STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

JEANIE HOWELL, )

)

Respondent. )

Case No. 05-0137PL

)

RECOMMENDED ORDER

Notice was provided and on March 28, 2005, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2004). The hearing location was the Marion County Government Complex, Room 105, 601 Southeast 25th Avenue, Ocala, Florida.

Charles C. Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Jeanie Howell, pro se

Nine Pine Place Ocala, Florida 34472

STATEMENT OF THE ISSUE

Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with her correctional certificate?

PRELIMINARY STATEMENT

On November 23, 2004, by an Administrative Complaint in Case No. 21077, the Commission accused Respondent of introducing contraband into or upon the grounds of Lowell Correctional Institution (the Institution), and making several false statements concerning the incident. By the alleged conduct Respondent is accused of violating the provisions of Sections 837.02(1), 837.06, 943.1395(6) and (7) and 944.47(1)(a), Florida

Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b), by failing to maintain qualifications established in Section 943.13(7), Florida Statutes, related to the need for a correctional officer to have good moral character.

Respondent disputed the allegations of fact in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On January 18, 2005, the case was received by the Division of Administrative Hearings upon a request for assignment of an administrative law judge to conduct the formal hearing. The case was assigned and a hearing notice was provided. The hearing took place on the date described.

At hearing Petitioner called Inspector Lewis Conrad, Lieutenant Bobby Ruise, Elisabeth Bolch, and Diadenis Suarez as its witnesses. Petitioner's Exhibits numbered 1 and 3 through 6 were admitted. Ruling was reserved on the admission of Petitioner's Exhibit numbered 2. Petitioner's Exhibit numbered

2 is denied admission. Respondent testified in her own behalf and called Brenda McKinney as her witness. Respondent's Exhibit numbered 1 was admitted. Petitioner presented Diadenis Suarez as its rebuttal witness. All exhibits, to include Petitioner's Exhibit numbered 2 denied admission, are forwarded with the Recommended Order.

On April 14, 2005, a hearing transcript was filed with Division of Administrative Hearings. Petitioner filed a proposed recommended order which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Taken in the context of other facts found, at times relevant to the inquiry Respondent was a correctional officer assigned to the Institution referred to in the Administrative Complaint.

2. On March 2, 2004, Diadenis Suarez was an inmate incarcerated in the Institution. The Institution is part of the prison system in Florida. Respondent was on duty at that time in her capacity as a correctional officer. Respondent and

   Ms. Suarez engaged in a conversation in the officer's station between two open-bay dormitories in the Institution. They were the only ones inside the officer's station while they talked.

3. Respondent had a lunch box with food items that she had brought with her to the Institution. Out of the food brought in, Respondent offered Ms. Suarez sliced apples. Respondent offered Sweet Tarts (candy) to Ms. Suarez. Respondent had been eating chicken. The leftover chicken was also offered to

   Ms. Suarez. Respondent handed the apples and candy to

   
   

   Ms. Suarez. The inmate picked up the chicken resting on a paper towel atop a counter in the officer's station.

4. The food that has been described was not food provided to the inmate through the prison facility. It was not provided through ordinary channels. Respondent did not have permission from the prison authorities to provide the food to the inmate.

5. The food items were carried away from the officers station and turned over to Inspector Lewis Conrad, an official with the Florida Department of Corrections. Inspector Conrad was investigating Respondent and was aware that Inmate Suarez would make contact with Respondent on March 2, 2004, and that the possibility existed that Respondent would offer food items to Inmate Suarez.

6. Petitioner's Exhibit numbered 3 is a Polaroid photograph taken of the food items, the sliced apples, chicken and Sweet Tarts.

7. Following the incident Respondent was interviewed by the State of Florida, Department of Corrections, Office of the Inspector General. There were two interviews. The first interview took place on March 5, 2004. The second interview took place on March 16, 2004. In each interview Respondent was placed under oath and informed that the interview was related to administrative matters, and was not intended for use in a criminal prosecution. Respondent was reminded pursuant to Florida Administrative Rule 33-208.002, that as an employee of the Department of Corrections she could not refuse to truthfully answer questions relating to the performance of her official duties. The consequence of her failure to truthfully answer questions could lead to disciplinary action being taken against the Respondent.

8. The March 5, 2004, interview was conducted by then Inspector Bobby Ruise. A transcription of the taped interview is found as Petitioner's Exhibit numbered 5. In this interview Respondent denied giving inmate Suarez any food items.

9. The March 16, 2004, interview was conducted by Inspector Conrad. A written transcription of the taped interview is found as Petitioner's Exhibit numbered 6.

   When asked if Respondent offered inmate Suarez chicken, apples and Sweet Tarts, Respondent replied that she did not.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2004).

11. By this action, the Commission seeks to discipline Respondent in her capacity as a certified correctional officer. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's certificate. The nature of that proof must be by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Department of Banking and Finance,

    Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996).

