STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

GWENDOLYN BYRD, )

)

Respondent. )

Case No. 03-2651

)

RECOMMENDED ORDER

Notice was provided and on September 18, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2003). The manner of conducting the hearing was via video-teleconferencing with the Administrative Law Judge being located in Tallahassee, Florida, and the remaining participants in Daytona Beach, Florida. The case was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

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

For Respondent: Gwendolyn Byrd, pro se

1758 Vanallen Circle

Deltona, Florida 32738

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with her correctional certificate and law enforcement certificate?

PRELIMINARY STATEMENT

On June 20, 2003, by an Administrative Complaint in Case No. 19511, Petitioner accused Respondent with engaging in an unprofessional relationship with Donna Rodriguez, an inmate, for whom she had professional responsibility as a correctional officer.

The nature of the unprofessional relationship alleged in the Administrative Complaint concerns physical contact, kissing. The Administrative Complaint also accuses Respondent with the introduction into or the possession upon the grounds of the Seminole County Jail, a county detention facility, by provision or receipt to or from an inmate in that facility or the attempt at those activities, certain written communication and/or toiletry items and/or food items, declared to be contraband in accordance with Section 951.22(1), Florida Statutes. In addition to reference to violating Section 951.22, Florida Statutes, the Administrative Complaint accuses Respondent of violating Section 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (c), together with reference to Section 943.13(7), Florida Statutes,

which refers to the need to maintain qualifications as a correctional and law enforcement officer in Florida by evidencing good moral character.

Respondent disputed the allegations in the Administrative Complaint concerning facts pertaining to "fraternization" and requested a Section 120.57(1), Florida Statutes, hearing. This election of rights was received by Petitioner on July 14, 2003. On July 16, 2003, the case was forwarded to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing. The case was set for hearing by video-teleconference and was heard on the date described.

Petitioner moved to relinquish jurisdiction in the case based upon the argument that no disputes of material fact existed to be resolved by a final hearing. Section 120.57(1)(i), Florida Statutes (2003). That motion was denied.

At hearing Petitioner called Captain Morton Linnekugel, Donna Rodriguez, Investigator Teresa Maiorana, and Respondent as its witnesses. Petitioner presented Exhibits numbered 2, 3, and

6 which were admitted in their entirety. Petitioner's Exhibit numbered 5 was admitted in those pages which are marked to indicate admission. Petitioner's Exhibit numbered 7 is admitted in those pages designated as admitted. Petitioner's Exhibit numbered 4 was identified but withdrawn. Ruling was reserved on the admission of Petitioner's Exhibit numbered 1.

Having considered the exhibit, it is denied admission. All exhibits described are forwarded with this record. Respondent exercised her right not to offer a defense.

Petitioner requested and official recognition was provided Chapters 120, 943, and 951, Florida Statutes. Official recognition was made of Florida Administrative Code Rule Chapter 11B-27. In requesting recognition specific reference was made to Florida Administrative Code Rules 11B-27.005 and 11B- 27.0011(4)(a) and (c).

Further reference to the provisions of Florida Statutes pertains to Florida Statutes (2002), without including the words "Florida Statutes" unless otherwise stated.

A hearing transcript was filed on October 6, 2003.

Petitioner filed a proposed recommended order which has been considered in preparing the recommended order. Respondent did not avail herself of the opportunity to submit a proposed recommended order or similar document.

FINDINGS OF FACT

1. In consideration of the election of rights form, in which Respondent limited dispute of allegations of facts in the Administrative Complaint to those accusations of "fraternization" between Respondent and a female inmate Donna Rodriguez (Rodriguez), it is assumed that Respondent agrees that she holds a correctional certificate and a law enforcement

   certificate issued by Petitioner. Further support for the finding in relation to the correctional certificate, is based upon the fact that Respondent served as a correctional officer in the John E. Pope Correctional Facility, Seminole County, Florida, as contemplated by the Administrative Complaint.

