STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-0191

)

OLIVER RAWLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on June 10, 1998, in Port St. Joe, Florida.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent's correctional certificate should be disciplined for the reasons cited in the Administrative Complaint filed on April 25, 1995, as amended.

PRELIMINARY STATEMENT

This matter began on April 25, 1995, when Petitioner, Criminal Justice Standards and Training Commission, issued an

administrative complaint alleging that Respondent, Oliver Rawls, a correctional officer, had violated Section 943.1395, Florida Statutes, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer have "good moral character." More specifically, the complaint alleged that in June and December 1992, while serving as a correctional officer at the Gulf Correctional Institution, Respondent committed "acts constituting sexual harassment" against two subordinates, and on May 4, 1994, he "actually and intentionally [struck] . . . a former correctional officer." For this conduct, the agency proposes to discipline Respondent's correctional certificate. On June 5, 1998, Petitioner filed an Amended Administrative Complaint, which amends the original complaint in one minor respect.

Respondent disputed these allegations and requested a formal hearing to contest the agency's proposed action. The matter was referred by Petitioner to the Division of Administrative Hearings on January 9, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated January 29, 1998, a final hearing was scheduled on April 23, 1998, in Port St. Joe, Florida. At Petitioner's request, the matter was rescheduled to June 10, 1998, at the same location.

At final hearing, Petitioner presented the testimony of Angela Godwin, Ima Millander, and Eula J. Rochelle, all former

correctional officers at Gulf Correctional Institution, and Jonathan W. Kraus, a senior inspector for the Department of Corrections. Also, it offered Petitioner's Exhibits 1-3. All

exhibits were received in evidence. Although given notice of the hearing, Respondent did not appear at final hearing.

The transcript of hearing was filed on June 25, 1998.

Proposed findings of fact and conclusions of law were filed by Petitioner on July 1, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Respondent, Oliver Rawls, is a certified correctional officer, having been issued Correctional Certificate No. 76362 on January 29, 1982, by Petitioner, Criminal Justice Standards and Training Commission (Commission). When the relevant events herein occurred, Respondent was employed as a correctional officer by the Gulf Correctional Institution (GCI) in Wewahitchka, Florida.

2. In an Administrative Complaint filed on April 25, 1995, as later amended on June 5, 1998, the Commission charged that:

   1. on July 30, 1993, Respondent committed "acts constituting sexual harassment against Angela Godwin," a correctional officer at GCI, by "grabbing her and attempting to kiss her against her will;" (b) on October 20, 1992, Respondent committed "acts constituting sexual harassment against Ima Millender," a correctional officer at GCI, by "calling her into his office and telling her that he had begun to care for her and when she

      spurned his advances, followed her home after work and attempted to stop her vehicle;" and (c) on May 4, 1994, Respondent did "intentionally strike Eula J. Rochelle, a former correctional officer . . . by trying to force his way into her home without her permission, [and] scratched and bruised her arm." Respondent disputed these allegations and initiated this proceeding.

3. Angela Godwin was a correctional officer at GCI from June 1993 to August 1994. Respondent was her immediate supervisor during her employment. She was originally assigned to work in the officer's station of the E dormitory during the

   11:00 p.m. to 7:00 a.m. shift.

   
   

4. On the evening of July 30, 1993, Godwin was working in the officer's station when Respondent knocked on the door. She let him in while he signed a logbook and answered a telephone call. Respondent then asked Godwin to let him into an adjoining laundry room. When she opened the door, and followed him a short ways into the darkened room, he grabbed Godwin by her shoulders and pulled her towards him trying to kiss her. Godwin pushed Respondent away and told him to stop. Respondent then allowed her to return to duty. Even so, Godwin was "frightened" by Respondent's conduct and felt intimidated.

5. When the incident occurred, Godwin was on probation and was afraid to report the incident for fear of losing her job. Shortly thereafter, Respondent had Godwin transferred from the control room to the tower, which is a less desirable assignment.

   It can be reasonably inferred that this employment decision was based on Godwin's rejection of Respondent's advances.

6. Ima Millender was a correctional officer at GCI from September 1992 until September 1996. Respondent served as her supervisor. In October 1992, Millender worked the 3:00 p.m. to 11:00 p.m. shift in the control room.

7. On October 20, 1992, Respondent summoned Millender to his office, which was down a hallway behind the control room. After handing her some papers to type, he told her he "had feelings" for her that were other "than job-related feelings," that he "really cared" for her, and he was "having trouble working around [her because of] his feelings."

8. Respondent also knew that Millender car-pooled with two other officers to work, and he told her that he had reassigned those officers so that she "would have at least one night [a week] driving back and forth by [herself]." Although Millender felt "uncomfortable" by Respondent's statements, and they created an intimidating working environment, she said nothing at the time because she was on probation.

