STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2299

)

WAYNE A. THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice, a formal Section 120.57(1), Florida Statutes hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on April 3, 1984, in Jacksonville, Florida. The Recommended Order is being entered following receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on April 23, 1984. The Petitioner's proposed Recommended Order has also been considered. That proposal was filed with the Division of Administrative Hearings on May 1, 1984. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. To the extent that the proposal is inconsistent with the Recommended Order, it has been rejected as being irrelevant, immaterial or contrary to facts found.

APPEARANCES

For Petitioner: Dennis S. Valente, Esquire

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

For Respondent: Clarence E. Brown, Esquire

Post Office Box 40 Starke, Florida 32091

ISSUES

The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.

FINDINGS OF FACT

1. Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy.

   
   

2. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent.

   
   

3. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent.

   
   

4. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.)

5. When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution.

   
   

6. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.)

   He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983.

   
   

7. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy.

   
   

8. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer.

   
   

9. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

11. By Administrative Complaint, Respondent is charged in that "on or about March 3, 1983, Respondent entered into a drug trafficking agreement with an inmate." The Petitioner has failed to meet its burden of proof in establishing that the Respondent was guilty of entering into a drug trafficking agreement with an inmate. Although proof has been made related to the transmittal of contraband, U.S. currency, that allegation was not made in the Administrative Complaint and the Respondent may not be found guilty of facts related to that transmittal. Therefore, Respondent is not found to have

violated Section 943.13 as implemented by Section 943.145(3)(a), Florida Statutes, or 943.145(3)(c), Florida Statutes.

Based upon the facts found and the conclusions of law reached, it is RECOMMENDED:

That a final order be entered which dismisses the subject Administrative Complaint.

DONE AND ENTERED this 27th day of June 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 27th day of June 1984.

COPIES FURNISHED:

Dennis Valente, Esquire Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Terrence M. Brown, Esquire

P.O. Drawer 40

Starke, Florida 32091

Darrell G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 83-002299

Orders for Case No: 83-002299