STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4746

)

DAVID G. DELISLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 11, 1997, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Mark P. Brewer, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether respondent’s law enforcement certification should be disciplined for the reasons cited in the administrative complaint filed on March 21, 1996.

PRELIMINARY STATEMENT

This matter began on March 21, 1996, when petitioner, Criminal Justice Standards and Training Commission, issued an administrative complaint alleging that respondent, David G. Delisle, a correctional officer, had violated Section 943.1395, Florida Statutes, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer have “good moral character.” More specifically, the complaint alleged that in May and June 1995, while serving as a correctional officer at the Duval County Pre- Trial Detention Facility, respondent improperly gave contraband to inmates on two occasions, received contraband from an inmate on another occasion, and twice engaged in “an unprofessional relationship with an inmate.” For this conduct, the agency proposes to discipline respondent’s law enforcement certificate. At hearing, petitioner voluntarily dismissed one of the two charges that respondent unlawfully gave an inmate contraband.

Respondent disputed these allegations and requested a formal hearing to contest the agency’s proposed action. The matter was referred by petitioner to the Division of Administrative Hearings on October 8, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated October 18, 1996, a final hearing was scheduled on February 11, 1997, in Jacksonville, Florida. At final hearing, petitioner presented the testimony of James M.

Bonner and James Barbour, currently inmates in the prison system; Ruth E. Johns, an employee of the Jacksonville Sheriff’s Office; and Charles F. Wilson, Jr., a corporal with the Jacksonville Sheriff’s Office. Also, it offered petitioner’s exhibit 1, which was received in evidence. Respondent did not appear at final hearing.

There is no transcript of the hearing. Proposed findings of fact and conclusions of law were filed by petitioner on February 27, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Respondent, David G. Delisle, is a certified correctional officer, having been issued Correctional Certificate No. 67615 on August 31, 1992, by petitioner, Criminal Justice Standards and Training Commission (Commission). When the relevant events herein occurred, respondent was employed by the Jacksonville Sheriff’s Office as a correctional officer at the Duval County Pre-Trial Detention Facility (detention facility).

2. In an administrative complaint filed on March 21, 1996, the Commission charged that (a) on May 30, 1995, respondent “engage(d) in an unprofessional relationship with an inmate of said facility, under his supervision;” (b) on May 30, 1995, respondent unlawfully “receive from an inmate . . . an article or

   thing declared to be contraband, to wit: cigarettes and/or rolling paper;” (c) on May 30, 1995, respondent unlawfully “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling tobacco;” (d) on June 17, 1995, respondent engaged in “an unprofessional relationship with an inmate of said facility, under his supervision;” and (e) on June 17, 1995, respondent “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: food.” Respondent disputed these allegations and initiated this proceeding. At final hearing, petitioner voluntarily dismissed item (c).

3. During respondent’s tenure as a correctional officer at the detention facility in 1995, James M. Bonner and James Barbour were inmates under his supervision. In May of 1995, respondent approached inmates Bonner and Barbour and offered them tobacco products, including rolling paper, and other considerations if they would “beat up” certain inmates, including one Max Harrison, who were “causing trouble,” for respondent. The purpose of such action was to cause those inmates to transfer out of the cellblock thereby relieving respondent of having to deal with them. In the case of inmate Max Herring, respondent wanted Henning to leave the cellblock because he was allegedly a homosexual.

4. Bonner and Barbour agreed to beat up Herring and other unidentified inmates. On June 19, 1995, Bonner, Barbour and

   several other inmates, tied inmate Herring to a bed with sheets and began striking him with “flip-flops” and shower shoes. Herring suffered abrasions and bruises on his body. Bonner confirmed that, at the request of respondent, several other inmates, none of whom were identified, were also beaten.

5. In return for these favors, respondent provided inmates Bonner and Barbour with extra portions of jail food, extra food brought into the facility from outside establishments, magazines, cigarettes, rolling paper, and radio privileges. Although not specifically identified at hearing, certain "regulations" of the Jacksonville Sheriff's Office prohibit a correctional officer from furnishing such goods and services to inmates, and the introduction of illegal contraband into a jail violates state law.

6. On at least one occasion, respondent received tobacco products and rolling paper from Bonner to give to other inmates. This also violated an unidentified facility rule as well as state law.

   CONCLUSIONS OF LAW

   
   

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

8. Because respondent’s law enforcement certification is at risk, petitioner bears the burden of proving the allegations in the complaint by clear and convincing evidence. See, e.g.,

   Newberry v. Florida Department of Law Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991).

9. The administrative complaint alleges that respondent has violated Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(a) and (c), Florida Administrative Code, by failing to maintain the qualifications in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.

10. By clear and convincing evidence, petitioner has established that respondent (a) engaged in an unprofessional relationship with an inmate, James M. Bonner, by having an oral communication with Bonner intended to facilitate conduct which is prohibited by rule; namely, giving tobacco and rolling paper to inmates, (b) received contraband (cigarettes and rolling paper) from inmate Bonner for the purpose of giving it to another inmate, (c) engaged in an unprofessional relationship with inmate Bonner for the purpose of facilitating conduct which is prohibited by rule, namely, assault and battery, and (d) gave inmate Bonner contraband; namely, food, tobacco, rolling paper and magazines.

11. In the context of the administrative complaint, Rule 11B-27.0011(4), Florida Administrative Code, defines the term “good moral character” as follows:

    1. For the purposes of the 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, as required by Section 943.13(7), F.S., is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

          * * *

          (c) The perpetration by the officer of an act or conduct which constitutes:

          * * *

          1. Having an Unprofessional Relationship with an Inmate, Detainee, Probationer or Parolee, or Community Controllee. An unprofessional relationship is defined as:

             1. Having written or oral communication that is intended to facilitate conduct which is prohibited by Rule Chapter 11B-27, F.A.C.

          * * *

          
          

          Conduct "which is prohibited by Rule Chapter 11B-27, F.A.C." includes assault, battery and the introduction of contraband. See Rule 11B-27.0011(4)(a) and (b), F.A.C.

12. Therefore, perpetrating an act which would constitute a felony offense, whether criminally prosecuted or not, and having an unprofessional relationship with an inmate for the purpose of facilitating conduct which is prohibited by chapter 11B-27, equates to lack of a good moral character under the rule.

13. The evidence shows that respondent introduced contraband into a jail, and received contraband from an inmate, both third degree felonies under Section 951.22, Florida Statutes, and he engaged in an oral communication with an inmate for the purpose of having that inmate commit assault and battery, an act which violates chapter 11B-27. Although respondent's conduct also violated rule 11B-27.0011(4)(b) in that he solicited

    inmates to engage in an act which would constitute assault and battery, the complaint does not charge him with violating that portion of the rule.

14. Rule 11B-27.005(5), Florida Administration Code, prescribes "a range of disciplinary guidelines from which disciplinary penalties will be imposed." For introduction contraband into a jail or prison, and engaging in an unprofessional relationship with an inmate, subsections (a) and

(c) of the rule call for revocation, absent mitigating circumstances. There being no mitigating circumstances present, and given the seriousness of the offenses, revocation is appropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order determining that respondent has failed to maintain good moral character and required by state law and that his law enforcement certificate be revoked.

DONE AND ENTERED this 24th date of February, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997.

COPIES FURNISHED:

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training Commission

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mr. David G. Delisle

5350 Arlington Expressway, No. 3902

Jacksonville, Florida 32211

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-004746

Orders for Case No: 96-004746