison chapel and change out of their prison uniforms into street clothing which Respondent would provide. They would then mingle with prison visitors and exit the gate posing as visitors. This was to be done at a time when Respondent was in control of gate access.

   
   

6. Inmate Bridges observed a personal relationship between inmate Jeffrey and Respondent during September 1987. This was evidenced by Respondent's visits with Jeffrey in the dorm for unusually long periods of time and their utilization of a method of communication by flashing lights at one another.

   Also during this period, inmate Bridges observed Jeffrey with a photo of Respondent dressed in a bikini bathing suit. Bridges and Jeffrey's initial plan was scuttled and they in turn agreed on a second escape plan whereby Respondent would provide them with a key to an exit door of "E" dorm. This door was nearest the fence and their plan was to exit the door under cover of darkness and scale the fences at a time when Respondent would be the only guard on that portion of the fence. Respondent and Bridges discussed this plan although Respondent expressed apprehension about going through with it.

   
   

7. On September 22, inmate Bridges observed inmate Jeffrey and Respondent tossing an object back and forth to one another across a fence. Respondent

   stood outside the fence and Jeffrey stood inside the compound during this exchange. Bridges and Respondent also openly flirted with each other. For those reasons, Bridges felt that this behavior compromised the secrecy of the escape plan and he decided to back out.

   
   

8. Although Bridges initially intended to attempt to escape with Jeffrey, he abandoned the plan and instead informed ZCI's authorities. Bridges was convinced that the escape would fail, resulting in the possibility of additional prison time beyond that which he was already serving. Bridges was also apprehensive that if he failed to report the plan and merely declined to participate, inmate Jeffrey would unsuccessfully attempt the escape and when it failed, Jeffrey would implicate him as a co-conspirator and he would suffer identical consequences for not divulging the plan to ZCI's security staff.

   
   

9. On September 23, inmate Bridges requested a meeting with Lt. Wayne Hutto, an investigator at ZCI. Bridges first discussed the escape plans with Lt. Hutto and he thereafter reported the same information to Major Sammy Hill, head of security at ZCI.

   
   

10. After discussing the escape plan with Hill and Hutto, they instructed inmate Bridges to go forward with the plan and to accept any keys given him by Respondent.

    
    

11. Inmate Bridges was also instructed to give a prearranged signal when he received the key whereupon a correctional staff member would confiscate it. Inmate Bridges concealed his cooperation with ZCI authorities from inmate Jeffrey and the Respondent.

    
    

12. During the evening of September 23, inmate Jeffrey reported to the prison chapel where he was assigned as chapel clerk. Jeffrey met Bridges in the chapel's office.

    
    

13. On that day, Respondent reported to duty and was assigned to work in the institution's gatehouse control room with Sgt. Rhodene Mathis, the control room supervisor.

    
    

14. Throughout the evening on September 23, Respondent appeared nervous and she was preoccupied with matters other than her work. As example, Sgt. Mathis assigned her to type some forms. Mathis examined the forms at a time when they should have been completed and discovered that Respondent had not started her assignment.

    
    

15. Respondent telephoned the chapel from the control room approximately three times between her arrival at 4:00 p.m. and 7:25 p.m. On each of these occasions, Bridges would answer. Respondent in each case, asked Bridges to speak with "Nikki" whereupon Bridges gave the phone to Jeffrey. During one of the phone calls, Sgt. Mathis was out of the control room. When she returned, Respondent abruptly ended the call to Jeffrey.

    
    

16. During one of the calls, Jeffrey told Respondent that he wanted the key and to let him and Bridges know when Sgt. Mathis was gone so that Bridges could come over and get the key from her.

17. Sgt. Mathis departed the control room leaving Respondent alone at approximately 7:25 p.m. Her stated purpose in leaving at this time was to check on inmates in the institution's fire station. Upon her departure, Respondent immediately called the chapel and informed Bridges and Jeffrey that she was alone.

    
    

18. Inmate Bridges walked to gatehouse from the chapel and Respondent, contrary to normal practice, released the remote gate lock mechanism and admitted inmate Bridges into the gatehouse without him asking, in advance, to declare his business in the gatehouse.

    
    

19. Once inside the gatehouse, inmate Bridges made his way to the area immediately outside the control room. Once Respondent observed inmate Bridges from her position inside the control room, she looked to see if anyone was watching her. Respondent wrapped a key in a paper napkin and passed it to inmate Bridges through a security drawer.

