vs. ) Case No. 98-2825
Respondent. )
A hearing was held in this case in Tampa, Florida, on October 20, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Mary L. Greenwood, Esquire
Greenwood & Associates Law Group, P.A. 2130 West Brandon Boulevard
For Respondent: Lynne T. Winston, Esquire
The issue for consideration in this case is whether Petitioner should be granted an exemption from disqualification from working with children.
By letter dated May 6, 1998, Perry S. Turner, Inspector General of the Department of Juvenile Justice, advised the
Petitioner herein, Brian Reed, that his request for an exemption from disqualification from employment in a direct caretaker’s position with the Department had been denied because of his prior conviction of several crimes which constituted felonies.
Petitioner thereafter requested formal hearing and this hearing ensued.
At the hearing, Petitioner testified in his own behalf and presented the testimony of Loretta Longworth, an administrative assistant in the personnel management division of the Agency for Community Treatment Services, (ACTS); Kenneth H. Hogue, a program supervisor with ACTS and the supervisor of Bradlee Manor where Petitioner worked; Lawrence F. Douglass, an addictions counselor with ACTS and a personal friend of Petitioner; and Nadine Sheron Griffith, a teacher in Hillsborough County and an acquaintance of Petitioner through Narcotics Anonymous. Petitioner also introduced Petitioner’s Exhibits 1 through 7, 9 and 10, and 12
through 15.
Respondent presented the testimony of Donald W. Lewis, a senior management analyst for the Department’s District 6 and a member of the District Exemption Committee, and Perry S. Turner, Inspector General for the Department of Juvenile Justice.
No transcript of the proceedings was provided, but subsequent to the hearing both parties submitted matters which were carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Department of Juvenile Justice (DJJ) was responsible for administration of a program whereby Departmental employees were screened for employment with the Department to ensure that only persons qualified though training, experience, and behavior had direct contact with clients of the Department. Petitioner, Brian Reed, was employed by ACTS as a drug laboratory technician on the alcohol, drugs, and mental health, (ADM), side of Bradlee Manor, a residential facility operated by the DJJ.
Bradlee Manor also operates a program for the DJJ for children between the ages of 10 and 13 who have been convicted of felony offenses. Mr. Reed also worked on the department’s side of the facility for about six months when the facility first opened, but found that he did not like it. His preference was to work with children with a substance abuse problem, and as a result, he was transferred to the ADM side of the facility. He does not want to work on the Department’s side but instead wants to continue working with the substance abuse residents because he is good at it and he likes it. However, as a part of his job it is necessary for him to come into contact with the DJJ residents from time to time for such things as lab work, and serving as a driver when no one else is available.
Throughout his five and a half years of employment at the institution, Petitioner has received periodic performance appraisals. At first, admittedly, he had some minor problems with the accomplishment of his duties, but as he learned the
requirements of his job, his difficulties disappeared. At no time were any of his problems related to his discipline or inappropriate behavior, and only on one report was his performance classified as conditional. On all other reports he has been rated either satisfactory or above satisfactory. There are no recorded instances of inappropriate behavior recorded in Petitioner’s employment file. In fact, the supervisor who at one time rated him lower than satisfactory later requested Petitioner be reassigned with him to a new facility.
Petitioner has a criminal record. In June 1983, when he was a young man, he was arrested for car theft and for stealing a radio from the car and pawning it. At the time of this offense, Petitioner was 18 years old and almost consistently under the influence of alcohol and drugs, and he admits to having committed the offense to get money to support his habit. He was, at the time, living with his father who was also a drunk.
As a result of this offense, adjudication was withheld and Petitioner was placed on two years probation which he subsequently violated in October 1983 by stealing his step- father’s truck. Again adjudication was withheld, but in February 1984, Petitioner was arrested for grand larceny and dealing in stolen property. Though the grand larceny charge was dropped, he was convicted on dealing in stolen property and was incarcerated. He claims that during this period, he was still on drugs and his offenses related to his habit.
On October 13, October 15, and November 5, 1985,
Petitioner was arrested on a total of 12 counts of burglary and grand larceny and was found guilty of all counts. He was sentenced to four and one half years confinement with a recommendation by the sentencing judge that he be confined in a facility where drug rehabilitation treatment was available.
