vs. )
RAY D. JONES, )
Respondent. )
Case No. 12-3635PL
On January 24, 2013, the final administrative hearing in this case was held by video teleconference in Tallahassee and Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Elissa R. Saavedra, Esquire
For Respondent: Ray D. Jones, pro se
The issue in this case is whether the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), should revoke Respondent's correctional officer certificate on charges that he is not of good moral character
because he committed a third degree felony by introducing contraband onto the grounds of the Hillsborough County Correctional Institution (HCI) in violation of
At the final hearing, the Commission called Department of Corrections (DOC) Inspector Mark Talbot and had Exhibits A through H admitted in evidence. Respondent testified in his own behalf. A Transcript was filed on February 6, and the Commission filed a Proposed Recommended Order (PRO) on February 15, 2013.
Respondent, Ray D. Jones, was certified by the Commission on October 7, 2003, and holds Correctional Certificate 235065. He was employed as a DOC correctional
officer from February 26, 2003, until June 22, 2011. Before this matter arose, Respondent had not been disciplined by the Commission.
In early 2010, Respondent was working at HCI and assigned to supervise one of two squads of inmates working outside the prison for the Hillsborough County (County) public works department. On work days, County employees would drive the County vans from a County transportation facility to the prison, drive onto prison property and down the prison's entry road, and
stop at a gate in the prison's perimeter fence. There, the work squads leave HCI by passing through the gate and boarding the vans. Respondent would sit in the passenger seat in the cab of the van assigned to his squad, and the inmates would sit in the back of the van. There was a partition between the cab and the back of the van. When the vans returned to the prison at the end of the work day, the supervisors and inmates would unload outside the gate, and the vans would leave the prison.
On January 4, 2011, an HCI inmate request was submitted that alleged improprieties regarding the work squads. As part of the investigation of those allegations, the County vans were inspected upon arrival at HCI on the morning of January 10, 2011. Numerous hats, some tools, duct tape, toys, food containers, purses, money, glasses, sunglasses, and other similar items were found on both vans. These items were considered to be "nuisance contraband." In addition, some scissors and three folding knives were recovered. One of the folding knives was in a cup holder in the cab of the van assigned to Respondent's squad. The other two were found in an insulated lunch bag in the cab of the van.
Those two knives had blades that were sharp, pointed, and about two and a half to three inches long. The other folding knife was similar. The knives were not authorized by the appropriate prison official for use as tools.
The Commission did not prove by clear and convincing evidence that there was candy on the van when it was inspected. At one point, on cross examination by Respondent, Inspector Talbot testified that there was a lunch box full of candy on the van. However, when Respondent questioned him further on the premise that Respondent carried his lunch with him and that he had not passed through the gate at the time of the inspection, Inspector Talbot stated he did not recall whether "there was actually food in there, maybe one of the other inspectors will recall." No other inspector testified.
Upon questioning, Respondent readily admitted that he knew the knives and other items of contraband were on the van. He explained that the knife in the cup holder was used to cut debris from lawn mower blades. The two knives in the insulated
lunch bag were his personal knives. He explained that he brought them in the bag to the County transportation facility and placed the bag in the cab of the van assigned to his squad, where they stayed. He testified without contradiction that he used his knives to cut up fruit that was part of his lunch. He brought his lunch from home in another lunch bag, which he carried with him when he boarded the van. Respondent denied that any of the knives on his van ever were inside the HCI perimeter fence or that he ever allowed the inmates to have access to the knives.
Although the inmates involved were assigned to a work squad, and the knives on Respondent's van were not readily accessible to them, the knives nonetheless posed a potential risk to the public, Respondent and his fellow work squad supervisor, the County van drivers, and the inmates themselves.
Upon questioning, Respondent admitted giving candy to inmates. He denied sharing his personal food with inmates.
Respondent stated to the inspectors that he did not think the items found during the inspection on January 10, 2011, were a "big deal." Respondent explained that he said this because similar items of nuisance contraband were found on both work squad vans inspected that day and that both vans passed monthly inspections with all the nuisance contraband in open view. Even if the folding knives were not observed in prior inspections, Respondent maintained that the inmates had no access to them and that they never were brought into the prison.
DOC disagreed with Respondent and terminated his employment based on the contraband, Respondent's admissions, and his "no big deal" statement. The Commission also disagreed with Respondent and contends that the contraband, Respondent's admissions, and his attitude are clear and convincing proof of bad moral character.
