STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

TANIKA PARKER, )

)

Respondent. )

Case No. 07-1523PL

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 20, 2007, by video teleconference with sites in Tallahassee and in Lauderdale

Lakes, Florida.

APPEARANCES

For Petitioner: Sharon S. Traxler, Esquire

Joseph S. White, Esquire

Department of Law Enforcement - 7100 Post Office Box 1489

Tallahassee, Florida 32304

For Respondent: George G. Lewis, Esquire

George G. Lewis, P.A.

950 South Pine Island Road, Suite 150 Plantation, Florida 33324

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

On March 13, 2007, Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, issued an Administrative Complaint against Respondent

Tanika Parker, alleging that she had violated the laws regulating her conduct as a correctional officer. Respondent timely requested an administrative hearing regarding the allegations in that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Inspector George Montenegro and Sergeant Eric Monath, and Petitioner's Exhibits numbered 1-5 were admitted in evidence. Respondent did not testify and offered no witnesses or exhibits.

Both parties filed proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent Tanika Parker was certified as a correctional officer in the State of Florida by the Criminal Justice Standards and Training Commission on September 9, 2005, and was issued correctional certification number 251547. (admitted fact)

2. From August 13, 2004, until July 13, 2006, Respondent was employed as a correctional officer by the Florida Department of Corrections and was assigned to the Dade Correctional Institution. (admitted fact)

3. On January 9, 2006, Respondent applied for a correctional officer position with the Palm Beach County Sheriff's Office. (admitted fact)

4. On March 10, 2006, as part of the Palm Beach County Sheriff's Office application process, Respondent answered the written question: "Have you had an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee [sic]?" by circling on the form as her response: "No." (admitted fact)

5. Also during March 2006, George Montenegro, a Senior Inspector in the Department of Corrections Inspector General's Office assigned to the Dade Correctional Institution, received information from a confidential informant that Respondent "was involved with" an inmate with the nickname of "Plump." Although

   an investigation was begun, it was not until early July when a second confidential informant disclosed the identity of Plump. It was inmate Leroy Rogers.

6. Thereafter, Plump's phone calls were monitored, and his cell was searched on July 21, 2006. Among other items in Plump's cell were 34 photographs. At that point Respondent had resigned and was no longer an employee of the Department of Corrections.

7. Since Respondent was in the process of being hired by the Palm Beach County Sheriff's Office, Inspector Montenegro contacted that agency and spoke with Eric Monath, a Sergeant with the Palm Beach County Sheriff's Office Division of Internal Affairs.

8. The 34 photographs taken from Plump's cell included the following: one of a cake inscribed "Happy Birthday Plump"; one with a little girl licking the icing off the cake knife; two of the front of Respondent's residence with the little girl in front; eleven more of the little girl at various locations; one close-up of an adult female's breasts; six close-ups of an adult female's naked genitalia; eight of an adult female's genitalia and/or buttocks either partially or fully covered by underwear; one of a T-shirt decorated with two hearts, one of which was inscribed "Plump" and the other one "Plumpness"; and three of a

   woman in that T-shirt, wearing some of the same underwear depicted in some of the other pictures.

9. The photos of the naked or clothed woman do not show the woman's face, head, or neck. They only focus on a particular part of the female's anatomy. One of the pictures, however, shows the female from behind with her hands on her hips, and that one reveals a scar or discoloration on the woman's left, inside forearm.

10. On July 27, 2006, Respondent attended an orientation session at the Palm Beach County Sheriff's Office, wearing a sleeveless shirt. Sergeant Monath saw that same identifying mark on Respondent's forearm.

11. On August 1, 2006, Sergeant Monath met with Inspector Montenegro at the Walgreen's near Respondent's residence and presented the photos with the identifying Walgreen's information on the back of each one to the store's manager. The store manager confirmed that the identifying information was for that store and, using it, checked the store's computer records. The customer for whom the photographs were developed was Respondent.

12. Inspector Montenegro and Sergeant Monath then drove to Respondent's residence and compared the front of the structure to the structure depicted in the photographs. It was the same, including the location of the sprinkler head in the front yard.

13. The monitored phone calls made by Plump were to a female who was never identified in the phone calls. However, during one of the calls, the female yelled instructions to someone in the background named Taliyah. Respondent's application for employment by the Palm Beach County Sheriff's Office listed as the only person living with her, her daughter Taliyah Wilcox.

