STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1583

)

CRAIG C. McWHORTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on to be heard before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on September 7, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dennis S. Valente, Esquire

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

For Respondent: No Appearance

This cause was initiated upon an Administrative Complaint filed against the Respondent Craig C. McWhorter, alleging that on or about June 9, 1982, the Respondent, a corrections officer, was reprimanded for making an untruthful report, failing to follow instructions and being absent without leave. On or about June 17, 1982, and June 23, 1982, the Respondent was allegedly asleep on duty at a perimeter post of the Broward Correctional Institution and absent without leave on the latter of the two days. It is charged that on June 24, 1982, the Respondent intimidated employees entering the institution by pointing a shotgun into the air and having it appear as if he were pumping a shell into the chamber. On or about June 25, 1982, it is alleged in the complaint that the Respondent was found asleep on duty in a vehicle and apparently under the influence of an intoxicant or a drug. On the respective dates of December 31, 1981, July 22, 1981, and May 11, 1981, the Respondent allegedly failed to follow the chain of command in reporting an incident, failed to maintain a constant vigil while assigned to a perimeter post as a guard, and allegedly used unnecessary force on an inmate. It is thus charged that the Respondent is not qualified to hold a certificate as a corrections officer in the State of Florida because of conduct constituting willful neglect of duty and incompetence, seriously reducing his effectiveness as a corrections officer for purposes of Sections 943.13 and 943.145, Florida Statutes.

At the hearing in this cause the Petitioner presented Exhibits A through M, all of which were admitted into evidence, and presented nine witnesses.

The issue to be resolved concerns whether the Respondent committed the violations charged, including violations of Chapter 11B-16, Florida Administrative Code, by the alleged instances of improper attendance to his duties.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I.

   
   

2. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post.

   
   

3. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot,

   glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that

   he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion.

   
   

4. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G)

   
   

5. Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981.

   
   

6. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however.

   
   

7. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

9. Section 943.145 provides that the Criminal Justice Standards and Training Commission shall establish administrative procedures for the issuance, denial, suspension or revocation of law enforcement officer and correctional officer certification in conformance with Chapter 120, Florida Statutes. That section provides in pertinent part at Subsection (3)(a) through (c):

   1. Grounds for revocation or suspension of certification shall consist of:

      1. Failure of the certificateholder to maintain qualifications established in s.

         943.13 or specific standards promulgated thereunder as rules.

      2. Falsification or a willful material misrepresentation of information in an employment application to an employing agency.

      3. The commission of conduct by the certificateholder constituting gross insubordination, gross immorality, habitual drunkness, willful neglect of duty, incompetence or gross misconduct which seriously reduces the certificateholder's effectiveness to function as a law

         enforcement officer or a correctional officer.

         
         

         Rule 11B-27.05, regarding revocations or suspensions of certification essentially tracks the above statutory language and does not vary from it in any manner pertinent hereto.

         
         

10. Since no evidence whatever has been adduced regarding use of unnecessary force upon an inmate, that charge is unproven. The evidence in this record however establishes without question that the Respondent, on July 22, 1981, was inattentive to his duties in that he was performing mechanical work on his vehicle when he should have been maintaining constant vigil on his guard post. There is no question that the Respondent was untruthful in reporting his version of an incident occurring on May 25, 1982, involving his leaving his post, being absent without leave and at a place substantially removed from his work place in order to have breakfast. Such conduct, especially the Respondent's falsehood, constitutes willful neglect of his duties as a certified correctional officer, as well as gross misconduct which seriously reduces his effectiveness to function as a correctional officer, given the doubts as to his trustworthiness that such conduct has implanted in the minds of his fellow correctional officers who must depend on him in their day-to-day duties in a high risk job (aside from its effect on the attitudes of the inmates for whose security he is responsible).

    
    

11. The evidence of record and the above findings establishes that the Respondent was asleep on duty at his perimeter guard post on two occasions, June 17, 1982, and June 25, 1982. There is also no question that the Respondent was under the influence of an intoxicant when found sleeping on June 25, 1982. It has not been established, however, for purposes of the above authority, that he has been guilty of habitual drunkenness since drunkenness on only one occasion has been established. Such repetitive instances of sleeping on duty, coupled with the aggravating factor of intoxication on one of those two occasions, when considered together, however, constitute another example of gross misconduct seriously reducing his effectiveness as a correctional officer. The incident on June 24, 1982, involving the Respondent intimidating employees entering the institution by pointing a shotgun into the air and pumping a shell into chamber, or giving the appearance of doing so, constitutes a willful neglect of his duties in view of the unrefuted evidence showing that it is against department policy for an officer to remove a shotgun from his vehicle without "probable cause" for using it.

12. The two instances of sleeping on his post in and of themselves might not constitute instances of gross misconduct seriously reducing his effectiveness; however, the fact that on one of the two occasions he was established to be intoxicated and that the symptoms which characterized his conduct on that occasion were observed by the Petitioner's witnesses on other occasions during the period of time of his employment, reveal that at least one of these two "sleeping instances" was not merely a situation when he inadvertently dozed off for a short period of time while on his guard post at a late hour of the night or early morning. Rather, his lack of wakefulness is shown to be aggravated on at least one of the two occasions by use of an intoxicant of some type. When the influence of such a substance is allowed to affect his performance of his duties in such a "high risk" position of responsibility (by the Respondent's own volition), such conduct clearly constitutes gross misconduct seriously reducing his effectiveness as a corrections officer.

    
    

13. In that regard, the Petitioner's witnesses' testimony and description of the Respondent's conduct concerning slurred, incoherent speech, apparent disorientation, undilated eyes and seeming mental confusion established that they were capable by training and experience of forming a coherent, accurate impression that the Respondent was in an intoxicated condition on the second occasion when he was asleep on his post. The witnesses had observed such conduct on non-specific occasions in the past as well as the Respondent's normal unintoxicated demeanor. There is no question that if a Respondent's conduct, appearance, statements, and acts with regard to a particular occasion are first sufficiently described by a witness, then that witness can competently express an opinion regarding whether such a Respondent was under the influence of an intoxicant to the extent that his normal faculties were impaired. Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970). Further, these witnesses, in describing the Respondent as being in an intoxicated condition on the June 25, 1982, occasion and other observed occasions in the past, demonstrated their ability, as co-employees who spent a substantial period of time in the company of the Respondent, to competently compare and describe his condition at those times with the Respondent's normal unintoxicated condition. Their testimony, therefore, is thus even more competent than the standard required for lay witnesses giving opinions as to drunkenness which was enunciated in City of Orlando v. Ford, 220 So.2d 661 (Fla. Appeals 1969).

In summary, there is no doubt, given the evidence in the record and the above findings, that the Respondent has been guilty of gross misconduct which results in a serious reduction of his effectiveness as a correctional officer and, with regard to the instance of being absent without leave when he was supposed to be manning his guard post, that he has been proven guilty of willful neglect of his duties. The evidence thus establishes that the Respondent does not exhibit sufficient traits of personal responsibility to justify continued licensure.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is,

RECOMMENDED:

That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked.

DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983.

COPIES FURNISHED:

Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mr. Craig McWhorter

1131 Northeast 201 Terrace

North Miami Beach, Florida 33179

G. Patrick Gallagher, Director Criminal Justice Standards and

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

James W. York, Executive Director Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Docket for Case No: 83-001583

Orders for Case No: 83-001583