2. During the period in question Rodriguez was an inmate in the Seminole County Correctional Facility. Rodriguez was an inmate participating in the RRAP Program related to drug rehabilitation. Rodriguez entered that program in May 2002, and was a participant at all times relevant to the Administrative Complaint. Respondent was responsible for Rodriguez as a correctional officer at the facility. While serving as a correctional officer Respondent engaged in inappropriate conduct with Rodriguez, conduct outside Respondent's professional duties.

3. Respondent brought V05 shampoo and conditioner into the facility where Rodriguez was incarcerated. Respondent transferred the substances from their original containers into unlabeled bottles which were the property of Rodriguez. Respondent then took the V05 bottles from the cell where the transfer was made. Respondent in her testimony at hearing acknowledged that this provision of hair care products to Rodriguez was unauthorized. In a statement provided to Investigator Teresa Maiorana of the Seminole County Sheriff's

   Office, Respondent acknowledged that the provision of the V05 products constituted the introduction of contraband into the Seminole County Correctional Facility.

4. In a telephone conversation between Respondent and Rodriguez, Respondent had asked Rodriguez what kind of hair conditioner Rodriguez liked. The answer was V05. This led to the provision of the shampoo and conditioner. The telephone call was among many telephone calls made from Rodriguez to Respondent while Respondent was at home.

5. While Rodriguez was incarcerated she placed numerous telephone calls to Respondent at her home, totaling approximately 7 to 8 hours in duration. Respondent was charged for the calls made to her home. To make matters worse, in a telephone conversation with Rodriguez, Respondent agreed with the inmate to deny that the telephone calls had taken place. Respondent had provided her home telephone number to Rodriguez to facilitate the calls.

6. The telephone calls between Rodriguez and Respondent were part of an on-going relationship that had a romantic overture. The nature of romantic overture was described by Respondent in a statement given on December 6, 2002, to Investigator Teresa Maiorana as "an emotional attachment." That relationship lasted approximately two months.

7. The relationship between Respondent and Rodriguez involved physical contact. Five to ten times while Rodriguez was incarcerated there were hugs and kisses, some on the lips. While out of the facility on the way to church or returning from church there was a hug and a kiss on the cheek. Respondent recognizes this conduct as inappropriate given her position as a correctional officer.

8. Respondent gave Rodriguez a "mood ring."

   
   

9. Without a request from Rodriguez, Respondent obtained socks and t-shirts from other inmates in the correctional facility and provided them to Rodriguez.

10. Respondent also provided Rodriguez M&Ms candy that Respondent had paid for from a vending machine in the correctional facility commissary.

11. Respondent and Rodriguez prepared and passed written correspondence between themselves in the correctional facility. Examples of the correspondence which Respondent gave to Rodriguez in the facility are found within Petitioner's Exhibit numbered 5 admitted into evidence. Petitioner's Exhibit numbered 7 admitted into evidence is constituted of correspondence prepared by Rodriguez to give Respondent that was not delivered. Petitioner's Exhibit numbered 5 in its terms expresses a level of affection directed from Respondent to Rodriguez. Petitioner's Exhibit numbered 7, although

    undelivered, constitutes expression of affection from Rodriguez to Respondent.

12. Respondent acknowledges receiving 30 or more letters from Rodriguez. The letters Respondent gave to Rodriguez were written while Respondent was at work in the correctional facility or were purchased outside the facility and brought in and given to Rodriguez.

13. The correspondence provided from Respondent to Rodriguez in the correctional facility was not through authorized official channels.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2003).

15. By this action Petitioner seeks to discipline Respondent in her capacity both as a certified correctional officer and a certified law enforcement officer. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's certificates. The nature of that proof must be by clear and convincing evidence. Ferris v. Turlington,

    510 So. 2d 292 (Fla 1987); and Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and

    Company, 670 So. 2d 932 (Fla. 1996).