14. Inmate Rogers' visitor log shows that Respondent visited him thirteen times between November 4, 2006, and July 7, 2007. She listed herself as a "personal friend."

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

16. Petitioner seeks to take disciplinary action against Respondent in this proceeding. The burden of proof, therefore, is on Petitioner, and Petitioner must prove the allegations in its Administrative Complaint by clear and convincing evidence. Dept. of Banking & Finance, Div. of Securities & Investor

    Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner has met its burden.

17. The Administrative Complaint filed in this cause alleges that Respondent made a false statement as part of her employment process regarding an inappropriate relationship with

    an inmate, with the intent to mislead the Palm Beach County Sheriff's Office. The Administrative Complaint alleges, therefore, that Respondent violated Section 943.1395(6) and/or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B-27.0011(4)(c) in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.

18. Section 943.13(7), Florida Statutes, requires a correctional officer to have a good moral character. Although Section 943.1395(6), Florida Statutes, does not appear to apply to the issues in this case, Section 943.1395(7) clearly applies. That latter Section authorizes Petitioner to take disciplinary action upon a finding that a certified officer has not maintained good moral character, the definition of which has been adopted by rule as a statewide standard.

19. Florida Administrative Code Rule 11B-27.0011 contains the definition of moral character, and Subsection (4) defines a certified officer's failure to maintain the good moral character required by Section 943.13(7), Florida Statutes. Subsection (4)(c)6 prohibits a certified officer from making false statements during the employment application process.

    Respondent did make a false statement. The false statement Respondent made is her denial of an inappropriate relationship with an inmate.

20. It is unclear as to whether the question Respondent answered falsely was only asked of certified officers or whether that part of the application process applies, in general, to applicants for employment by the Palm Beach County Sheriff's Office for both certified positions and non-certified positions. If also used for non-certified positions at the Palm Beach County Sheriff's Office, then the definition of an inappropriate relationship would be that as perceived by reasonable persons. It seems indisputable that reasonable persons would view a correctional officer giving pornography featuring herself to an inmate constitutes an inappropriate relationship.

21. If the question is only asked of certified officers, then it may be that the Palm Beach County Sheriff's Office intended the question to have, not just its ordinary meaning, but rather the meaning contained in Florida Administrative Code Rule 11B-27.0011(4)(c)3, which defines an unprofessional relationship as, among other things, having written or oral communication with an inmate that is intended to facilitate conduct prohibited by that Rule Section. Elsewhere in that Rule Section is a prohibition of any overt act of a sexual or simulated sexual nature which is likely to be observed by others. Fla. Admin. Code R. 11B-27.0011(4)(c)10.

22. Respondent having her naked genitalia and naked breasts photographed and providing those photographs to an

    inmate in the jail where she works is an overt act of a sexual nature. The photographs were likely to be observed by Walgreen's employees, by Plump, and by those to whom Plump showed the photographs. Further, they were actually observed, as could be reasonably anticipated, by the officers who removed them from Plump's cell and by those persons investigating, prosecuting, defending, and adjudicating this case.

23. The photographs are shocking. That Respondent would provide them to an inmate in the facility where she worked is incomprehensible. That Respondent had a relationship which was inappropriate and unprofessional with an inmate was public knowledge enough that two confidential informants reported that relationship to the Department of Corrections Inspector General's Office.

24. Accordingly, whether the question which Respondent answered falsely was intended to have its ordinary meaning or was intended to have the meaning set forth in Florida Administrative Code Rule 11B-27.0011, Petitioner has proven by clear and convincing evidence that Respondent failed to maintain good moral character as required by Section 943.13(7), Florida Statutes.

25. Section 943.1395(7), Florida Statutes, sets forth the penalties that can be imposed upon a certified officer for failure to maintain good moral character. Respondent's

introduction of pornography into a correctional institution is a serious matter and her willingness to provide false information cannot be overlooked. Revocation of her certificate is the only appropriate penalty for her inappropriate behavior.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her correctional certificate numbered 251547.

DONE AND ENTERED this 7th day of September, 2007, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 7th day of September, 2007.

COPIES FURNISHED:

George G. Lewis, Esquire George G. Lewis, P.A.

950 South Pine Island Road, Suite 150 Plantation, Florida 33324

Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489

Tallahassee, Florida 32304

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

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services 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: 07-001523PL

Orders for Case No: 07-001523PL