12. The material allegations in the Administrative Complaint are as follows:

    2.(a) On or about March 2, 2004, the Respondent, Jeanie Howell, did unlawfully introduce into or upon the grounds of Lowell Correctional Institution, a state correctional institution, or take or attempt to take, or send or attempt to send therefrom, apples, chicken, and candy, articles or things declared to be contraband, except through regular channels as authorized by the officer in charge of the institution.

    1. On or about March 2, 2004, the Respondent, Jeanie Howell, did unlawfully and knowingly make a false statement in writing with the intent to mislead Warden Robert Honsted, a public servant, in the performance of his official duty.

       
       

    2. On or about March 5, 2004, the Respondent, Jeanie Howell, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Inspector Bobby Ruise in an official proceeding, to wit: an internal affairs investigative interview, in regard to a material matter.

       
       

    3. On or about March 6, 2004, the Respondent, Jeanie Howell, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Inspector Lewis Conrad in an official proceeding, to wit: an internal affairs investigative interview, in regard to a material matter.

       
       

13. The Administrative Complaint refers to Section 943.1395(6), Florida Statutes (2003), which states:

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s.

    943.13(4), or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.113(2), or s. 943.139(2).

    
    

14. None of the factual allegations in the Administrative Complaint implicate consideration of Section 943.1395(6), (2003). Therefore no violation has been proven concerning that law.

15. Alternatively, Respondent is accused of violating Section 943.1395(7), Florida Statutes (2003), which allows the

    imposition of discipline against the corrections certificate held by Respondent for the following reason:

    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). . . .

    
    

16. Section 943.13(7), Florida Statutes (2003), makes it incumbent that Respondent as a correctional officer:

    Have a good moral character as determined by background investigation under procedures established by the Commission.

    
    

17. The definition for good moral character, as has been adopted by Florida Administrative Code Rule 11B-27.0011(4)(a) and (b) states:

    For the purposes of the Criminal Justice Standards and Training 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 required by Section 943.13(7), F.S., is defined as:

    
    

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

       
       

    2. The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. . . . Section 837.06, F.S. . . .

18. The offenses referred to in the Administrative Complaint involving a consideration of Respondent's moral character are as follows:

    Section 837.02(1), Florida Statutes (2003), perjury in a official proceedings. -

    Except as provided in Subsection 2, whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

    Section 837.06, Florida Statutes (2003), false official statements. -

    Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duties shall be guilty of a misdemeanor of the second degree punishable as provided in s. 775.082 or s. 775.083.

    
    

    Section 944.47(1)(a) and (2), Florida Statutes (2003), introduction, removal or possession of certain articles unlawful; penalty.-

    
    

    (1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

    
    

    * * *

    
    

    2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

    * * *

    
    

    (2) A person who violates any provision of this Section as it pertains to an article of contraband described in subparagraph (1)(a)1. or subparagraph (1)(a)2. is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

    775.084. . . .

    
    

19. Respondent has not maintained good moral character for reason that she committed acts which would constitute felony offenses found at Sections 837.02(1) and 944.47(1)(a), Florida Statutes (2003), even though that it was not shown that those offenses were criminally prosecuted. There has been no showing of a violation of Section 837.06, Florida Statutes (2003).

20. Respondent introduced contraband, other than through regular channels authorized by the officer in charge at the Institution, to wit: food. She then committed perjury by giving two false statements under oath in official proceedings, in regard to material matters concerning the introduction of the food into the Institution, under circumstances which lead to the conclusion that she knew those statements were not true. See

    Melendres v. State, 739 So. 2d 1237 (Fla. 3rd DCA 1999). This misconduct was as alleged in the Administrative Compliant pertaining to inmate Suarez on March 2, 2004, and the interviews on March 5 and 16, 2004, related to the incident with the inmate. It has not been shown that Respondent unlawfully or

    knowingly made a false statement in writing on March 2, 2004, with the intent to mislead Warden Robert Honsted.

21. It has been clearly and convincingly shown that the statutory violations pertaining to felonies occurred, evidencing a failure to maintain good moral character as required in Florida Administrative Code Rule 11B-27.0011(4)(a), but no evidence proved a violation of Florida Administrative Code Rule 11B-27.0011(4)(b) related to a misdemeanor.

22. Florida Administrative Code Rule 11B-27.005, contains guidelines for the imposition of penalties for the violations found. A recommendation for punishment is made consistent with those guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a Final Order be entered finding violations pertaining to Sections 837.02(1), 943.1395(7), and 944.47(1)(a), Florida Statutes (2003), and Florida Administrative Code Rule 11B- 27.0011(4)(a), while dismissing the violations in relations to Sections 837.06 and 943.1395(6), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(b), and revoking the correctional certificate held by Respondent.

DONE AND ENTERED this 5th day of May, 2005, in Tallahassee,

Leon County, Florida.

S

CHARLES C. ADAMS

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 5th day of May, 2005.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jeanie Howell Nine Pine Place

Ocala, Florida 34472

Michael Crews, Program Director 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

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: 05-000137PL

Orders for Case No: 05-000137PL