STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-6053

)

DENNIS W. ZEIGHLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on December 19, 1997, in Jasper, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302-1489

For Respondent: Dennis W. Zeighler, pro se

1301 Campbell Street

Lake City, Florida 32055

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a correctional officer in violation of Section 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

On November 12, 1996, Petitioner issued an Administrative Complaint which charged Respondent with failure to maintain good moral character as a result of an incident where Respondent was alleged to have bartered with an inmate to obtain a watch from the inmate.

Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. On December 23, 1996, the matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of three witnesses and six exhibits. Respondent testified in his own behalf.

A transcript of the final hearing was filed with the Division of Administrative Hearings on January 15, 1998. Proposed findings of fact submitted by the parties have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Dennis W. Zeighler, holder of Corrections Certificate Number 145432 issued March 25, 1994.

2. Respondent was employed as a sworn Corrections Officer with the Hamilton Correctional Institution (HCI) from March 25, 1994 to September 22, 1994.

3. During his employment with HCI, Respondent came to know Luis Nieves, an inmate at the institution. Nieves offered to sell Respondent a gold Seiko watch for $15.

4. Respondent was uncertain as to whether he should buy the watch, but accepted it from Nieves and placed it in his desk drawer at HCI. Later, on the way home, Respondent mailed a money order for $15 to Nieves in an envelope bearing the return address of Nieves’ sister-in-law.

5. Following discussion that evening with his brother, also a correctional officer, Respondent became concerned about the transaction. Respondent consulted his copy of the Department of Corrections Policy Manual and realized he wanted no part of the transaction. Upon his return to work the next morning, Respondent removed the watch from his desk and returned it to inmate Nieves.

6. Respondent told Nieves that the transaction was "not right" and that he, Respondent, did not want to lose a job that he loved. Respondent also told Nieves to keep the money.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

8. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent has failed to maintain the good moral character

   required by Section 943.13(7), Florida Statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Here, Petitioner’s case is circumstantial at best.

9. In the instant case, the evidence clearly shows that Respondent violated provisions of Section 944.38, Florida Statutes, which read as follows:

   944.38 Acceptance of remuneration from contractor; dealing or barter with prisoners; interest in contract; penalty.–

   1. No officer or employee of the department shall receive any compensation whatsoever, directly or indirectly, for any act or service which he may do or perform for or on behalf of any officer or employee or agent, or employee of a contractor; nor shall any officer or employee of the department or the state be interested, directly or indirectly, in any contract or purchase made, or authorized to be made, by anyone for or on behalf of the department.

   2. No officer or employee of the department or of the state, or any contractor, or employee of a contractor, shall, without permission of the department, make any gift or present to a prisoner, or receive the same from any prisoner, or have any barter or dealings with any prisoner.

   3. For any violation of the provisions of this section the officer or employee of the state shall be discharged from his office or service; and every contractor, or employee, or agent of a contractor engaged therein, and a party thereto, shall be expelled from the institutional grounds, and not again permitted within the same as a contractor, agent, or employee. (Emphasis Supplied)

10. Provisions of Section 944.38, Florida Statutes, subject to explication by Petitioner of the definition to be subscribed to the terms "barter or dealings," could arguably justify Respondent’s termination of Petitioner’s employment.

11. Discipline of Respondent’s certification is, however, another issue. While evidence received at the final hearing indicates that Respondent, a newly certified officer of three or four months at the time of the incident, did, in a technical sense, fail to maintain good moral character when he consummated the deal for the inmate’s watch by the mailing of the money order, certain mitigating factors should be considered. Rule 11B-27.005(6), Florida Administrative Code. Respondent has no

    record of previous disciplinary actions; he realized no pecuniary benefit and forfeited $15; and there was no danger to the public as a result of Respondent’s lapse. Notably, Respondent never took the subject watch off of the premises of HCI. Upon review and consideration of his actions, he wisely determined to return the watch to Nieves’ possession the very next morning.

12. Rule 11B-27.0011(4), Florida Administrative Code, defines "good moral character" for purpose of implementation of disciplinary action by Petitioner and reads as follows:

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 316.193, 316.1935, 327.35, 409.325, 741.30, 784.011, 784.03, 784.047, 784.048, 784.05(1), (2), 790.01(1), 790.10, 790.27, 794.027, 796.07, 800.02, 800.03, 806.101,

          806.13, 810.08, 812.014, 812.015, 812.14,

          817.235, 817.49, 817.563(2), 817.565,

          827.04(2) and (3), 827.05, 831.30,

          831.31(1)(b), 832.05(2) and (4), 837.012,

          837.05, 837.06, 839.20, 843.02, 843.03,

          843.06, 843.085, 847.011(1) and (2), 856.021,

          870.01(1), 893.13, 914.22(2), 944.35(3),

          944.35(7)(a), 944.37, 944.39, F.S., or any

          principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been committed or completed, would have been a felony offense.

       3. The perpetration by the officer of an act or conduct which constitutes:

    1. Excessive use of force.

    2. Misuse of official position, as defined by Section 112.313(6), F.S.

    3. Having an unprofessional relationship with an inmate, detainee, probationer, or parolee, or community controllee. An unprofessional relationship is defined as:

       1. Having written or oral communication that is intended to facilitate conduct which is prohibited by Rule Chapter 11B-27, F.A.C.

       2. Engaging in physical contact which is prohibited by law or rule.

    4. Sexual harassment involving physical contact or misuse of official position.

    5. Engaging in sex while on duty.

    6. False statements. (Emphasis Supplied)

13. Respondent had communications with Nieves regarding the subject watch. Respondent’s action must be viewed as oral communication that facilitated and culminated in an unprofessional relationship with the inmate, which was mitigated by Respondent’s reflection and correction of his course of behavior.

14. As codified in Rule 27.0005(5)(c)5., Florida Administrative Code, Petitioner has determined that the range of disciplinary action to be imposed in such situations runs the gamut of probation to revocation.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of unprofessional conduct and placing his certification on probationary status upon such reasonable conditions and for such reasonable period of time as shall be determined appropriate by The Criminal Justice Standards and Training Commission.

DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998.

COPIES FURNISHED:

Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Dennis W. Zeighler 1301 Campbell Street

Lake City, Florida 32055

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, Esquire Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-006053

Orders for Case No: 96-006053