Petitioner remained in prison until he was released in July 1987. While in prison, Petitioner contends he realized he must change his life and weaned himself from drugs and alcohol, both of which were available in prison. On his release he entered a 12-step program for help with his alcohol and drug problem and is still enrolled. It is a life-time commitment, and he attends meetings two or three times a week. He has been drug and alcohol free since January 1988, when he had two glasses of wine on his wedding anniversary. He has not had any adverse involvement with the law since his discharge from prison, and is currently engaged to be married a second time. He owns a home and has a three-year-old son. He owns animals, fishes for a hobby, and associates only with people who do not drink or take drugs.
When Petitioner was first hired by the DHRS, the predecessor agency to the DJJ, he made a complete disclosure of his criminal record and was cleared for employment by the Department’s screening process. By letter of August 19, 1993, James E. Thomas, the District Screening Coordinator for DHRS’s District Six, advised ACTS Inc., Petitioner’s employer, that the screening background check on Petitioner had been completed and
had found nothing which would disqualify him from working in the ACTS program. The screening was considered to be valid for five years.
Between 1993 and 1998, the Florida Legislature changed the statute to include misconduct of the nature committed by Petitioner among the bases for disqualification. By letter dated April 1, 1998, Priscilla A. Zachary, Background Screening Unit Supervisor for the DJJ, advised Petitioner that he was ineligible for continued employment in a position of special trust because of his prior criminal record. The record relied upon for this determination was identical to that made known to the DHRS when Petitioner was first hired and cleared by that agency. No additional of different misconduct was involved. Petitioner was also advised of his right to request an exemption from disqualification and he did so.
By letter dated April 16, 1998, Jenny Spence, the ACTS program supervisor for the program in which Petitioner was employed, supported Petitioner’s continued employment, pointing out that one of the main concepts under which the organization operates is to support the employment of individuals who have made unfavorable choices in the past, have been rehabilitated, and are now leading productive lives. Petitioner is a prime example of such an individual, and was considered to be of good moral character now. Ms. Stone also pointed out that Petitioner had made full disclosure of his background and had been cleared for employment by the predecessor agency.
On April 21, 1998, a District Screening Committee was appointed to consider Petitioner’s request for exemption. One of the members of the committee was Donald W. Lewis, a senior management analyst II, who has served on numerous exemption committees. As was pointed out in the letter of appointment,
Mr. Lewis indicated the role of the committee is to look at the material presented, to listen to the evidence presented, and to make a determination if there is sufficient evidence to indicate the applicant’s employment should be continued, consistent with the guidelines provided by the Department.
The committee met on April 28, 1998, and heard the Petitioner’s presentation. Petitioner testified in person, describing his offenses, his previous problems and how he had dealt with them, and his rehabilitation efforts. Petitioner also presented testimony from others by telephone and introduced documentary evidence in his behalf. He was completely forthcoming and gave the committee all the information it requested.
The open session of the committee meeting lasted approximately one and a half hours. Petitioner did not ask for additional time nor did he ask to submit additional information. After Petitioner was excused, the committee immediately deliberated in closed session and, after considering all the information which had been presented, concluded unanimously that Petitioner should not be granted the exemption.
The factors on which the committee relied in its decision were, in the main:
the fact that Petitioner’s criminal record was so extensive as to both gravity and repetition. (Even while on probation, and after release from [the first] incarceration, Petitioner committed additional offenses.)
the fact that Petitioner was twice incarcerated.
Petitioner’s violation of probation.
All of the above factors were not the characteristics that were desired in the DJJ programs contracted to ACTS.
Mr. Lewis sees a difference between ADM residents and
DJJ residents. In his opinion, Petitioner should not be in direct supervision of DJJ residents with his criminal background, but could work in other programs with children for other agencies. He is of the opinion that DJJ residents, themselves felony offenders, should have role models who do not have criminal backgrounds.
According to Mr. Lewis, the committee found some degree of rehabilitation in Petitioner, but not enough evidence to show total rehabilitation. Such evidence would include presentations from people to show no likelihood of relapse, notwithstanding the extended period of time which has already elapsed since his last offense without relapse, and Petitioner’s successful and continuing participation in the 12-step program. Mr. Lewis was unable to state what objective information would be enough. He compares Petitioner with other employees who have not been convicted or incarcerated, but admits there are no objective definitions of what would be enough evidence to demonstrate complete rehabilitation. The committee took the position that Petitioner’s moral character has been good recently, but contrasted that with his youthful record. This was enough, it was believed, to give a legitimate concern about his relapsing.
