STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. )

)

RETHA L. JACKSON, )

)

Respondent. )

Case No. 01-2024PL

)

RECOMMENDED ORDER

A formal hearing was heard in this case on August 28, 2001, in Panama City, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Philip W. Lindley, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303-1489

For Respondent: Retha L. Jackson, pro se

1909-A Mack Lewis Drive Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issues are whether Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer have good moral character, and if not, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 9, 2000, Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner), issued an Administrative Complaint against Respondent Retha L. Jackson (Respondent). Said complaint alleged that Respondent had violated the provisions of Sections 838.016, 943.1395(6) and/or 943.1395(7), Florida Statutes, and Rule

11B-27.0011(4)(a), Florida Administrative Code, in that Respondent had failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer have good moral character.

Respondent filed an Election of Rights form on or about June 30, 2000, requesting a formal administrative hearing to contest the allegations contained in the Administrative Complaint. Petitioner referred the case to the Division of Administrative Hearings on May 23, 2001.

On May 24, 2001, the Division of Administrative Hearings issued an Initial Order. Petitioner filed a Response to Initial Order on June 6, 2001.

On June 8, 2001, Administrative Law Judge, Charles C. Adams issued a Notice of Hearing and Order of Pre-hearing Instructions. The Notice of Hearing scheduled the formal hearing for August 14, 2001.

On July 9, 2001, Petitioner filed a Motion to Continue.

Judge Adams issued an Order Granting Continuance and

Re-scheduling Hearing on August 8, 2001. This order rescheduled the hearing for August 28, 2001.

During the hearing, Petitioner presented the testimony of two witnesses and offered seven exhibits that were admitted into evidence. Respondent testified on her own behalf but offered no exhibits for admission into evidence.

The Transcript of the proceeding was filed on September 5, 2001. Therefore, proposed recommended orders were due to be filed on or before September 17, 2001.

Petitioner filed a Proposed Recommended Order on September 10, 2001. As of the date of this Recommended Order, Respondent has not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Criminal Justice Standards and Training Commission (CJSTC) certified Respondent as a correctional officer on September 24, 1995. The CJSTC issued Respondent Correctional Certificate No. 159769.

2. Gulf Correctional Institution (GCI) employed Respondent as a correctional officer on August 18, 1995. GCI terminated Respondent's employment on September 2, 1997.

3. Respondent's maiden name is "Manley." Cheryl Manley and Cynthia Manley are Respondent's sisters.

4. At all times material here, Petitioner lived at 1909-A Mack Lewis Drive, Panama City, Florida.

5. At all times material here, Alan Belsky was an inmate at Gulf Correctional Institution. Inmate Belsky was acquainted with Respondent as a correctional officer but did not know her sisters.

6. In late June 1997 or early July 1997, Respondent agreed to sell Inmate Belsky some marijuana. Respondent made this agreement while she was on duty as a correctional officer at GCI. She directed Inmate Belsky to have the money for the marijuana sent to Cheryl Manley using a Western Union Money Transfer with the proceeds in the amount of $50 to be picked up at a Winn Dixie store in Panama City, Florida.

7. Subsequently, Inmate Belsky requested his grandmother, Ester Belsky from Halendale, Florida, to send $50 to Cheryl Manley as directed. Inmate Belsky told his grandmother that the money would cover his gambling debts.

8. Using a Western Union Money Transfer, Ms. Belsky sent the money to Cheryl Manley on July 13, 1997. Thereafter, Respondent personally delivered a quarter gram of marijuana to Inmate Belsky.

9. Respondent agreed to sell Inmate Belsky some marijuana a second time. She directed Inmate Belsky to send $100 to Cynthia Manley at 1909-A Mack Lewis Drive, Panama City, Florida.

10. Inmate Belsky again told his grandmother that he needed money to pay gambling debts. Inmate Belsky asked his grandmother to send $100 to Cynthia Manley at 1909-A Mack Lewis Drive, Panama City, Florida.

11. Ms. Belsky sent Cynthia Manley a personal check dated August 1, 1997, in the amount of $100. Respondent admits that she endorsed the check under the signature of Cynthia Manley. Respondent's testimony that she only endorsed the check because her sister did not have a checking account at the bank is not credible.

12. After receiving the check for $100, Respondent used another inmate as a go-between to deliver the marijuana to Inmate Belsky. Sometime thereafter, GCI gave Inmate Belsky a urine test for controlled substances. Inmate Belsky tested positive for marijuana use.

