STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7753

)

STEVEN S. WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 4, 1991, in Ocala, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Sharon D. Larson

Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Steven S. Wright, Pro Se

720 East Broom Street Clermont, Florida 34711

STATEMENT OF THE ISSUES

The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of law Enforcement (FDLE), Criminal Justice Standards and Training Commission (the Commission), presented the testimony of Brian David Pimm and Edward Collier. FDLE had Petitioner's Exhibits 1-7 admitted in evidence. It amended the date in the Administrative Complaint, paragraph 2, to June 20, 1989.

Mr. Wright presented his own testimony and introduced no exhibits.

The transcript of the proceedings was filed on April 11, 1991. FDLE timely filed its proposed findings of fact and conclusions of law on May 2, 1991.

Proposed orders were to be filed by May 11, 1991. Mr. Wright failed to file a

proposed order. A specific ruling on each of Petitioner's proposed findings of fact has been made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988.

   
   

2. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989.

   
   

3. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process.

   
   

4. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket.

   
   

5. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift.

   
   

6. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick.

   
   

7. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make."

   
   

8. Mr. Wright did not look at the note then. He forgot about it and finished his work.

   
   

9. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it.

   
   

10. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done.

    
    

11. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report.

    
    

12. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away.

13. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00.

    
    

14. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier.

    
    

15. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact.

    
    

16. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements.

    
    

17. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief.

    
    

18. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

20. By its Administrative Complaint, the commission charged Mr. Wright with violating Section 943.1395(5) and (6), Florida Statutes, and Rule 11B- 27.0011(4)(c), Florida Administrative Code, by failing to maintain the qualifications for certification established in Section 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.

    
    

    Section 943.1395(5) and (6) states:

    
    

    1. The commission shall revoke the certifi- cation of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) . . . .

       
       

       * * *

       
       

    2. 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 in lieu of revocation of certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .

       3. Successful completion by the officer of any basic recruit, advanced, or career development training, or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

          
          

          As required by Section 943.1395(6), the Commission has promulgated Rule 11B- 27.0011 which defines good moral character. Rule 11B-27.0011(4)(c) defines one form of failure to maintain good moral character. It states:

          
          

          (c) The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime . . . .

          
          

21. Factually, the Commission charged Mr. Wright with "unlawfully" receiving U.S. currency from a prisoner or having barter dealings with a prisoner. Nowhere in the Administrative Complaint does the Commission mention Rule 33-4.002(6), Florida Administrative Code, yet FDLE argues that the alleged conduct is made unlawful by that rule. Specifically, the rule states:

    
    

    No employee shall solicit, trade, barter, or accept any gift or any form of compensation from . . . an inmate . . . .

    
    

22. The burden is on the Petitioner, the Commission, to prove the allegations made in the Administrative Complaint by clear and convincing evidence. That burden has not been met. The credible competent and substantial evidence shows only that Mr. Wright received $3.00 from Gholson as a result of subterfuge by Gholson. Mr. Wright never knowingly accepted that $3.00. He certainly never received any other item or compensation from Gholson. According to Webster's Ninth New Collegiate Dictionary, to "accept" means "1 a: to receive willingly (accept a gift)." Mr. Wright never willingly accepted money from Gholson.

    
    

23. Under the circumstances as they are established in the Findings of Fact, there is no evidence to support the conclusion that Mr. Wright is lacking in good moral character. As that term is defined in Rule 11B-27.0011(4)(c), there is no evidence that Mr. Wright "perpetrated" an act or conduct which raises substantial doubt about his honesty or respect for the rights of others. To conclude otherwise would require a showing that Mr. Wright "perpetrated" the act and that any doubt about his honesty is "substantial." According these terms their clear meaning 1/, the evidence adduced falls far short of meeting those requirements.

24. Having concluded that Mr. Wright has not failed to maintain good moral character and has not accepted compensation from an inmate, it finally must be concluded that Mr. Wright has not violated Section 943.13(7), Section 943.1395(5) or (6), or Rule 11B-27.0011(4)(c). The charges should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a Final Order dismissing all charges against Steven S. Wright.

RECOMMENDED this 10th day of June, 1991, at Tallahassee, Florida.

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991.

ENDNOTES

1/ Webster's Ninth New Collegiate Dictionary contains these definitions. "Substantial" means "1 a: consisting of or relating to substance b: not imaginary or illusory : REAL, TRUE . . . . 2 b: considerable in quantity : significantly large . . . ." "Perpetrate" means "to bring about or carry out (as a crime): COMMIT."

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7753

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards

and Training Commission

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed findings of fact: 1(1); 2(2); and 3(1).

   
   

2. Proposed findings of fact 4-7, 9, 11, and 13 are subordinate to the facts actually found in the Recommended Order.

   
   

3. Proposed findings of fact 8, 10, and 15 are irrelevant.

   
   

4. Proposed findings of fact 12, 14, 16, 17, and 18 are unsupported by the credible, competent and substantial evidence.

COPIES FURNISHED:

Sharon D. Larson Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Steven S. Wright

720 East Broom Street Clermont, FL 34711

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Rodney Gaddy, General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 90-007753

Orders for Case No: 90-007753