9. The next evening, Millender was driving home alone around 11:30 p.m. on State Road 71. A car drove up behind her and the driver began blinking his lights. The car then pulled along side her car, and she recognized Respondent's vehicle. Respondent then pulled in front of her, braked, and forced her off the road. Millender immediately locked her doors, rolled

   down one window and asked him what he thought he was doing, and then evaded him by driving over the grass median.

   
   

10. Millender filled out an Incident Report on October 22, 1992, in which she described the conversation which occurred in Respondent's office. She later decided not to file the report.

11. Eula J. Rochelle was a correctional officer at GCI from February 1993 to February 1994. Respondent also served as her immediate supervisor. During her tenure at GCI, at Respondent's behest, Rochelle engaged in an "intimate relationship" with Respondent but eventually resigned her position to end the affair.

12. On the morning of May 4, 1994, Respondent came to her home in Panama City and knocked on the door. When she cracked open the door, Respondent attempted to force his way into the home. During a struggle at the door, Respondent grabbed Rochelle's hair and bruised her. By doing so, Respondent committed battery upon the victim. Rochelle eventually broke free and called 911 to report the incident. When the police were called, Respondent immediately left the home. Although Respondent was charged with battery, Rochelle later withdrew the charges because she "did not wish to get him in trouble" or cause him "to lose his job."

13. Respondent's correctional certificate was placed on probation by the Commission during the period of December 21,

    1994, through June 20, 1995, for driving under the influence of alcohol. As a condition of probation, Respondent was ordered not to violate any provision within Chapter 943, Florida Statutes, or Chapter 11B-27, Florida Administrative Code. Since all offenses described herein occurred before the period of probation, Respondent did not violate the terms of the Commission's order.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes.

15. Because Respondent's law enforcement certification is at risk, Petitioner bears the burden of proving the allegations in the complaint by clear and convincing evidence. See, e.g., Newberry v. Fla. Dep't of Law Enforcement, 585 So. 2d 500, 501 (Fla. 3rd DCA 1991).

16. The Administrative Complaint, as amended, alleges that Respondent violated Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.

17. Rule 11B-27.0011(4), Florida Administrative Code, specifies the type of conduct which equates to a lack of good moral character. Among other things, the following conduct

constitutes a lack of good moral character:

(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), is defined as:

1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Section 784.03, F.S. [battery]

   
   

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

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

1. Battery is defined in Section 784.03(1)(a), Florida Statutes, as occurring whenever a person "[a]ctually and intentionally touches or strikes another person against the will of the other, or [i]ntentionally causes bodily harm to another person."

2. Sexual harassment is defined in Rule 60L-28.002(1), Florida Administrative Code, as

   . . .unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature from any person directed towards or in the presence of an employee or applicant when:

   
   

   1. Submission to such conduct is either explicitly or implicitly a term or condition of an individual's employment;

      
      

   2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such

      individual; or

      
      

   3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

1. By clear and convincing evidence, Petitioner has established that Respondent (a) "intentionally" touched Eula Rochelle and caused her "bodily harm;" (b) made "requests for sexual favors" from Angela Godwin and Ima Millender; (c) made an employment decision with respect to Angela Godwin based on her "rejection of such conduct;" and (d) created "an intimidating, hostile or offensive working environment" for Angela Godwin and Ima Millender.

2. The foregoing conduct equates to battery, as that term is defined in Section 784.03, Florida Statutes, and sexual harassment, as the term is defined by Rule 60L-28.002, Florida Administrative Code.

3. Rule 11B-27.005(5), Florida Administrative Code, prescribes "a range of disciplinary guidelines from which disciplinary penalties will be imposed," absent mitigating or aggrevating circumstances. For committing the act of battery, the rule calls for suspension of an officer's certificate. For committing sexual harassment, the rule provides a penalty ranging from probation of certification with training to suspension.

4. Section (6) of the same rule requires the Commission to consider the following relevant aggrevating circumstances, all

   present in this case, in determining whether to deviate from the foregoing guidelines:

   1. Whether the officer used his or her official authority to facilitate the misconduct.

      
      

   2. Whether the misconduct was committed while the officer was performing his or her other duties.

      
      

      1. The number of violations found by the Commission.

         
         

      2. The number of prior disciplinary actions taken against the officer by the Commission.

         
         

      3. The severity of the misconduct.

      
      

      (u) Multiple counts of violations of Section 943.13(7).

      
      

5. In its proposed order, Petitioner suggests that Respondent's certification be revoked. In light of the foregoing aggrevating circumstances being presented here, revocation is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order determining that Respondent has failed to maintain good moral character as required by state law, and that his law enforcement certificate be revoked.

DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.

COPIES FURNISHED:

A. Leon Lowry, Director

Division of Criminal Justice Standards and Training

Post Office Box 1489 Tallahassee, Florida 32302-1489

Michael R. Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Oliver Rawls

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Criminal Justice Standards and Training Commission.

Docket for Case No: 98-000191

Orders for Case No: 98-000191