STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-4990

)

JOHN H. PITTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this cause on October 14, 1997, by video teleconference. Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, was located in Tallahassee, Florida. The parties and all witnesses were located in Jacksonville, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Gary Baker, Esquire

24 North Market Street, Suite 301A Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 943.13(7), Florida Statutes (1993), and Sections 943.1395(6) and 943.1395(7), Florida Statutes (Supp. 1994), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about August 30, 1995, Petitioner Criminal Justice Standards and Training Commission issued an Administrative Complaint against Respondent John H. Pitts. Said complaint alleged that Respondent had violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, by failing to maintain good moral character.

Respondent requested a formal administrative hearing to contest the allegations in the complaint on September 7, 1995. Petitioner referred this matter to the Division of Administrative Hearings on October 22, 1996.

The parties filed a Response to Initial Order on November 8, 1996. Said response requested that the instant case be consolidated with Criminal Justice Standards and Training Commission v. Richard M. Maloy, Division of Administrative Hearings Case Number 96-4991. On November 12, 1996, the undersigned issued an Order of Consolidation and Notice of Hearing. The consolidated cases were scheduled for hearing on April 22, 1997.

On April 21, 1997, Petitioner filed a Motion for Continuance. The next day, the undersigned issued an Order Granting Continuance and Rescheduling Hearing. Said order scheduled the hearing for July 22, 1997.

On April 21, 1997, Petitioner filed a Motion for Severance relating to Criminal Justice Standards and Training Commission v.

Richard M. Maloy, Division of Administrative Hearings Case Number 96-4991. The undersigned issued an Order Granting Motion to Sever on April 22, 1997.

In July of 1997, Respondent filed a Motion for Continuance.

An order dated July 24, 1997, granted the continuance and rescheduled the hearing for August 28, 1997.

On August 4, 1997, Petitioner filed a Motion for Continuance. An order dated August 8, 1997, granted the continuance and rescheduled the hearing for October 2, 1997. On October 2, 1997, the undersigned granted Petitioner's ore tenus request for a continuance. During a telephone conference

on October 6, 1997, the parties agreed that the hearing could be conducted by video teleconference. On October 9, 1997, the undersigned issued a Notice of Video Hearing and Order of Instructions. Said order scheduled the video hearing on

October 14, 1997.

During the hearing, Petitioner presented the testimony of four witnesses and offered six exhibits which were accepted into evidence. Petitioner offered a seventh composite exhibit consisting of four audio tapes. Respondent did not object to the admission of these tapes into evidence. Petitioner filed the four audio tapes, identified as Exhibit Seven, with the Division of Administrative Hearings on November 5, 1997.

Respondent testified on his own behalf. He presented one exhibit which was not offered into evidence.

The transcript of the proceeding was filed on October 29, 1997. Petitioner timely filed its proposed recommended order on November 10, 1997. Respondent filed an untimely proposed recommended order on November 20, 1997.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent held the following certificates: (a) Correctional Certificate Number 68510, issued on July 1, 1981; (b) Auxiliary Law Enforcement Certificate Number 68509, issued on October 17, 1991; and (c) Law Enforcement Certificate Number 133933, issued on December 17, 1992.

2. On December 13, 1994, Respondent was employed as a correctional officer in the Jails and Prisons Division of the Jacksonville Sheriff's Department.

3. On December 13, 1994, Respondent was working on the west end of the sixth floor of the Pre-trial Detention Facility. On that day, Respondent was working the midnight shift, from

   11:00 p.m. the previous night until 7:00 a.m. that morning.

   
   

4. On the night in question, Officers Richard Maloy,

   
   

   Cecil Matthews, and John Crump were working with Respondent. The supervisor assigned to that wing was Sergeant Evelyn Walker.

5. Inmates are housed in solitary confinement on the sixth floor of the Pre-trial Detention Facility. The inmates are confined in individual cells because they have disciplinary

   problems or have mental health problems. The prisoners are not allowed to exit the cells without supervision of an officer.

6. An electronic motor opens and closes the doors to the individual cells. A pod control officer operates the motor from a panel in the pod control room. Occasionally, the doors to individual cells appear to open or close spontaneously. This occurs about one hour after the electronic motor overheats.

7. Inmate Grosser was confined in cell 36 on the west side of the sixth floor. About 5:30 a.m. on December 13, 1994, the door to Inmate Grosser's cell spontaneously opened due to a malfunction of the electronic motor. Inmate Grosser exited his cell without permission. When a correctional officer directed him to return to his cell, he complied peacefully.

8. About 6:00 a.m. on December 13, 1994, Sergeant Evelyn Walker, Officer Cecil Matthews, Officer John Crump,

   Officer Richard Maloy, and Respondent were in the pod control room of the west side of the sixth floor. They observed Inmate Grosser masturbating through the food flap in the door to his cell.