The Commission alleged and maintained in its PRO that Respondent brought the knives onto the prison grounds every day
he was working as a work squad supervisor between July 1, 2008, and June 22, 2011. However, the evidence was clear that all the contraband items recovered during the inspection on January 10, 2011, including the knives, were removed from the vans at that time, and there was no evidence regarding contraband after that date. It was not clear from the evidence how long prior to the inspection the knives were in the van used by Respondent's work squad. Respondent testified that he brought the insulated lunch bag with his folding knives to the County transportation facility months prior to the inspection. There was no evidence as to how long the other knife was on the van prior to January 10, 2011.
Respondent admits that he was "wrong" to have his knives on the van. He does not believe he introduced the knives into the prison. He also does not think he should lose his certification because they were in the cab of the County van and never inside the perimeter fence.
Respondent testified that the supervisor of the other work squad van still is working as a correctional officer at HCI although there was not only the same kind of nuisance contraband but also a prohibited metal kitchen knife and fork in the back of his van, where it would be accessible to the inmates, when it was inspected on January 10, 2011. The evidence was not clear as to
what discipline that officer received from the Commission, if
any.
CONCLUSIONS OF LAW
A certified correctional officer is required to maintain good moral character. § 943.1395(7), Fla. Stat.
The court in Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), defined "moral character" in the context of a beverage licensing case as follows:
Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.
In Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454 (Fla. 1978), the Florida Supreme Court stated:
In our view, a finding of lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.
By rule, the Commission has defined "failure to maintain good moral character" to include the "perpetration by an officer of an act that would constitute any felony offense,
whether criminally prosecuted or not." Fla. Admin. Code R. 11B-27.0011(4)(a).3/
Section 944.47(1)(a) states that, "[e]xcept through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom
. . . [a]ny article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution" or a "weapon of any kind." A correctional officer's food becomes contraband when it is given or intended to be given to an inmate. See Crim. Just. Stds. &
Training Comm'n v. Howell, Case No. 05-0137 (DOAH May 5, 2005;
CJSTC Aug. 5, 2005). A folding knife is a weapon under
section 944.47(1)(a)5. Staffins v. State, 521 So. 2d 382 (Fla. 1st DCA 1988). Subsection (2) of this statute states that a violation of subsection (1) is a third degree felony.
Since this is a disciplinary action, the Commission has the burden to prove its allegations by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Supreme Court has stated:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must
be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Commission proved by clear and convincing evidence that Respondent violated section 944.47(1)(a)5. whenever his work squad van drove onto the prison grounds with his unauthorized folding knives on board.4/ Introduction of the contraband
onto the grounds of a prison establishes a violation of
section 944.47(1)(a). It was not necessary for the contraband to penetrate the perimeter fence. See Crim. Just. Stds. & Training Comm'n v. Stewart, Case No. 00-3478PL (DOAH Apr. 2, 2001; CJSTC May 8, 2001)(contraband found in officer's car in the prison's parking lot, on the prison's grounds but outside the secured area of the prison); Crim. Just. Stds. & Training Comm'n v. Cummings, Case No. 98-0062 (DOAH Oct. 29, 1998; CJSTC Feb. 10,
1999)(contraband found in officer's residence on the prison's grounds but outside the secured area of the prison).
Although Respondent admitted that he gave candy to inmates, the Commission did not prove that he introduced candy onto the prison grounds. Even if there were clear and convincing evidence that candy was on Respondent's work squad van when it
was driven onto the prison grounds, there was no evidence that any candy found on the van when it was inspected on January 10, 2011, was intended to be given to inmates. For these reasons, the Commission did not prove a violation of section 944.47(1)(a)2.
Respondent's admission that he gave candy to inmates established a violation of section 944.47(1)(b). The Commission's Administrative Complaint did not specifically charge Respondent with a violation of that part of the statute, but the issue was tried by implied consent, and the Commission's PRO argues that Respondent violated that part of the statute.
Florida Administrative Code Rule 11B-27.005(5) sets out disciplinary guidelines for violations of section 943.13(7), Florida Statutes, as follows:
For the perpetration by the officer of an act that would constitute any felony offense, pursuant to paragraph 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:
* * *
Introduction of contraband into a jail or prison involving a firearm, concealed weapon, controlled substance, currency, or a tool or implement useful in an attempt to escape from
custody (843.11, 944.47, 951.22, F.S.)--
Revocation
Other introduction of contraband into a jail or prison (944.47, 951.22, F.S.)-- Suspension to Revocation.
