STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENTOF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION )

)

Petitioner, )

)

vs. ) Case No. 97-3524

)

BEVERLY MORRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on January 6, 1998, in Arcadia, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: No appearance

STATEMENT OF THE ISSUE

Did Respondent commit the offense alleged in the Administrative Complaint and, if so, should Respondent's Correction Certificate No. 101468 be revoked, suspended, or otherwise disciplined?

PRELIMINARY MATTERS

By an Administrative Complaint dated June 30, 1997, and filed with the Division of Administrative Hearings (Division) on August 1, 1997, the Criminal Justice Standards and Training Commission (Commission) is attempting to revoke, suspend or otherwise discipline Respondent's Correction Certificate No.

101468. As grounds therefor, the Commission alleges that Respondent, on about October 20, 1996, did engage in an unprofessional relationship with an inmate by engaging in physical contact with the inmate in that Respondent touched, or rubbed the inmate's stomach, or chest, or back area which is prohibited by Rule 33-4.002, Florida Administrative Code. The Administrative Complaint further alleges that such conduct violated Section 943.1395(6) or (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, and thereby Respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.

By an Election of Rights, Respondent denied the allegations of the Administrative Complaint, and requested an administrative hearing pursuant to Chapter 120, Florida Statutes.

By letter dated July 31, 1997, the Commission referred the matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Commission presented the testimony of Mark McFry, Richard Wuest, Darron Duval, and Lewis Williams. The

Commission's Exhibits One through Three were received as evidence.

The Respondent failed to appear at time scheduled for the hearing and did not advise the undersigned as to why she had failed to appear. On January 13, 1998, an Order to Show Cause was issued wherein Respondent was given an opportunity to show cause why she failed to appear at the hearing. Subsequently, a telephone conference call was scheduled in order to give Respondent an opportunity to advise the undersigned as to why she failed to appear. During this telephone conference, Respondent advised the undersigned that she did not wish to present her side of the case. On February 25, 1998, an order was entered concluding the hearing and setting a time for filing proposed recommended orders.

The transcript of this proceeding was filed with the Division on January 15, 1998. The Commission timely filed its proposed recommended order within the extended time frame set out in the order of February 25, 1998. The Respondent elected not to file a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, Respondent Beverly A. Morris was a certified correctional officer, having

   been certified by the Criminal Justice Standards Training Commission on October 13, 1986, and issued Correctional Certificate No. 101468.

2. At all times material to this proceeding, Respondent was employed by the DeSoto Correctional Institution.

3. On October 20, 1996, Respondent was assigned as supervisor in "A" Dormitory at the DeSoto Correctional Institution.

4. On October 20, 1996, Inmate Richard Lloyd was assigned to, and a resident of, "H" Dormitory at the DeSoto Correctional Institution.

5. At all times material to this proceeding, Correctional Officer Mark McFry was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer McFry was assigned to east side patrol on the perimeter road.

6. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer McFry observed Respondent with Inmate Richard Lloyd. During this same period of time, Officer McFry also observed Respondent repeatedly touch Inmate Richard Lloyd by rubbing her hand on his stomach, chest, and back.

7. Officer McFry did not report the incident immediately but waited until October 25, 1996, some five days later to report the incident.

8. At all times material to this proceeding, Officer Richard Wuest was employed in security with the DeSoto

   Correctional Institution. On October 20, 1996, Officer Wuest was assigned to west side patrol on the perimeter road. On

   October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer Wuest observed Respondent with Inmate Richard Lloyd.

   During this same period of time on October 20, 1996, Officer Wuest also observed Respondent repeatedly touch Inmate Lloyd by rubbing her hand on his stomach, chest, and back.

9. Officer Wuest did not report the incident but was named as a witness in Officer McFry's report.

10. There is insufficient evidence to show that Respondent advised Inmate Lloyd that she was not going to take a polygraph, notwithstanding the testimony of Darron Duval which I find lacks credibility.

