STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3263

)

WILLIE L. TILLMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 27, 1992, in Daytona Beach and New Smyrna Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: John P. Booth

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Willie L. Tillman, Pro Se

2400 Spring Hollow Drive Orange City, Florida 32763

STATEMENT OF THE ISSUES

The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (the Commission), presented the testimony of Benjamin Fitts, III, Charles Henry Hickson, Edward Martin Zima, Kenneth Anderson, Jr., Bruce Duncan Bolton, Gary E. McCracken, Sonny Ray Harrison, and Michael P. Frascella. Petitioner's Exhibits 1-14, including Exhibit 13, the deposition testimony of Dwight E. Jensen, were admitted in evidence.

Tillman presented his own testimony and offered no exhibits.

Subsequent to the hearing, the Commission filed certified copies of rules in effect on the dates relevant to the charges, however those rules are not cited in the Administrative Complaint and no official recognition is taken of those rules.

The transcript was filed on September 14, 1992. By stipulation, the parties had until September 25, 1992, to file proposed findings of fact and conclusions of law. The Commission timely filed its proposed recommended order on September 23, 1992. Tillman failed to file a proposed order. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977.

   
   

2. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility.

   
   

3. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander.

   
   

4. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury.

   
   

5. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate.

   
   

6. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell.

   
   

7. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk.

   
   

8. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site.

   
   

9. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman.

10. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression.

    
    

11. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters.

    
    

12. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size.

    
    

13. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist.

    
    

14. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things.

    
    

15. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force.

    
    

16. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman.

    
    

17. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once.

    
    

18. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds.

    
    

19. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore.

    
    

20. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore.

21. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days.

    
    

22. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate.

    
    

23. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created.

    
    

24. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back.

    
    

25. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area.

    
    

26. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed.

    
    

27. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning.

    
    

28. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck.

    
    

29. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.

    CONCLUSIONS OF LAW

    
    

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

    
    

31. The Administrative Complaint in this case charges Tillman with violating the provisions of Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, for failure to maintain the qualifications established in Section 943.13(7).

32 Sections 943.1395(5) and (6), Florida Statutes (1989) state in pertinent part:

1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

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

   
   

   Section 943.13(7) states:

   
   

3. Have a good moral character . .

1. Rule 11B-27.0011(4)(c), Florida Administrative Code (1992), defines an officer's failure to maintain good moral character as

   
   

   (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 . . . .

   
   

2. The Commission also sought at hearing and in its proposed order to include violations of Sections 784.03, 951.07, and 951.17, Florida Statutes, and Rules 33-8.003 and 33-8.013, Florida Administrative Code, in its charges, but no such allegations can be found in the Administrative Complaint. It is well- settled that no disciplinary action can be taken on charges and violations not specifically alleged in the complaint. See e.g. Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990); Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984); and Wray v. Department of Professional Regulation, 435 So.2d 312 (Fla. 1st DCA 1983). Therefore, these new and previously unknown charges are not considered here.

3. The Commission also states in its proposed order that Rule 11B- 27.0011(4)(c) was not adopted until 1988, after certain of the misconduct alleged in this case. However, it is simply a codification of the definition of "good moral character" which had been established in earlier case law. Accordingly, the rule definition can appropriately be considered here.

   
   

4. The following definitions have been provided by different courts for good moral character:

   
   

   Moral character as used in this statute means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

   Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). [Lack of good moral character] requires an

   inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

   
   

   Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978).

   
   

5. The clear and convincing evidence is that Tillman provoked situations with inmates and then used excessive force on at least three occasions. Tillman's behavior was in direct contravention of his training and the rules and policies of the Volusia County Department of Corrections. Tillman additionally failed to report or delayed reporting his use of force and did not immediately seek medical treatment for the inmates he struck.

   
   

6. Additionally, Tillman has displayed a complete disregard for the truth in his varied and conflicting explanations offered to justify his conduct.

   
   

7. A Final Order in a similar case has established the Commission's interpretation of moral character. In Criminal Justice Standards and Training Commission v. Minor, DOAH Case No. 89-6409 (FDLE Final Order October 3, 1990, adopting in toto the Recommended Order entered June 1, 1990), the Commission found:

   
   

   Resort to brute force with so little provocation, its unjustified use against a person for whose welfare Respondent was responsible, and untruthfulness about these important matters indicate the type of bad moral character that should disqualify would- be correctional officers. Nothing in the evidence suggested that unusual circumstances at the jail or in Respondent's private life mitigate his culpability.

8. The competent and credible evidence requires a conclusion that Tillman does not possess the necessary good moral character to be certified as a correctional officer. The circumstances of this case, especially the repeated nature of these incidents despite clear evidence of counseling to the contrary, mandates the revocation of Tillman's certification.

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 and therein revoke certificate no. C-3171 issued to Willie

L. Tillman.

DONE and ENTERED this 14th day of October, 1992, in 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 14th day of October, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted 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 finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26).

2. Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

John P. Booth

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Willie L. Tillman

2400 Spring Hollow Drive Orange City, Florida 32763

Jeffrey Long, Director Criminal Justice Standards and

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Criminal Justice Standards and

Training Commission Post Office Box 1489

Tallahassee, Florida 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 contact 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: 92-003263

Orders for Case No: 92-003263