Another concern expressed by Mr. Lewis, but which was not raised by any of the evidence presented, is that Petitioner might have learned conduct while in prison which might make him a danger to children. No evidence to give rise to that suspicion was presented and it is pure speculation.
The Department’s Inspector General, Mr. Perry Turner, pointed out that the number one goal of the Department is to improve the environment so that citizens can have a reduction in fear of crime and a better quality of life as a result of a reduction in juvenile delinquency. In hiring employees, both departmental and contract, the Department applies three priorities. The first is the public safety. The second is cooperation with communities. The third is accountability by offenders and the Department.
Employment screening standards are applicable to both the Department and contractor employees. The screening process is overseen by the Inspector General who sits as action officer on exemption requests after the screening by the exemption committee. In the instant case, Mr. Turner reviewed the Petitioner’s file and the record of the committee, and based on the entire package, decided to deny the request for exemption.
His reasons for doing so rest on Petitioner’s extensive criminal record, the severity of the acts committed, his double incarceration, and his violations of probation along with all the information submitted by Petitioner. The issue is whether Petitioner should be allowed to work with the special needs clients of the DJJ, and whether he could be a good role model for children already involved with the criminal justice system. Considering the criminal justice purpose of the agency, as opposed to its social service purpose, and consistent with the dictates of the enabling statute, Mr. Turner concluded the
exemption should be denied.
Petitioner disagrees with the position taken by Mr. Turner. In his opinion, he would be an appropriate role model for the young people incarcerated in the department’s
facility. His success and rehabilitation would, he claims, show that an individual who was on drugs and alcohol, who gave up those substances, and who applied himself to making a better life for himself, can, with appropriate help, guidance, and assistance, make good.
Ms. Loretta Longworth, an administrative assistant in personnel management for ACTS, is the individual who submitted the screening request for Petitioner. She recalls that when Petitioner was hired in 1993, he disclosed his complete criminal history which was forwarded to the DHRS. That agency approved him without restriction. Since that time, Petitioner has worked successfully for ACTS in a number of different positions, including serving as a direct care worker for children and as a shift supervisor. Based on their experience with Petitioner, ACTS has no reason to believe he is not of good moral character. He has demonstrated no problems, nor has he received any bad reports, and there is no reason to believe he would be a danger to children who would come into contact with him.
Much the same opinion is held by Kenneth Hogue, Petitioner’s long-time supervisor at Bradley Manor, and the individual who hired Petitioner at ACTS more than five years ago. Petitioner made him aware of his criminal background at that
time, and over the several years he has supervised Petitioner, has found his performance to be above satisfactory. In fact, he asked Petitioner to go with him from one facility to another.
Though his experience with Petitioner is purely work- based, Mr. Hogue finds Petitioner to be of good moral character and has no reason to believe Petitioner would pose any danger to children. Mr. Hogue does not believe a criminal record by itself should be disqualifying. The individual is the issue, and Petitioner’s story is a prime example of learning from mistakes and succeeding. Mr. Hogue has no reservations at all about Petitioner working with DJJ residents. Based on his day-to-day observation of Petitioner, he finds Petitioner to be a positive role model for young people. In Hogue’s opinion, it is important to have both reformed malefactors and individuals with clean records working with children in the juvenile justice system.
Lawrence Douglas, a personal friend and prior
co-worker, and himself a recovering alcoholic, works as an addiction counselor at another facility. He found Petitioner to be very good with clients who gave orderly directions and never posed a threat to the clients. According to Mr. Douglas, it is not unusual for recovering substance abusers to work in counseling, and they are usually good at it. Petitioner is, and Hogue does not believe Petitioner, who he finds to be of good moral character, would pose any threat to his clients.