11. Subsequent to this incident, Inmate Lloyd was transferred from DeSoto Correction Institution to Hardee Correctional Institution.

12. Respondent wrote Inmate Lloyd a letter dated July 7, 1997, and enclosed a photograph of herself and her daughter which was intercepted by the officials at Hardee Correctional Institution.

13. There was no evidence that any other prior violation had been committed by the Respondent or that any other prior disciplinary action had been taken against the Respondent by the Commission.

14. There was no evidence presented as to what, if any, disciplinary action had been taken against the Respondent for this incident by the DeSoto Correctional Institution.

    CONCLUSIONS OF LAW

    
    

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

16. Section 943.13(1) through (11), Florida Statutes, establishes the minimum qualifications for correctional officers in the State of Florida. Subsection (7), provides that correctional officers must::

    (7) Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

17. Rule 11B-27.0011(4)(c)3.b., Florida Administrative Code, provides:

    (4) 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:

    * * *

    (c) The perpetration by the officer of an act or conduct which constitutes:

    * * *

    3. Having an unprofessional relationship with an inmate. . . . An unprofessional relationship is defined as:

    * * *

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

    
    

18. Rule 33-4.002(27), Florida Administrative Code, provides:

    (27) The Department of Corrections requires all employees to familiarize themselves with all rules and regulations pertaining to their positions and duties, and that employees abide by these rules and regulations. The following rules of conduct and performance standards are applicable both on and off the job to all Department of Corrections employees. Some of these rules of conduct are found again in abbreviated form in the next section titled "Range of Disciplinary Actions"; however, all rules of conduct are enforceable by appropriate disciplinary action regardless of whether they are listed in the range of disciplinary actions.

    * * *

    (27) Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No

    personal or business relationships are permitted. Marriage between employees and inmates is not permitted.

    
    

19. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Department has shown by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint, thereby establishing an unprofessional relationship with Inmate Richard Lloyd which is prohibited by law and rule.

20. Pursuant to Section 943.1395(8), Florida Statutes, the Commission adopted Rule 11B-27.005(5)(c)5., Florida Administrative Code, which provides:

    (5) When the Commission finds that certified officer has committed an act which violates Section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

    * * *

    (c) For the perpetration by the officer of an act or conduct, as described in Rule 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime, as described in paragraphs (5)(a) and (b), of this rule, the action of the Commission shall be to impose a penalty ranging from the issuance of a

    reprimand to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances, include the following:

    * * *

    Violation: Recommended

    Penalty Range:

    * * *

    5. Unprofessional Revocation relationship with an

    inmate. . . .

    
    

    Since Respondent's conduct does not constitute a crime as described in Rule 11B-27.005(5)(a) and (b), Florida Administrative Code, the penalty range is from the issuance of reprimand to revocation.

21. A review of the aggravating and mitigating circumstances set out in Rule 11B-27.005(6), Florida Administrative Code, shows that: (a) the conduct was committed while Respondent was performing her duties; (b) there has been no other prior violations by the Respondent; (c) there has been no prior disciplinary action taken by the Commission against the Respondent; (d) there has been no showing of any danger to the public due to Respondent's conduct, particular in light of Officer McFry's and Officer Wuest's failure to timely report the incident; (e) Respondent has been certified approximately 12 years; (f) the penalty imposed will have a deterrent effect; and

(g) the penalty imposed will have an effect on the Respondent's livelihood.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, and a review of the aggravating and mitigating circumstances set out in Rule 11B-27.005(6), Florida Administrative Code, it is recommended that the Commission suspend Respondent's Correctional Certificate No. 101468 for a period of one year and, upon being reinstated, that Respondent be placed on probationary status for

a period of six months subject to terms and conditions imposed by the Commission.

DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida.

_ WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998.

COPIES FURNISHED:

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

Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Michael Ramage General Counsel

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

Karen D. Simmons Assistant General Counsel

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

Beverly A. Morris

1811 Southwest Hendry Street Arcadia, Florida 34266

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: 97-003524

Orders for Case No: 97-003524