The Commission contends that Respondent's violation requires revocation under rule 11B-27.005(5)(a)6. The rule is ambiguous in that it cites section 944.47 but also states that mandatory revocation is imposed where contraband is introduced "into a jail or prison." However, if the rule only applied to the introduction of a weapon into a jail or prison (i.e., inside the perimeter fence or secured area of the prison), there would be no disciplinary guideline at all for a statutory violation for introduction of a weapon into or upon the grounds of a prison, but not inside the perimeter fence or secured area of the prison. It is more reasonable to interpret the mandatory revocation to apply to any violation of section 944.47(1)(a)5., absent mitigating factors. Cf. Crim. Just. Stds. & Training Comm'n v. Stewart, supra (revocation imposed for contraband on prison grounds but outside the secured area where there were no mitigating factors and several aggravating factors); Crim. Just.
Stds. & Training Comm'n v. Cummings, supra (same).
Rule 11B-27.005(6) provides in part that the Commission shall deviate from the disciplinary guidelines based on the following aggravating and mitigating circumstances:
Aggravating circumstances:
Whether the certified officer used official authority to facilitate the misconduct.
Whether the misconduct was committed while the certified officer was performing other duties.
The number of violations found by the Commission.
The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.
The severity of the misconduct.
The danger to the public.
The actual damage, physical or otherwise, caused by the misconduct.
The lack of deterrent effect of the penalty imposed by the employing agency.
The pecuniary benefit or self-gain to the officer realized by the misconduct.
Whether the misconduct was motivated by unlawful discrimination.
Any behavior constituting "domestic violence" defined by Section 741.28(2), F.S.
Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.
The certified officer has not filed any answer to the Administrative Complaint or otherwise responded to the allegations of misconduct alleged by the Commission.
Mitigating circumstances:
The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.
The recommendations of character or employment references.
The lack of severity of the misconduct.
The length of time the officer has been certified by the Commission.
Any effort of rehabilitation by the certified officer.
The effect of disciplinary or remedial action taken by the employing agency or recommendations of the employing agency administrator.
The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.
Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.
The only aggravating factors that could apply to this case are factors 3 and 6. The only mitigating factor that could apply to this case is factor 5.
Regarding aggravating factor 3, Respondent violated section 944.47(1)(a) (for giving candy to inmates) and (b) (for introducing weapons into or upon prison grounds). It is not clear from the evidence how many violations occurred. The candy violation may have occurred only once. The weapons violation probably occurred several times a week for several months.
Regarding aggravating factor 6, there was some potential danger to the public (actually more so when the vans were off than on prison grounds). However, the actual danger was not great. By virtue of their assignment to a work squad, the inmates were not considered particularly dangerous compared to some others in the prison population; they were supervised by
correctional officers; and the knives in Respondent's van, at least, were in the cab and not readily accessible to the inmates.
Regarding mitigating factor 3, Respondent's misconduct was less severe than other scenarios of criminal conduct for introducing a weapon into or upon the grounds of a prison.
Based on the aggravating and mitigating factors, a departure from the mandatory revocation is warranted. The next most severe penalty for Respondent's violations would be two-year suspension, prospective. See § 943.1397(7)(b), Fla. Stat.; Fla. Admin. Code R. 11B-27.005(4)(b) & (7)(d). In this case, taking all factors into consideration, the maximum suspension is not warranted. Respondent has not been employed by DOC since
June 22, 2011. Although he did not believe he was guilty of violating section 944.47(1)(a), he acknowledged that he was wrong to have the unauthorized folding knives on the work squad van, and it is not likely that he would repeat that violation, or again give candy or other food to inmates, after serving his
suspension.
RECOMMENDED that the Commission enter a final order suspending Respondent's correctional certificate for two years,
giving him consideration for the time he has been unemployed by DOC, and reinstating his certification as of June 22, 2013.
DONE AND ENTERED this 21st day of March, 2013, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2013.
1/ All statutory references are to the current version of the Florida Statutes, the pertinent parts of which also were in effect in January 2010.
2/ Respondent filed an answer to the Commission's PRO. Respondent's filing was considered to the extent relevant to the issues and the evidence presented at the final hearing.
3/ All rule references are to the current version of the Florida Administrative Code, pertinent parts of which also were in effect in January 2011.
4/ The evidence was not clear and convincing as to Respondent's culpability for the knife in the cup holder.
Ray D. Jones (Address of record)
Elissa R. Saavedra, Esquire
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