    
    

20. The key, identified as RE141-307, was the key which had been stored in a lock box in "E" dormitory. It would open the rear exit door of "E" dormitory and would assist inmates Bridges and Jeffrey in making a night escape over the fence behind "E" dormitory. This was a key which ordinarily an inmate of ZCI would be unable to obtain. As a correctional officer, Respondent had access to the key.

    
    

21. Bridges took the key that Respondent wrapped in the napkin, placed it in his pocket and exited the gatehouse. Once outside, inmate Bridges gave a prearranged signal to Sgt. Levy Roberts, who had been designated to assist in aborting the plan by Major Hill and Lt. Hutto. Upon seeing the signal, Sgt. Roberts approached inmate Bridges and retrieved the key and napkin from Bridges. Sgt. Roberts handcuffed inmate Bridges and led him to "E" dormitory. Soon thereafter, Respondent learned that inmate Bridges had been intercepted by Sgt. Roberts. Upon learning of Bridges' interception, Respondent exhibited an unusual amount of curiosity as to the nature of Bridges interception.

    Respondent called a fellow officer and requested permission to leave her post to ascertain why Bridges was being held by Sgt. Roberts. This was an extraordinary request under the circumstances. Respondent's concern was her complicity in the escape plan.

    
    

22. As agreed, Sgt. Roberts immediately telephoned Major Hill and Lt. Hutto and advised them that he had retreived the key from Bridges. Thereafter, Sgt. Roberts approached the gatehouse and signaled to Sgt. Mathis that he had recovered the key. Respondent, who was still in the gatehouse, immediately asked Sgt. Mathis for permission to leave her duty station.

    
    

23. Later during the evening of September 23, Respondent was questioned by Major Hill and Lt. Hutto. Respondent provided a statement voluntarily without any promises, threats or coercion from either Hill or Hutto.

    
    

24. During her statement, Respondent initially denied any involvement with Jeffrey or giving Bridges a key. However, later during her statement Respondent admitted giving Jeffrey the number of a pay phone located near her home and to receiving at least two personal calls from Jeffrey at the pay phone. Respondent admitted to accepting a collect call from Jeffrey on her home phone and she paid the tolls for the two calls which were made from Jeffrey to her at a pay station near her home. Also, Respondent admitted having previously discussed a plan for inmates Jeffrey and Bridges to escape involving the key to exit from "E"

    dormitory. Respondent ultimately admitted allowing Bridges to take a key from a ring located in the pass-through drawer in the guardhouse control room.

    
    

25. At approximately 11:00 on September 23, Respondent returned to the gatehouse control room whereupon Sgt. Mathis asked her what she had done. Respondent replied that she had "really screwed up" and began crying. Upon further inquiry by Sgt. Mathis, Respondent told her that she had given Bridges a key because her safety and that of her children had been threatened by the inmates at ZCI.

    
    

26. Although Respondent had confided in Sgt. Mathis of some personal problems prior to that time, she did not previously discuss any threats to Sgt. Mathis.

    
    

27. On September 25, Tony Perez, a Department of Corrections prison inspector, interviewed Respondent. Respondent was advised of her constitutional rights under the Miranda decision and she agreed to answer questions voluntarily. Inspector Perez did not make any promises nor did he threaten or coerce Respondent to provide him a statement. During the early stages of the interview, Respondent related that she had three children, was divorced and that inmate Jeffrey asked her to assist him in escaping from ZCI such that he could accompany her to the Bahamas. During that statement, Respondent claims that she told inmate Jeffrey that she would not help him escape and that he could "get out on [his] own." (Petitioner's Exhibit 3, page 9.)

    
    

28. Respondent admitted giving inmate Jeffrey the number of a pay telephone, thereafter receiving calls from him and discussing his aspirations to escape from ZCI. During Perez' interview of Respondent, she admitted that inmate Jeffrey asked her to get a "main key" and provide it to him. She also related other escape plans that she and inmate Jeffrey discussed. Respondent related receiving telephone calls from Jeffrey while he was assigned to work in the institution's chapel.

