STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

RICHARD L. ODOM, )

)

Respondent. )

Case No. 05-3505PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 20, 2006, in Pensacola, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2002),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(c),

and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On May 4, 2005, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), issued an Administrative Complaint against Respondent,

Richard L. Odom (Odom), alleging that he violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rules 11B-27.0011(4)(a),

11B-27.0011(4)(c), and 11B-20.0012(1)(f). Odom filed an Election of Rights form, denying all allegations in the Administrative Complaint and requesting an administrative hearing. The case was forwarded to the Division of Administrative Hearings on September 22, 2005, for assignment to an administrative law judge. The case was originally assigned to Administrative Law Judge Charles C. Adams, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

The final hearing was scheduled to commence at 9:00 a.m. on January 20, 2006. Odom was provided notice, but failed to appear at the scheduled time. The time for commencing the hearing was extended to 9:30 a.m., but Odom still did not appear and provided no explanation for his failure to appear. The final hearing was conducted without the appearance of Odom.

At the final hearing, the Commission submitted Petitioner's Exhibits 1 through 4, which were admitted in evidence. The Commission called the following witnesses: Jeffrey Brooker, Gregory Gilliard, Jarl I. Johnson, and Vera Elliot.

No transcript of the hearing was filed. The Commission filed its Proposed Recommended Order on February 13, 2006.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Odom was a correctional officer working as a sergeant at Century Correctional Institution (Century) in Century, Florida.

2. Jarl Johnson (Johnson) is a correctional officer who was employed at Century while Odom was employed there. Johnson went to the dormitory where Odom was stationed to check equipment. He advised Odom that he would do the head count of the inmates, but Odom indicated that he would do the head count instead of Johnson. Odom took two inmates, who were in the officers' station, with him to do the head count, and the inmates carried flashlights with them while doing the head count. Inmates are prohibited from doing head counts and carrying flashlights.

3. Vera Elliot (Elliot) is a correctional officer, who is employed at Century. On February 14, 2003, she was working a double shift. One of her shifts that day was the same shift on

   which Odom was working. Elliot observed Odom and two inmates do a head count of the inmates. The two inmates came into the officers' station, while Odom was present. At that time, no inmates were allowed in the officers' station. On that same evening, Elliot saw Odom give a white box containing food to the two inmates. Correctional officers are not allowed to give food to inmates.

4. Gregory Gilliard (Gilliard) is a correctional officer, who was employed at Century while Odom was employed at Century. Gilliard observed an inmate and Odom in the laundry room directly behind the officers' station. The inmate was polishing Odom's shoes. Gilliard also observed another inmate in the officers' station. The doors to the laundry room were open, making the dormitory accessible, which is a breach of security.

5. On May 8, 2003, Jeffrey R. Brooker (Brooker), a correctional investigator for the Office of the Inspector General of the Department of Corrections, interviewed Odom concerning complaints against staff at Century. While under oath, Odom told Brooker that he never allowed inmates to carry flashlights, never gave food to inmates, never allowed inmates in the officers' station, and never allowed an inmate to polish his shoes. These sworn statements were false. Based on the statements given by Odom to Brooker, it is found that Odom knew that his statements were not true.

6. The Commission alleged in the Administrative Complaint that Odom used excessive or unnecessary force on an inmate. The only evidence presented concerning these allegations was hearsay. Subsection 120.57(1)(c), Florida Statutes (2005), provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Therefore, no finding is made that excessive or unnecessary force was used by Odom.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

8. The Commission has the burden to establish the allegations in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). In Slomowitz

   v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:

   [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   Slomowitz, 429 at 800.

   
   

9. The Commission has alleged that Odom violated Subsections 943.1395(6) and 943.1395(7), Florida Statutes, which provide:

   1. 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. 943.133(2), or s. 943.139(2).

      
      

      * * *

      
      

   2. 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 statewide 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 of 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. Upon the violation of such terms and conditions, 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.

      
      

10. The Commission also alleged that Odom violated Subsection 943.13(7), Florida Statutes, which provides that a correctional officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission." Additionally, the Commission alleged that Odom violated Florida Administrative Code Rules 11B-27.0011(4)(a) and 11B-27.0011(4)(c), which provide:

    1. 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.

    
    

    * * *

    
    

    (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

    1. Excessive use of force, defined as a situation in which an officer uses a "level of force" inappropriate with the circumstances presented at the time of the incident. In the administrative review of "use of force" for officer disciplinary cases, the Commission applies the Commission's Recommended Response to

    Resistance and Levels of Resistance, form CJSTC-85, revised February 7, 2002, hereby incorporated by reference, to evaluate "use of force" circumstances presented in a disciplinary case.

    
    

11. The Commission has failed to establish that Odom violated Subsection 943.1395(6), Florida Statutes. The Commission did not establish that Odom was not in compliance with Subsection 943.13(4), Florida Statutes. No evidence was presented to establish Odom had be convicted of, pled guilty to, or pled no contest to any felony or misdemeanor involving perjury or a false statement or that Odom had received a dishonorable discharge from the any of the Armed Forces of the United States. No evidence was presented that Odom executed a false affidavit established in Subsections 943.13(8), 943.133(2), and 943.139(2), Florida Statutes.

12. The Commission did establish by clear and convincing evidence that Odom failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes, and, therefore, is subject to discipline pursuant to Subsection 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.001(4)(a). The giving of food to inmates constitutes a felony pursuant to Section 944.47, Florida Statutes. By giving food to inmates, Odom failed to maintain good character.

13. The giving of false statements under oath in an official proceeding in regard to any material matter, when the person making the statement does not believe the statements to be true is a felony pursuant to Subsection 837.02(1), Florida Statutes. The Commission established that Odom's statements to Brooker were in violation of Subsection 837.02(1), Florida Statutes, and constitute failure to maintain good moral character.

14. The Commission also seeks to revoke Odom's instructor certification for violation of Florida Administrative Code Rule 11B-20.0012(1), which provides that an instructor's certification can be revoked if the instructor commits acts establishing a lack of good moral character. No evidence was presented to establish that Odom had an instructor's certification; thus, the Commission has failed to establish that it has jurisdiction to revoke any instructor's certification that Odom may have.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Richard L. Odom violated Subsection 943.13(7), Florida Statutes, and revoking his certification as a correctional officer.

DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 29th day of March, 2006.

ENDNOTE

1/ Unless otherwise noted, all references to Florida Statutes are to the 2002 edition.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Richard L. Odom

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

Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida 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: 05-003505PL

Orders for Case No: 05-003505PL