    
    

16. Although reference is made to Section 943.1395(6) in the Administrative Complaint, that law involves crimes related to perjury or false statement, false affidavits or dishonorable discharge from the armed forces of the United States. Those provisions are unassociated with the factual allegations in the Administrative Complaint. Therefore no violation has been established concerning Section 943.1395(6).

17. Alternatively, Respondent is accused of violating Section 943.1395(7), which allows the imposition of discipline:

    Upon a finding of the Commission that a certified officer has not maintained good moral character, the definition of which had been adopted by a rule and is established as a statewide standard, as required by s.

    943.13(7) . . .

    
    

18. Section 943.13(7) refers to the need for an officer to "have a good moral character as determined by a background investigation under procedures established by the commission."

19. Further, the Administrative Complaint refers to violations of Florida Administrative Code Rule 11B-27.0011(4)(a) and (c), defining moral character wherein it is stated:

    For the purposes of the Criminal Justice Standards and Training Commission's implementation of the penalties specified in

    Section 943.1395 . . . (7) F.S., a certified officers' failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

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

       
       

       * * *

       
       

       (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

       
       

       * * *

       
       

       1. Having an unprofessional relationship with an inmate, detainee, An

          unprofessional relationship is defined as:

          
          

          1. Having written or oral communication with an inmate or detainee, probationer or parolee, or community controllee that is intended to facilitate conduct prohibited by this rule section; or

             
             

          2. Engaging in physical contact not required in the performance of official duties, and is defined as kissing, and

       any other physical contact normally associated with the demonstration of affection . . .

       
       

20. The Administrative Complaint in association with the felony offense refers to Section 951.22, which states:

    1. It is unlawful, except through regular channels as duly authorized by the sheriff or officer in charge, to introduce into or possess upon the grounds of any county detention facility as defined in s. 951.23 or to give to or receive from any inmate of any such facility wherever said inmate is located at the time or to take or to attempt

       to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: Any written or recorded communication; . . . any article of food or clothing; . . .

       
       

    2. Whoever violates subsection (1) shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

21. Clear and convincing evidence has been presented to prove that Respondent committed acts that would constitute a felony pursuant to Section 951.22, in relation to the correspondence, the M&Ms and the socks and t-shirts. Florida Administrative Code Rule 11B-27.0011(4)(a). The introduction and possession of the material into and within the detention facility was in association with a relationship between Respondent and Rodriguez not through regular channels. This constitutes proof of the failure to maintain good moral character.

22. Additionally, further evidence of the failure to maintain good moral character by Respondent has been clearly and convincingly proven concerning the correspondence and the physical contact which Respondent had with Rodriguez through kissing and hugging. Florida Administrative Code Rule 11B- 27.0011(4)(c).

23. Section 943.1395(7)(a) through (e) describes the imposition of penalties for violation of Section 943.1395(7).

24. Florida Administrative Code Rule 11B-27.005, contains guidelines for the imposition of penalties for the violations found. For the violation pertaining to the failure to maintain good moral character in association with the facts that demonstrate that Respondent acted in contravention of Section 951.22, the recommended punishment is revocation of the respective certificates held by Respondent. Florida Administrative Code Rule 11B-27.0011(4)(a). A similar recommendation for punishment is made under the disciplinary guidelines when considering the unprofessional relationship between Respondent and Rodriguez. Florida Administrative Code Rule 11B-27.0011(4)(c).

RECOMMENDATION

Upon consideration of the facts found and Conclusions of Law reached, it is

RECOMMENDED:

That a Final Order be entered which revokes both Respondent's certificate as a correctional officer and as a law enforcement officer.

DONE AND ENTERED this 14th day of November, 2003, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 14th day of November, 2003.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Gwendolyn Byrd

1758 Vanallen Circle

Deltona, Florida 32738

Rod Caswell, Program Director Criminal Justice Standards and

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

Michael Ramage, General Counsel 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: 03-002651PL

Orders for Case No: 03-002651PL