13. The money that Ms. Belsky sent to Respondent's sisters was compensation for Respondent's delivery of marijuana to Inmate Belsky on two occasions. Therefore, Respondent received unlawful compensation while acting in her official capacity as a public servant.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

15. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. The Administrative Complaint charges Respondent with violating Section 838.016, Florida Statutes, which states as follows in pertinent part:

    1. It is unlawful for . . . a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, non- performance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

       
       

       * * *

       
       

       (4) Whoever violates the provisions of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

17. Respondent accepted unlawful compensation when she sold Inmate Belsky marijuana on two occasions. Section 944.47, Florida Statutes, prohibits anyone from introducing contraband in the form of a controlled substance into a correctional

    institution. Pursuant to Sections 893.02(3), 893.01(4), and 893.03(1)(c)7., Florida Statutes, cannabis, otherwise known as marijuana, is a controlled substance.1 Additionally, Section 893.13, Florida Statutes, prohibits the sale of a controlled substance except as authorized by law. Therefore, clear and convincing evidence indicates that Respondent is guilty of violating Section 838.016, Florida Statutes.

18. The Administrative Complaint charges Respondent with violating the provisions of Section 943.1395(6), Florida Statutes, which requires Petitioner to "revoke the certification of any officer who is not in compliance with the provisions of

    1. 943.13(4)." Section 943.13(4), Florida Statutes, prohibits the employment of any correctional officer who "pleads guilty, or nolo contendere to or is found guilty of any felony." These provisions do not apply in this case because Respondent never plead guilty or nolo contendere and was never found guilty a crime, felony or misdemeanor, relative to the allegations at issue here. The State Attorney of the Fourteenth Judicial Circuit declined to prosecute a criminal charge against Respondent for unlawful compensation because Ms. Belsky, the state's key witness, was elderly, lived in South Florida, and would have required special travel arrangements in order to testify at trial.

19. The Administrative Complaint charges Respondent with failing to maintain good moral character as required by Section 943.13, Florida Statutes, which states as follows in relevant part:

    [A]ny person employed or appointed as a . . . correctional officer shall:

    
    

    * * *

    
    

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

    
    

20. Correctional officers fail to maintain good moral character if they commit an "act that would constitute any felony offense whether criminally prosecuted or not." Rule 11B-27.0011(4)(a), Florida Administrative Code.

21. There is clear and convincing evidence that Respondent has failed to maintain good moral character. She accepted unlawful compensation in the performance of her public duty contrary to Section 838.016(1), Florida Statutes. She has committed an act which, pursuant to Section 838.016(4), Florida Statutes, constitutes a felony even though she was never convicted of a crime.

22. The Administrative Complaint invokes the provisions of Section 943.1395(7), Florida Statutes, which states as follows in part:

    (7) 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

    1. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       1. Revocation of certification.

       2. Suspension of certification for a period not to exceed 2 years.

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       5. Issuance of a reprimand.

    
    

23. Rule 11B-27.005, Florida Administrative Code, states as follows in relevant part:

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

       1. For the perpetration by the officer of an act that would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that shall be imposed absent mitigating circumstances, include the following:

          Recommended

          Violation Penalty Range

          
          

          * * *

          
          

          4. Possession, sale of Revocation controlled substance

          (893.13, F.S.)

          
          

          *	*	*
          6.	Introduction of contraband into a jail prison (944.47 and 951.22, F.S.)	Revocation
          *	*	*

          
          

    2. The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission, if pursuant to Section 120.57(2), F.S., or to an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one (1) or more of the following:

    (a) Aggravating circumstances:

    1. Whether the certified officer used official authority to facilitate the misconduct.

    2. Whether the misconduct was committed while the certified officer was performing other duties.

    3. The number of violations found by the Commission.

    
    

    * * *

    
    

    5. The severity of the misconduct.

    * * *

    
    

    9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

    
    

24. In this case, Respondent used her position as a correctional officer to facilitate her misconduct during the performance of her duties. She committed a serious infraction on two occasions. Most importantly, Respondent committed the misconduct in order to realize a pecuniary benefit. There is no evidence of mitigating circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That CJSTC enter a final order revoking Respondent's certification.

DONE AND ENTERED this 21st day of September, 2001, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2001.

ENDNOTE

1/ Criminal courts have routinely recognized marijuana as a common name for cannabis. Hamilton, Jr., v. State, 366 So. 2d 8 (Fla. 1979); Marshall v. State, 381 So. 2d 276 (Fla. 5th DCA 1980); M. Nelson, II v. State, 319 So. 2d 154 (Fla. 2nd DCA 1975).

COPIES FURNISHED:

Retha L. Jackson

1909-A Mack Lewis Drive Panama City, Florida 32401

Phillip W. Lindley, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice

Professionalism Services

Florida 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: 01-002024PL

Orders for Case No: 01-002024PL