Nadine Griffith, a teacher in Hillsborough County, met Petitioner at a Narcotics Anonymous meeting about 12 years ago
and sees him weekly at their home group sessions. She has observed Petitioner in the company of juveniles in their recovery group, and from those repeated observations does not believe he would be any danger to juveniles. Juveniles seem to like Petitioner and come to him for guidance. He passes his substantial recovery experience on to these juveniles, and this is helpful to their recovery.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Respondent, DJJ, has determined that Petitioner is disqualified from working with children in its program dealing with juvenile offenders because of his conviction of, in this case, felony theft. Section 435.04(2)(r), Florida Statutes, makes any person convicted of a felony ineligible to work with children. However, Section 435.07(3), Florida Statutes, provides for such disqualified individual to request an exemption from disqualification. The person requesting the exemption must provide clear and convincing evidence of rehabilitation to include, but not be limited to:
the circumstances surrounding the criminal incident for which an exemption is being sought;
the time period that has elapsed since the incident;
the nature of the harm caused to any victim;
the history of the person since the incident; and
any other evidence or circumstances indicating that the person will not present a danger if continued employment is allowed.
In the instant case, it is clear that Petitioner’s multiple convictions of felony theft render him disqualified from continued employment with the DJJ or one of its contractors in a job where he comes into contact with juvenile offenders.
Petitioner does not dispute that. However, in his opinion, and apparently in the opinion of his supervisors, his co-workers, and numerous other individuals who are familiar with his record and his efforts at rehabilitation over the years, he has clearly demonstrated substantial rehabilitation and should be granted an exemption from disqualification.
Addressing the several criteria for exemption as listed in the statute, it is clear that Petitioner’s felonies were crimes against property only and did not involve any violence against or personal injury to any other individual. The evidence shows, and Petitioner admits, that at the time the offenses were committed, he had lost his way in a sea of alcohol and substance abuse, the need for which, prompted his actions. There is no evidence to indicate that Petitioner has not conquered his addictions and maintained himself in a clean, alcohol and drug- free state for at least the past ten years.
Petitioner’s last offense was committed in 1985, at least 13 years ago, and there has been no negative involvement with law enforcement since that time. In fact, Petitioner’s record shows clearly that while in prison he underwent a conversion of personality and attitude, coming to God and abandoning the use of alcohol, drugs, and other abusive substances. He has married, has been raising a family, has been productively employed, and, at least in his current position, appears to have been a positive role model for young people facing the critical choice of a life of crime or one of
productivity.
Notwithstanding the evidence submitted by the Petitioner, none of which was questioned, much less rebutted by the Department, the members of the exemption committee, buttressed by other senior department officials, claim that Petitioner has failed to show evidence of his good moral character sufficient to justify permitting him to work with juvenile offenders. It appears to be the Department’s position that because of his record, there is little Petitioner could do to overcome the stigma of his convictions sufficiently to allow him to work with other young juvenile offenders.
Petitioner has never attempted to conceal his record. He made complete disclosure of his criminal record at the time of both his original screening and the re-screening. Petitioner urges, and his contention seems to be well founded, that the best role model for the young people at the time of their crisis of decision, is the individual who has stumbled and fallen, picked himself up, and turned a potential lifetime of failure into one of achievement and accomplishment. In short, Petitioner contends his story is one which gives these potential young criminals a vision of another way and hope that they, too, can turn their lives around and succeed without unalterably turning to crime.
The Department claims that as a criminal justice agency it must set high standards for those personnel it employs to work in its programs. There can be no disagreement with that philosophy. However, it is clearly inappropriate to contend that
no one who has made a mistake can ever compensate for that mistake and turn to a higher road. It is equally inappropriate to contend that one who once abuse drugs and alcohol, but who has been clean for over ten years and remains currently active in a twelve-step program widely recognized as successful in assisting former abusers to remain clean, should be disqualified because, as Respondent argues, “this by no means serves as clear indication or proof positive that he never will become dependent upon them again and resort to criminal activity to sustain his habit.”
This case appears to be a classic one to demonstrate the proper application of the exemption process. Petitioner was clearly disqualified by his prior misconduct, but has turned his life around and has, it is also clear, rehabilitated himself and demonstrated himself to be of good character. No one personally familiar with the Petitioner testified otherwise. He has been rehabilitated and appears to be a positive role model to the juvenile offenders in the Department’s care. If anyone merits an exemption, it is this Petitioner.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a Final Order granting Brian Reed an exemption from disqualification from employment to work in a position of special trust.
Tallahassee, Leon County, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998.
Mary L. Greenwood, Esquire Greenwood & Associates
Law Group, P.A.
Lynne T. Winston, Esquire Department of Juvenile
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.