9. Respondent told Sergeant Walker that he had corrected such behavior when he worked in a state prison. Respondent offered to take care of the situation if Sergeant Walker would leave the area. Sergeant Walker responded in the negative.

10. Shortly thereafter, Sergeant Walker decided to go down to the central floor control room. Sergeant Walker told all four

    officers not to go into cell 36 after she left the area. She repeated the order three times. All of the officers, including Respondent, heard Sergeant Walker's prohibition.

11. As soon as Sergeant Walker left the pod control room, Officers Maloy and Crump put on latex gloves. Officers usually wear latex gloves if they are going to handle inmates or property, or if there might be a possible physical altercation with an inmate.

12. Respondent was aware that Officer Maloy and Officer Crump intended to go into cell 36 to confront Inmate Grosser. Respondent agreed to open the door to the cell for them.

13. Officers Maloy and Crump walked toward cell 36 through several locked doors. Respondent remained in the pod control room. He opened the door to Inmate Grosser's cell as Officers Maloy and Crump approached it. Officer Matthews was in the pod control room standing next to Respondent at that time.

14. When Respondent opened the door, Officer Maloy entered the cell and dragged Inmate Grosser out into the hallway. Inmate Grosser began to resist being touched by the officers.

15. Officer Maloy jumped on the inmate's back and took him to the floor. Officer Crump handcuffed the inmate as he struggled on the floor.

16. The inmate thrashed around on the floor after he was handcuffed. The two officers picked the inmate up and placed him back in the cell on the floor where he continued to struggle. At

    that point, Officer Maloy kicked inmate Grosser in the groin area. Officer Maloy struck the inmate at least twice.

17. Respondent and Officer Matthews were standing next to each other in the control pod room observing the incident while it was occurring. Officer Matthews clearly saw Officer Maloy kicking Inmate Grosser. Officer Matthews did not want to get involved in the altercation; therefore, he left the pod control room to get a cup of coffee.

18. Inmate Grosser continued to thrash around. Officer Maloy and Officer Crump needed a set of restraints for the prisoner. Respondent took a set of leg irons from the control pod room and entered the dorm area.

19. Respondent stood on a table, handed the leg irons to Officers Maloy and Crump, and returned to the control pod room.

20. After Inmate Grosser was subdued, the nurse was summoned to check on him.

21. In the meantime, Sergeant Walker was talking to Sergeant Ratliff in the central floor control room. Officer Matthews volunteered to get Sergeant Walker a cup of coffee, too.

22. Officer Matthews was in the central floor control room with Sergeant Walker when Officer Crump entered the room. Officer Crump's face was red. He was looking for something with which to clean up.

23. Sergeant Walker asked Officer Crump whether the officers had gone into cell 36. Officer Crump replied that they

    had gone into the cell. When he was asked to explain, Officer Crump stated that he went into the cell so that Officer Maloy would not have to go in alone.

24. Sergeant Walker returned to the control pod room. When she arrived, Respondent stated that the door to cell 36 had opened on its own. He stated that Officer Maloy responded in the pod to assist Officer Crump when the inmate came out of his cell toward Officer Crump.

25. Sergeant Walker asked Officer Crump to write an incident report because the incident occurred in his assigned area. The usual procedure is for an officer to at least complete a rough draft of an incident report before the shift change.

26. All four officers were in the pod control room when Officer Crump sat down at the computer to create his rough draft. Officer Maloy assisted Officer Crump in the drafting of the report.

27. During the time that Officers Crump and Maloy were writing the report, Respondent stated to Officer Matthews that they needed to stick together on this incident. Officer Matthews told the others to leave his name out of the report because he did not want to be involved.

28. When Sergeant Walker reviewed the rough draft, she noticed a discrepancy. She remembered Officer Crump telling her that he went into cell 36 so that Officer Maloy would not be alone. The draft report stated that Officer Maloy entered the

    pod to assist Officer Crump. Sergeant Walker informed Lieutenant Going that the report might not be accurate.

29. Lieutenant Going requested Officer Matthews to write his own incident report. Officer Matthews' report stated that Respondent opened the door to cell 36 for Officers Maloy and Crump. According to Officer Matthews' report, Inmate Grosser did not jump out at Officer Crump.

30. Subsequently, Sergeant Walker and Lieutenant Going gave Officer Crump an opportunity to re-write his report. Officer Crump re-wrote the report but left the substance unchanged. The following information was intentionally falsified: (a) Officer Crump was on his 15-minute round when the door to cell 36 came open; (b) Inmate Grosser came out of his cell and approached Officer Crump; and (c) Officer Maloy came into the pod through the chase door to assist Officer Crump.

31. Officer Crump's report failed to relate that Officer Maloy unnecessarily kicked Inmate Grosser in the groin several times after Inmate Grosser was handcuffed and placed on the floor.

