STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

v. ) Case No. 12-0063PL

)

GREGORY D. NICHOLS, )

)

Respondent, )

)

RECOMMENDED ORDER

This case was heard on April 24, 2012, by video teleconference at sites in Tallahassee, Florida and Gainesville, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elissa R. Saavedra, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Matthew O‟Connell Ward, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement

or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.

PRELIMINARY STATEMENT

On February 7, 2011, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint, Case No. 30763, against Respondent which alleged that on or about March 1, 2010, Respondent engaged in inappropriate physical conduct with an inmate of the Lowell Correctional Institution at which Respondent was employed as a correctional officer.

On February 25, 2011, Respondent executed an Election of Rights by which he disputed the facts alleged in the Administrative Complaint, and requested a formal administrative hearing.

On January 5, 2012,1/ Petitioner referred the petition to the Division of Administrative Hearings. The record is silent as to the reason for the passage of more than 10 months from the date of the Petition to the date of transmittal, but there has been no objection by Respondent.

The final hearing was scheduled for March 7, 2012. On March 5, 2012, a Motion for Continuance was filed due to Respondent‟s involvement in a vehicular accident in which he

suffered injuries. The Motion was granted, and the final hearing was rescheduled for April 24, 2012.

Prior to the final hearing, Petitioner filed a Notice of Intent to Introduce Similar Fact Evidence of Other Wrongs, Violations, or Acts. The similar fact evidence consisted of an affidavit of Tracy Coer, the inmate who Respondent is alleged to have kissed, in which inmate Coer stated that Respondent unsuccessfully attempted to kiss her on two previous occasions. The effect of the affidavit is set forth herein.

The hearing was held on April 24, 2012, as scheduled. At the final hearing, Petitioner presented the testimony of Brittany Richardson, a correctional officer at the Lowell Correctional Institution. Petitioner‟s Exhibits B, C, and D were received into evidence. Respondent testified on his own behalf.

Respondent‟s Exhibit 1 was received into evidence.

A one-volume Transcript of the proceedings was filed on May 9, 2012. By agreement, the parties were granted until

June 1, 2012 to file proposed recommended orders. Both parties timely filed Proposed Recommended Orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida.

   § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications.

2. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out

   
   

   the last five years so I could use my leave up easier and kind of have a life.”

3. Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent.

4. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution.

5. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers‟ supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station.

6. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment.

7. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate‟s waiting room into the medical facility. Directly inside the second secured door was a

   
   

   desk for a monitoring correctional officer, which had a clear view into the inmate waiting room.

8. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower.

9. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room.

10. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights.

11. It is Respondent‟s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent‟s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer.

    
    

12. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent‟s experience, breathing procedures can make persons “dizzy and lightheaded.”

    He did not want her to fall, so Respondent grabbed inmate Coer‟s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.”

13. Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate.

14. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward

    
    

    motion so it‟s not really unbalanced, but her face was leaning up.”

15. After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing.

16. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window.

17. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can‟t see as clearly as you think you can.”

18. Inmate Coer did not testify at the final hearing.

    
    

    Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer‟s affidavit could be said to supplement and corroborate

    
    

    Officer Richardson‟s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer‟s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    1. Standards

       
       

20. Section 943.13(7) provides that any person employed or appointed as a correctional officer shall “[h]ave a good moral character as determined by a background investigation under procedures established by the commission.”

21. Florida Administrative Code Rule 11B-27.0011(4) defines conduct that constitutes a failure to maintain good moral character that includes:

    
    

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

    
    

    * * *

    
    

    3. Having an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controllee. An unprofessional relationship is defined as:

    
    

    * * *

    
    

    b. Engaging in physical contact not required in the performance of official duties, and is defined as kissing, . . . holding hands, or any other physical conduct normally associated with the demonstration of affection. . . .

    
    

22. Section 943.1395(7) provides that:

    
    

    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 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.

       
       

       1. Burden of Proof

          
          

23. The Administrative Complaint charges Respondent with violating section 943.1395(7), and rule 11B-27.0011(4)(c), on the ground that “[o]n or about March 1, 2010, the Respondent, Gregory

    1. Nichols, did then engage in an unprofessional relationship with Tracy Coer, an inmate by engaging in physical contact with Tracy Coer, to wit: kissing.”

24. The Petitioner bears the burden of proving the specific allegations of fact that support the charges alleged in the Administrative Complaint by clear and convincing evidence.

    § 120.57(1)(j), Fla. Stat.; Dep‟t of Banking & Fin., Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); see also, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Fox v. Dep‟t of Health, 994 So. 2d 416 (Fla. 1st DCA 2008); Kany v. Fla. Eng'rs Mgmt. Corp., 948 So. 2d

    948 (Fla. 5th DCA 2007); Dieguez v. Dep‟t of Law Enf., Crim. Just. Stds. & Training Comm‟n, 947 So. 2d 591 (Fla. 3d DCA 2007); Pou v. Dep‟t of Ins. and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

    
    

25. Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof

    entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

    
    

    Clear 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.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although [the clear and convincing] standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

    Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

    
    

    1. Williams Rule Evidence

       
       

26. Petitioner introduced the affidavit of inmate Coer both as substantive evidence of the incident charged -- the weight and effect of which is discussed in the findings of fact herein -- and as evidence of two collateral and uncharged incidents designed to demonstrate Respondent‟s intent or absence of mistake or accident.

