STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 03-0058PL

)

RENE MARTINEZ, )

)

Respondent. )

__ )

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on February 26, 2003.

APPEARANCES

For Petitioner: Joseph S. White

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

For Respondent: James C. Casey

Slesnick & Casey

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 8, 2002, Petitioner alleged that, on December 21, 1999, Respondent unlawfully and knowingly made a false statement in writing with the intent to mislead his superior officer in the performance of the officer's official duty. The Administrative Complaint alleges that Respondent thus failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and violated Sections 837.06 and 943.1395(6) or (7), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code. The Administrative Complaint seeks an "appropriate penalty," as provided in Section 943.1395(6) or (7).

By Election of Rights dated July 1, 2002, Respondent denied the material allegations and requested a formal hearing.

At the hearing, Petitioner called six witnesses and offered into evidence three exhibits: Petitioner Exhibits 1-3.

Respondent called five witnesses and offered into evidence ten exhibits: Respondent Exhibits 1-10. The parties jointly offered one exhibit: Joint Exhibit 1. All exhibits were admitted.

The court reporter filed the transcript on March 6, 2003.

The parties filed their proposed recommended orders on March 20, 2003.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on April 28, 1988, and issued him certificate number 86967. At all material times, the Miami-Dade Department of Corrections and Rehabilitation employed Petitioner as a correctional officer. At the time of this incident, Respondent worked at the Turner Guilford Knight Correctional Center (TGK).

2. For December 20-21, 1999, Respondent reported to TGK for a shift that began at 10:30 p.m. on December 20 and ended at 6:30 a.m. on the next morning. Respondent's position was a unit manager of Unit K4-2. As the unit manager, Respondent was responsible for the care, custody, and control of all inmates in this unit. This responsibility included the duty of ensuring that all inmates were present and accounted for in the unit, and Respondent was required to conduct an inmate headcount and in- cell checks of all inmates.

3. Correctional officers conducting in-cell checks document the time of their checks on a Visual Checks log. The purpose of the Visual Checks log is to inform the correctional officer's superior and other correctional officers that the officer entering the information in the log walked the entire unit at the time noted and visually checked all inmates housed in the unit. If, as is customary, the correctional officer found nothing amiss, he would enter "QRU" in the log, which

   informs his superior and other correctional officers that all was well in the unit at the time indicated for the check.

4. During his shift of December 20-21, 1999, Respondent made seven entries in the Visual Checks log for his unit. The indicated times were hourly, on the hour, from 11:00 p.m. on December 20 through 6:00 a.m. on December 21. For each entry, Respondent recorded a headcount and wrote in the Visual Checks log, "VISUAL CK UNIT/INMATES ALL QRU."

5. At 9:15 a.m. on December 21, 1999, another correctional officer discovered that inmate Carlos Nevis in room 552, which is in the unit for which Respondent was responsible, had hanged himself to death. The question in this case is whether

   Mr. Nevis hanged himself on Respondent's watch. If so, given the close proximity of the hanging body to the door window through which an officer makes a visual inspection of the cell, the inference readily follows that Respondent did not conduct a visual check of Mr. Nevis's cell, as Respondent indicated he had done on the Visual Checks log.

6. When the body of Mr. Nevis was found, it was already displaying the effects of rigor mortis. The one witness who had indicated otherwise retreated from his earlier statement and, visibly uncomfortable, testified only that he could not recall if the body felt stiff or hard. Four other witnesses testified that the body was stiff to the touch when it was discovered.

7. The time of death is contested by two expert witnesses.

   
   

   Petitioner relies on the Chief Medical Examiner for Miami-Dade County. He conducted an autopsy and found substantially digested food in Mr. Nevis's stomach. The food appeared to be a green vegetable and red beans, as well as a tan fluid of less than one cup in volume. The food was from dinner on the evening of December 20, not the 1:00 a.m. breakfast on December 21, which had no vegetables.

8. Considering the witness reports of body stiffness, Petitioner's expert concluded that Mr. Nevis died not much after 4:00 a.m.--and well prior to 6:00 a.m.--on December 21. The expert also noted that the fire rescue squad declared Mr. Nevis dead at 9:22 a.m.--two minutes after they arrived at the scene-- and the absence of any indication of chest compressions, bagging, or ventilation is consistent with the finding that

   Mr. Nevis had been dead several hours by the time his body was discovered at 9:15 a.m.

9. Respondent's expert has served as the regional medical examiner, Deputy Chief Medical Examiner, and Medical Examiner for Dade County since 1972 and is now a forensic pathologist consultant. However, Respondent's expert could not adequately account for the partially digested food found in Mr. Nevis's stomach. Respondent's expert tried to explain that emotional stress would slow digestion, but Petitioner's expert countered

   convincingly that many persons who have decided to end their lives find peace in their final hours--a premise that would be consistent with the fact that Mr. Nevis had the presence of mind to prepare a final note to his girlfriend and tuck a Bible into his waistband prior to hanging himself. Even Respondent's expert had trouble establishing a time of death considerably past 6:00 a.m.