    
    

29. Respondent also described giving inmate Bridges a napkin at the time she gave him a key from the sliding security pass-through drawer of the control room. (Petitioner's Exhibit 3, pages 23-25.) Although Respondent initially maintained that if inmate Bridges took a key away from the control room, this was done without her knowledge, she finally conceded that she knew Bridges had taken a key, but insisted that it was a key from one that she randomly selected and removed from ring number 4. A subsequent audit of ring 4 disclosed no missing keys. Respondent also admitted that she phoned a fellow inmate about inmate Bridges interception by Sgt. Roberts.

    
    

30. At the conclusion of the Respondent's interview with inspector Perez, she resigned her position as a correctional officer at ZCI. During her resignation, Respondent told Major Hill that she had made a big mistake and had ruined her career. Respondent cried uncontrollably and threatened suicide. She ultimately regained her composure and left the institution.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

32. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

33. The authority of the Petitioner is derived from Chapter 943, Florida Statutes.

    
    

34. Section 943.13(4), Florida Statutes, establishes the minimum qualifications for correctional officers including the requirement that they have a good moral character as determined by a background investigation under procedures established by the Commission. Likewise, Section 943.1395(5), Florida Statutes, requires that the Commission revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)- (10),....

    
    

35. Sections 944.40 and 777.011, Florida Statutes, prohibit aiding or abetting a prisoner confined at a state prison in escaping or attempting to escape from such confinement. This offense is a felony crime.

    
    

36. Petitioner established, by clear and convincing evidence, that on September 22, 1987, Respondent knowingly provided inmate Robert Bridges with a prison dormitory exit key with the intention and expectation that he would utilize it to attempt to escape from the institution in the company of inmate Charles Jeffrey. 2/

    
    

37. The Respondent's misconduct, as found in the paragraph next above, constitutes a violation of the good moral character standard required of correctional officers within the purview of Section 943.13(7), Florida Statutes.

    
    

38. Respondent's violation of the required moral character standard is synonymous with the commission of a felony offense and therefore violates the moral character standard as defined by Rule 11B-27.0011(4)(a), Florida Administrative Code. Specifically, Respondent committed an act which constitutes a violation of Sections 944.40 and 777.011, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's law enforcement certificate number 41-86-502-03.

RECOMMENDED this 27th day of March, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

27th day of March, 1991.

ENDNOTES

1/ Except as noted, all dates are in 1987.

2/ Respondent's claim that she was coerced into confessing to give the key to Major Hill was not credible based on her extended law enforcement career and her knowledge that, if discovered, her complicity in the above-found unlawful acts would have adverse consequences. Her confession was given voluntarily without any promises, threats or coercion.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Kim K. Seavey, Esquire Martin A. Pedata, Esquire Tower Place - Suite 525

1511 North Westshore Boulevard Tampa, Florida 33607-4505

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEM1NT

CRIMINAL JUSTICE STANDARDS AND TRAINING

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

-vs- CASE NUMBER: C-1365

DOAH CASE NUMBER: 89-3311

MARY JACKSON FLAGG,

Certificate Number: 41-86-502-03,

Respondent.

/

FINAL ORDER

The above styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the ("Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public hearing on July 25, 1991, in Naples, Florida, upon consideration of the Recommended Order of the Hearing Officer entered herein. A transcript of the proceeding is available, if necessary. Respondent was not present but represented by counsel at the proceedings.

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer. The exceptions to the Hearing Officer's findings filed by the Respondent are DISMISSED as merely contradictory to the recommended findings, as unsupported by the record, and for those reasons cited by the counsel for the Petitioner at the proceedings which are hereby approved, adopted and incorporated herein by reference.

CONCLUSIONS OF LAW

Having reviewed the Recommended Conclusions of Law and the exceptions filed thereto, the Commission adopts the Hearing Officer's conclusions of law which are attached hereto and fully incorporated herein by reference. The aforementioned facts found by the Hearing Officer and adopted by the Commission do not support the exceptions filed by the Respondent to the Hearing Officer's Recommended Conclusions of Law; said exceptions are accordingly DISMISSED.

There is competent and substantial evidence to support the Commission's findings and conclusions.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent, Mary Jackson Flagg's certification as a Law Enforcement Officer, Certificate Number: 41-86-502-03, is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date of this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 18 day of September, 1991.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

EDWARFD M. SPOONER, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to MARY A. JACKSON, 10506 North Hamner Street, Tampa, Florida 33612, by U.S. Mail on or before 5:00 P.M., this 18th day of September, 1991.

cc: All Counsel of Record

Docket for Case No: 89-003311

Orders for Case No: 89-003311