27. The affidavit of inmate Coer is hearsay, admissible only “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.” § 120.57(1)(c). The hearsay nature of the affidavit was discussed at the hearing. The affidavit was admitted in evidence over Respondent‟s objection, with the caveat that the undersigned could not base findings of fact on unsubstantiated hearsay evidence.

28. In an administrative proceeding, "similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." § 120.57(1)(d). The chapter 120 provision

    
    

    regarding similar fact evidence is substantively identical to that applicable to civil and criminal proceedings established in section 90.404(2). Both derive from the rule established in Williams v. State, 110 So. 2d 654 (Fla. 1959), thus its common appellation as “Williams Rule” evidence.

29. In his analysis of case law construing the use of evidence of similar acts, Professor Ehrhardt concludes that “the offering party must prove that the defendant committed the collateral act by clear and convincing evidence.” (emphasis added). Charles W. Ehrhardt, EHRHARDT‟S FLORIDA EVIDENCE, §404.9 (2010 Edition).

30. Inmate Coer‟s affidavit does not supplement or explain admissible evidence regarding the alleged collateral acts. Standing on its own, the hearsay affidavit is not clear and convincing evidence that the collateral acts occurred, and does not form the basis for a finding of proof of intent, or proof that the charged act was not the result of mistake or accident. See Frank T. Brogan, as Comm‟r of Educ. v. Jack Rose, Case No.

    96-0333, 1996 Fla. Div. Adm. Hear. LEXIS 3504 (Fla. DOAH Sept. 3,

    
    

    1996; Fla. EPC Nov. 20, 1996).

    
    

31. Even if the affidavit was admissible as evidence of the alleged similar facts, the collateral incidents described by inmate Coer differ materially from the admissible evidence of the

    
    

    charged incident provided by Officer Richardson. In addition, despite inmate Coer‟s assertion that one of the instances in which Respondent allegedly attempted to kiss her was witnessed by another officer, no correctional facility records or other evidence of any kind was proffered to substantiate the otherwise unsupported hearsay statement. Thus, the weight of the affidavit as usable evidence is insufficient to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established.

    1. Conclusions

    
    

32. Officer Richardson was credible, and there was no evidence of animus between her and Respondent to raise an inference of bias. However, Respondent‟s description of the difficulties in seeing clearly through a six-inch wide backlit window, at night, was persuasive.

33. Respondent‟s testimony was also credible, and described an event that was plausible and that could be easily misconstrued at first glance.

34. Petitioner has suggested that Respondent‟s testimony should not be credited because of his interest in the outcome of this case. Without question, any person who is the subject of a disciplinary or enforcement proceeding brought by an agency has a self-interest in the outcome. However, the undersigned is not

    
    

    prepared to discount Respondent‟s testimony solely because of his status as a party, in the absence of some flaw in the consistency or plausibility of his testimony, of something in his demeanor suggesting untruthfulness, of a history of disciplinary infractions, or of some other tangible basis for finding his description of events to be false. No tangible basis for discounting Respondent‟s testimony is found.

35. Not having inmate Coer to testify or provide non- hearsay evidence as to the incident left the undersigned with gaps and inconsistencies in the evidence that worked against the establishment of “a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.”

36. As a result of the foregoing, Petitioner has failed to prove by clear and convincing evidence that Respondent kissed inmate Coer, and therefore failed to prove by clear and convincing evidence that Respondent violated section 943.1395(7) and rule 11B-27.0011(4)(c). If this case were subject to a preponderance of the evidence burden of proof, the result may have turned differently. However, under the applicable burden, the quantum of proof adduced in this case fails to substantiate wrongdoing on Respondent‟s part warranting disciplinary action.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint.

DONE AND ENTERED this 7th day of June, 2012, in Tallahassee,

Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2012.

ENDNOTES

1/ The transmittal letter bears a date of January 5, 2011, which is clearly a typographical error.

2/ Officer Richardson was the officer assigned to the medical unit on the night of March 1, 2010. From 4:00 p.m. to 9:30 p.m., inmates come to the medical unit for the “pill line” where they take their medication. It was Officer Richardson‟s responsibility “to ensure the care, custody, and control of inmates while they were in the medical unit.” No direct explanation was provided as to why Officer Richardson was not in the medical unit for the period of time, estimated to have been no less than a half hour, between the time Respondent delivered inmate Coer to the medical unit until her treatment was completed

and she was returned to Respondent‟s custody. However, Officer Richardson testified that she made periodic security checks which may have accounted for her absence.

COPIES FURNISHED:

Elissa R. Saavedra, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 elissasaavedra@fdle.state.fl.us

Matthew O‟Connell Ward, Esquire 1241 Halifax Court

Tallahassee, Florida 32308 mattward52@gmail.com

Adrienne Del Soule, Esquire Florida Police Benevolent

Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301 adrienne@flpba.org

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel 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: 12-000063PL

Orders for Case No: 12-000063PL