10. Called as a witness in his own case, Respondent testified that he started the 6:00 a.m. check at 5:45 a.m., and a visual check of the entire 48-room unit takes ten to fifteen minutes to complete. Respondent thus testified that he saw

    Mr. Nevis alive a few minutes before 6:00 a.m.

    
    

11. Petitioner has proved by clear and convincing evidence that Respondent falsely noted in the Visual Checks log that he had checked Mr. Nevis's room at 6:00 a.m., or even 5:45 a.m. Despite his testimony to the contrary at the hearing, Respondent never checked the room at the round that he claimed to have performed at, or shortly before, 6:00 a.m. on December 21.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

13. Section 943.13(7) requires that correctional officers maintain "good moral character." Rule 11B-27.0011(4)(b)1 provides that the failure to maintain good moral character is evidenced by an officer's perpetuation of any act that would constitute a violation of Section 837.06. Section 837.06 provides that it is a misdemeanor of the second degree for anyone to make a "false statement in writing with the intent to mislead a public servant in the performance of his or her official duty."

14. Rule 11B-27.005(5)(b)4 provides that the recommended penalty for the failure to maintain good moral character, as evidenced by a violation of Section 837.06, is revocation. Other provisions allow Petitioner to reduce the penalty for mitigating circumstances.

15. Petitioner argues mitigating circumstances in its proposed recommended order that seeks a six-month suspension followed by two years' probation. Evidence shows that Respondent is well-respected by other correctional officers, as Petitioner contends, and that he has served as a correctional officer for 13 years without discipline. These are mitigating factors.

16. However, Petitioner's argument that the false entry did not actually mislead anyone is doubtful. Jail policy called for hourly visual checks, and, if another correctional officer

    had found from an examination of the log that Respondent had not performed the 6:00 a.m. check, perhaps he or she would have done so, and Mr. Nevis's body might have been found in a timely fashion. This argument is unpersuasive in identifying a mitigating factor, although the contingencies preclude finding any possibility of actual misleading to be an aggravating factor.

17. Likewise, Petitioner's argument that Respondent's misconduct was unconnected to the death of Mr. Nevis is unpersuasive as a source of mitigation. True, the misconduct is the false entry in the log, not the failure to check Mr. Nevis's room, but the underlying failure may have had a bearing on whether the suicide could have been prevented from taking

    Mr. Nevis's life. Again, though, the contingencies and the fact that the charged omission is in a false entry, not in failing to perform a required duty--preclude finding any causal connection between Respondent's acts and omissions and Mr. Nevis's death as an aggravating factor.

18. On the last point, Petitioner argues as it did in the case of the other correctional officer whose false entry after Respondent's false entry resulted in the recommended imposition of six months' suspension followed by two years' probation. See

    Department of Law Enforcement, Criminal Justice Standards and Training Commission v. Jeffrey L. Montgomery, DOAH Case No. 02-

    1080. However, respondent Montgomery's misconduct--even if treated as the failure to perform the checks, rather than the failure to make truthful entries into a log--obviously could not have contributed to the inmate's death because Mr. Nevis was already dead when respondent Montgomery's shift started.

19. Generally, Petitioner cites the Montgomery order as precedent for the same penalty in this case as was imposed in the Montgomery case. However, Petitioner overlooks a crucial distinction in the two cases. Respondent Montgomery did not testify in his case. This means that he did not lie about his wrongful acts and omissions. In the present case, Respondent chose to testify and deliberately lied about his wrongful acts and omissions.

20. Of course, Respondent is not charged with lying about what he did and did not do during his shift on December 21, but the fact of his lying is an aggravating factor that was not present in the Montgomery case. Six months' suspension and two years' probation seem fit for a respondent who either testifies at the hearing and admits his wrongdoing or at least, as in Montgomery, chooses not to testify at the hearing and thus not to lie about his wrongdoing. It is irrational to impose the same penalty for a respondent who, like Respondent, testifies at the hearing and lies about his wrongdoing. Such a respondent seems not to have comprehended the full force of the

professional obligation to tell the truth. The respect of one's peers and 13 years' unblemished service as a correctional officer do not outweigh lying under oath about the material facts of this case, so no net mitigating circumstances warrant a downward departure from the standard penalty of revocation.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificate.

DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida.

___ ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2003.

COPIES FURNISHED:

Rod Caswell, Program Director Department of Law Enforcement Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Joseph S. White Assistant General Counsel

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

James C. Casey Slesnick & Casey

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000058PL

Orders for Case No: 03-000058PL