STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEON GANDY. )

)

Petitioner, )

)

vs. ) CASE NO. 76-1716

)

DEPARTMENT OF OFFENDER )

REHABILITATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the subject cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on October 28, 1976 1/ in Opa-Locka, Florida.

APPEARANCES

For Petitioner: Robert J. Angerer, Esquire

ERVIN, VARN, JACOBS, ODOM & KITCHEN

Attorneys at Law

305 South Gadsden Street Tallahassee, Florida 32302

For Respondent: Raymond Gearey, Esquire

General Counsel

Department of Offender Rehabilitation 1311 Winewood Boulevard

Tallahassee, Florida 32301

The Petitioner, Leon Gandy, appeals a suspension effected by the Respondent, Department of Offender Rehabilitation, for five working days without pay effective June 2. By letter dated June 1, Respondent advised Petitioner that the suspension was necessary due to his alleged negligence in reviewing and signing a disciplinary report, dated January 16, on inmate Alex Salkay, alleging intoxication which contained "grossly inaccurate information". The pertinent portion of the disciplinary report which is the subject of the appeal states that "Chief Gandy was present when the Sober-Meter Test was administered to the inmate and also when the test was completed. When questioned about the above, Chief Gandy stated that the test was administered correctly and that the test did show .30 percent grams blood alcohol content."

The suspension letter also indicated that pursuant to an inquiry conducted by the Respondent, and admitted by Petitioner, evidence reveals that Petitioner was not present when the test was administered or completed and that he did not know whether the tests had been administered correctly. Respondent therefor charged Defendant with violation of Chapter 10B-13.02(11) of the Administrative Rules and Regulations and effected his suspension as provided for in Chapter 10B-13.03 of the Administrative Rules and Regulations.

In his appeal, Petitioner alleges that: "One, there was no negligence in reviewing and signing the disciplinary report dated January 16, and any error which was involved was either non-negligent or not intentional, and two, any error which was present was not material to any other problems which were a part of this matter."

Inmate Alex Salkay appeared and testified that he was in a pre-parole work release program from November, 1975, to January 16, 1976 where he was employed at Fincher Oldsmobile in Miami, Florida. He was laid off on January 16, and interviewed with Crippin Oldsmobile in North Miami, Florida. His father, Alex Salkay, Sr., carried him to Crippin Oldsmobile where he was interviewed by the service manager and following the interview, he returned to Fincher Oldsmobile where he picked up his tools and proceeded to the Opa-Locka Community Correctional Center, stopping only at Burger King for a hamburger. Salkay was observed entering the Center by Petitioner who instructed Vernon Zier, a counselor, to administer a breatholyzer test to inmate Salkay. Salkay, upon entering the Center, summoned a friend to assist him to carry his tool box up to his room and after doing so, was met by Zier, who asked him to follow him to the main office building where he was administered the breatholyzer test. Chief Gandy was preparing to take a group of inmates to a bowling center that Friday night and was not present in the room when the breatholyzer test was administered. When Counselor Zier administered the test, he awaited the results and advised inmate Salkay that the test results were negative. Counselor Zier gave Chief Gandy the test results while he was then checking in inmates.

According to Zier, Chief Gandy told him to "write the disciplinary report to show three bands". Zier testified that he did this based on his instructions from Chief Gandy. Zier testified that while Gandy's eyes were glassy, he did not smell of alcohol. Zier told Chief Gandy that Salkay appeared to be O.K. and that he could go get supper and return to his dormitory room.

Salkay was given a copy of the charges on January 18 and a disciplinary committee considered the charges contained therein on January 19, 1976.

According to the disciplinary report, inmate Salkay plead guilty and the committee recommended a 60 day loss of "gain time" and 45 days of extra duty.

He was placed in the personality adjustment room for an indefinite period of time. Based on this action, Salkay was terminated from the work release program and sent to the Belle Glades Correctional Prison. He remained incarcerated until May 28, when an investigation was made and his "gain time" restored.

Petitioner Gandy denied that the last two sentences contained in the report of investigations were present at the time he reviewed and signed the disciplinary report. He testified that when he reviewed and signed the subject report, only the first two sentences were included therein.

Paul G. King, the Counselor who investigated the incident, testified that when it was submitted to the disciplinary committee for action, the first two sentences were the only narrations contained in the report. Two members of the disciplinary team who were present could not remember whether the language was on the report at the time of the hearing or not. However, it should be noted that Chief Gandy's name appeared on the report introduced into evidence and his signature was placed thereon following the findings and actions of the disciplinary committee.

After full consideration of the entire record, including the testimony of the witnesses present, the undersigned concludes that the action of the Respondent, Department of Offender Rehabilitation, should be sustained, based on

the facts that it relied upon in proposing the suspension to Petitioner, Leon Gandy. This conclusion is based on Counselor Zier's testimony that when he administered the Sober-Meter test, inmate Salkay's test results proved negative and that upon advising Chief Gandy that inmate Salkay showed no evidence of being drunk, he replied that he (Zier) should write the disciplinary report to reflect that inmate Salkay's test results reflected .30 percent grams blood alcohol content. Zier's testimony was not discredited by the testimony of the other witnesses and Petitioner Gandy did not deny instructing Counselor Zier to complete the report as Counselor Zier testified. Zier's testimony also reveals, without contradiction, that Chief Gandy was not present when the test was administered to inmate Salkay. It thus appears that the remaining portion of the report of the investigation was merely an attempt by Chief Gandy to shore up that portion of the charges which reflected his instructions to Counselor Zier and to sustain the action taken by the disciplinary committee. It was also noted that the Petitioner did not establish in any manner that the report had been changed after he signed the report on January 19, 1976. In these circumstances and as the reviewing authority, Chief Gandy had an obligation to see that the action taken by the disciplinary committee comported with the charges and based on Zier's uncontradicted testimony, Chief Gandy knew or should have known, that the charges were not true inasmuch as Zier testified that the breatholyzer test results proved negative. For these reasons, I find that the agency action should be affirmed and the suspension of the Petitioner, Leon Gandy, be sustained.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding.

   
   

2. The parties were properly noticed pursuant to the notice provisions of Chapter 120.57, Florida Statutes.

   
   

3. The Petitioner's action, by reviewing and signing a disciplinary report dated January 16, 1976, on inmate Alex Salkay, alleging intoxication, contained grossly inaccurate information which the defendant knew, or should have known, was false and was therefor violative of Chapter 10B-13.02(11) of the Department's Rules and Regulations.

   
   

4. The above action on Petitioner's part provides ample basis for the agency to effect the suspension of Petitioner Gandy.

RECOMMENDATION

Based on the above findings and conclusions of law, I hereby recommend that the action of the agency be affirmed and sustained.

DONE and ORDERED this 22nd day of December, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ Unless otherwise noted, all dates are in 1976.

COPIES FURNISHED:

Raymond W. Gearey, Jr., Esquire General Counsel

Department of Offender Rehabilitation 1311 Winewood Boulevard

Tallahassee, Florida 32301

Robert J. Angerer, Esquire

ERVIN, VARN, JACOBS, ODOM & KITCHEN

Attorneys at Law

305 South Gadsden Street Tallahassee, Florida 32302

Docket for Case No: 76-001716

Orders for Case No: 76-001716