32. Sergeant Walker asked Officer Crump to read and sign the final draft of his report. At that time, Sergeant Walker gave Officer Crump another opportunity to change the report because she was concerned about its accuracy. Officer Crump read and signed the final draft of the report without making any changes.

33. Next, Sergeant Walker gave the report to Officer Maloy. She asked him to read and sign the report. Officer Maloy complied with her request.

34. Finally, Sergeant Walker gave the report to Respondent. She asked him to read the report to make sure it was correct, and if it was accurate, to sign it. She gave him the opportunity to make additional comments on the report. Respondent read the report and signed it without making any additional comments. Respondent's testimony that he signed the report without reading it is not persuasive.

35. During the subsequent internal investigation, Officer Crump admitted that the report was intentionally falsified.

36. On January 19, 1995, Detective C. F. Wilson of the Jacksonville Sheriff's Office, Internal Affairs Section, interviewed Respondent, obtaining a sworn statement.

37. Respondent swore that when cell 36 was opened, Inmate Grosser rushed towards Officer Maloy in an excited manner. According to Respondent's sworn statement, Inmate Grosser exited the cell screaming, with his hands raised above his head as he approached the officers.

38. Respondent did not remember seeing Officers Maloy and Crump put on latex gloves while they were in the pod control room.

39. Respondent swore that he did not observe Officer Maloy on Inmate Grosser's back. He denied seeing either Officer Maloy

    or Officer Crump strike the inmate after they handcuffed him.

    
    

40. In his sworn statement, Respondent denied telling Officer Matthews that they had to stick together.

41. Respondent admitted in his sworn statement that the incident report was not accurate; however, he maintained that he signed the report without reading it.

    CONCLUSIONS OF LAW

    
    

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

43. Petitioner must prove by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

44. Section 943.13, Florida Statutes (1993), establishes the minimum qualifications for correctional officers, including the following:

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

45. Rule 11B-27.001(4), Florida Administrative Code (as amended on August 7, 1994), defined "good moral character" for purposes of the implementation of disciplinary action against correctional officers. That rule stated as follows in relevant part:

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Rule subsection 943.1395(6) or

    (7), F.S., a certified officer's failure to maintain a good moral character, as required by Rule subsection 943.13(7), F.S., is defined as:

    * * *

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

    1. significantly interferes with the rights of others; or

    2. significantly and adversely affects the functioning of the criminal justice system or an agency thereof; or

    3. shows disrespect for the laws of the state or nations; or

    4. causes substantial doubts concerning the officer's moral fitness for continued services; . . . .

46. Rule 11B-27.005(3)(c), Florida Administrative Code (as amended on August 7, 1994), listed certain acts or conduct which do not constitute a crime, but which are specifically included in Rule 11B-27.001(4)(c), Florida Administrative Code (as amended on August 7, 1994). One such act or conduct is listed as "False Reports, Statements, or Falsification of Application."

    Rule 11B-27.005(3)(c)10., Florida Administrative Code (as amended on August 7, 1994).

47. Petitioner has met its burden of proving by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes (1993), and Rule 11B-27.001(4)(c), Florida Administrative Code (as amended on August 7, 1994).

48. First, Respondent read and signed the incident report at issue here. He signed the incident report even though he knew that it was false. Second, Respondent knowingly made a false

    sworn statement concerning facts which were material to an internal investigation of alleged excessive use of force on Inmate Grosser.

49. Section 943.1395(7), Florida Statutes (Supp. 1994), provides as follows in relevant part:

    (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 state wide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

50. Section 943.1395(8), Florida Statutes (Supp. 1994), states as follows in pertinent part:

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures for implementing the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7).

    * * *

    (d) A hearing officer assigned to conduct a hearing under s. 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain

    compliance with, s. 943.13(4) or (7) must in his recommended order:

    1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and

       (7) and the rules adopted by the commission for the type of offense committed.

    2. Specify, in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

    
    

    Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation of the penalty. Any deviation from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the hearing officer.

51. Under Rule 11B-27.005(3)(c), Florida Administrative Code (as amended on August 7, 1994), the guideline penalty for making false reports and false statements ranges from probation to revocation. In this case, Respondent's actions merit revocation of his certifications based on the following circumstances: (a) the seriousness of his conduct; (b) the use of his official duties to facilitate the misconduct; (c) the number of violations; (d) the lack of effort to rehabilitate himself; and (e) the deterrent effect of the penalty imposed.

RECOMMENDATION

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

RECOMMENDED that:

Petitioner enter a Final Order revoking Respondent's certifications as an auxiliary law enforcement officer, a law enforcement officer, and a correctional officer.

DONE AND ORDERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998.

Richard D. Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Gary Baker, Esquire Post Office Box 1177

Callahan, Florida 32011

A. Leon Lowry, II, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire 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 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: 96-004990

Orders for Case No: 96-004990