STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-4250

)

LORETTA L. SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 11, 1997, a formal administrative hearing was held in this case in Tampa, Florida, before Richard Hixson, an Administrative Law Judge, for the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark P. Brewer, Esquire

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

For Respondent: Loretta L. Scott, pro se

4360 Outrigger Lane

Tampa, Florida 33615 STATEMENT OF THE ISSUE

The issue to be determined in this case is whether Respondent, a certified correctional officer, committed the offenses alleged in the Administrative Complaint, and if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

On August 29, 1996, Petitioner, Criminal Justice Standards and Training Commission, filed an Administrative Complaint against Respondent, Loretta L. Scott, alleging that Respondent made material false statements to internal investigators of the Department of Corrections during an internal investigation in violation of Sections 943.1395(6) and (7), and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code. The Administrative Complaint seeks the imposition of appropriate disciplinary sanctions.

On September 23, 1996, Respondent filed an election of rights disputing the factual allegations of the Administrative Complaint, and requesting a formal hearing. On September 10, 1997, the matter was referred to the Division of Administrative Hearings to conduct the formal hearing which was held on December 11, 1997. Prior to hearing the parties entered into a pre-hearing stipulation which was filed on December 10, 1997.

At hearing Petitioner presented the testimony of four witnesses: Inspector Keith Adams, Department of Corrections (DOC); Officer Donald Brooker, DOC; Officer Brent Handley, DOC; and Sergeant Jack Alvord, DOC. Petitioner also presented three exhibits which were received into evidence without objection.

Respondent testified in her own behalf, and presented the testimony of one witness, Officer Randall Hicks, DOC. Respondent offered no other exhibits.

Pursuant to the request of the parties, the time for filing proposed recommended orders was extended until January 11, 1998.

On January 9, 1998, Petitioner filed a proposed recommended order. Respondent did not file a proposed recommended order. A transcript of the proceedings was not filed.

FINDINGS OF FACT

1. Petitioner, Criminal Justice Standards and Training Commission (Commission), is the agency of the State of Florida vested with the statutory authority pursuant to Section 943.1395, Florida Statutes, to certify the employment of correctional officers.

2. Respondent, Loretta L. Scott, is a certified correctional officer holding certificate number 157788 issued by the Commission.

3. At all times material to the allegations of the Administrative Complaint, Respondent was employed, and on duty as a correctional officer at the North Florida Reception Center (NFRC), a correctional facility of the DOC.

4. On July 15, 1995, an incident of prisoner abuse occurred at NFRC involving the striking of an inmate, John Graham, by Corrections Captain Bailes during a formation of the inmates in the yard.

5. The day of the incident was Respondent's first day on duty as an officer trainee at NFRC. Respondent was assigned to the team of officers on duty in the NFRC yard at the time of the incident.

6. At some time prior to the incident, Respondent had left the yard for a short while to use the bathroom.

7. After the incident, inmate Graham was escorted from the yard to the NFRC hospital by Captain Bailes and other correctional officers. Respondent was present and in the

   immediate area of the yard during the course of the incident, and assisted in escorting inmate Graham to the hospital.

8. On or about July 27, 1995, Respondent was twice questioned under oath by Inspector Keith Adams concerning the incident of abuse of inmate Graham. The transcripts of the interviews were admitted as Petitioner's Exhibit 3. Respondent denied witnessing the striking of inmate Graham by Captain Bailes, and initially denied accompanying inmate Graham to the NFRC hospital; however, during the afternoon interview on

   July 27, 1995, Respondent stated that she assisted in accompanying inmate Graham to the NFRC hospital. Respondent again testified at hearing that she was not present on the NFRC yard, and did not observe the incident of abuse of inmate Graham, but may have been one of the officers accompanying inmate Graham to the hospital.

9. Establishing the witnesses to the incident of prisoner abuse was a material aspect of the investigation conducted by the DOC into this matter.

10. Respondent was not candid and forthcoming in her interviews with Inspector Adams. Respondent was part of the team of officers on the NFRC yard at the time of the incident and was observed on the yard during the time of the incident by several witnesses. While Respondent may have been away from the NFRC yard for a short period of time on July 15, 1995, Respondent was clearly present and accompanied inmate Graham to the NFRC hospital where other matters significant to the internal

    investigation occurred.

    
    

11. Respondent's disclaimer of any material knowledge of the circumstances surrounding the incident of abuse of inmate Graham is not consistent with the evidence of record, and constituted a material misrepresentation to the investigating officer.

12. As indicated above, July 15, 1995, was Respondent's first day on duty in the yard. She had not completed her training and was inexperienced as a corrections officer. The incident of prisoner abuse, which occurred on July 15, 1995, involved a high-ranking corrections officer, and resulted in significant internal personnel ramifications at NFRC.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative hearings has jurisdiction over the parties and the subject matter of these proceedings, Section 120.57 (1), Florida Statutes.

14. The Criminal Justice Standards and Training Commission must prove the allegations of its complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932, Florida Statutes (1996); Ferris v. Turlington, 510 So. 2d 292, Florida Statutes (1987). The Commission met its burden of proof.

15. Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a law enforcement and corrections officer in Florida. Subsection (7) requires that all officers "[H]ave a good moral character as determined by a

    background investigation under procedures established by the Commission."

16. Section 943.1395, Florida Statutes, establishes the criteria for the revocation or discipline of an officer's certificate upon a finding that the officer failed to maintain good moral character:

    Upon a finding by the commission that certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 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 may revoke certification or impose additional penalties as enumerated in this subsection.

    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.

17. Rule 11B-27.0011(4), Florida Administrative Code, Provides a definition of "good moral character" for purposes of implementation of disciplinary action upon Florida Correctional Officers. The rule states in pertinent part:

    (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6) or (7), Florida Statutes, a certified officer's failure to maintain good moral character, as required in section 943.13(7), Florida Statutes, is defined as:

    ...

    (c) The perpetration by the officer of an act

    or conduct which constitutes:

    ...

    6. False statements.

    
    

18. The Commission met its burden of proving that the Respondent made a false statement in violation of Chapter 11B-27, Florida Administrative Code, which includes:

    That an officer made a false statement concerning material matters to a department member (or other government official to whom the officer had a duty to report truthfully) with the intent to mislead that department member to whom the statement was made regarding an official matter.

    
    

19. Under Section 11B-27.005(5)(c)10, Florida Administrative Code, the guideline penalty for the above- described offense is probation to revocation. Any departure from the guidelines must be based on mitigating or aggravating circumstances. Section 943.1395(d), Florida Statutes.

20. There is sufficient evidence of mitigating circumstances under Section 11B-27.005(6), Florida Administrative Code, to allow for suspension of Respondent's certificate within the penalty guidelines. Respondent at the time of this incident was in a trainee position. Indeed, the incident occurred on her first day of training duty at NFRC. The incident involved a

high-ranking officer. Respondent's reluctance to be involved as a material witness to this incident may be attributable to her lack of experience and security in her position and should be considered a mitigating factor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificate for a period not to exceed one year.

DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998.

COPIES FURNISHED:

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

Loretta L. Scott, pro se 4360 Outrigger Lane

Tampa, Florida 33615

A. Leon Lowry, II, Director Division of Criminal Justice

Standards & Training Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, Esquire 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: 97-004250

Orders for Case No: 97-004250