The Issue In separate cases arising out of the same incidents, the Florida Commission on Ethics found probable cause that Respondent Rice violated Section 112.3143(3), F.S. by voting in her official capacity on a measure which inured to her special private gain; that she violated Section 112.313(6), F.S. by having a memorandum of voting conflict falsified; and that Respondent Thomas violated Section 112.313(6), F.S. by falsifying a memorandum of voting conflict. The issue, therefore, is whether those violations did occur, and if so, what penalty is appropriate.
Findings Of Fact The incorporated municipality of Bunnell is a small community in Flagler County Florida. Opal Rice was a Bunnell City Commissioner for eight consecutive years ending in March 1992. Becky Thomas has been Bunnell City Clerk for "six years come June 1993". She is appointed annually by a majority vote of the City Commission. Earl Rice, as "everyone in Bunnell knows", is Opal Rice's husband. Back in 1989 he owned six or eight contiguous residential lots in Bunnell. Since everything around them except the back was business, he felt they would be a "good place for a little business" and he applied to the city for rezoning. He felt the property value would be enhanced and wanted the flexibility of developing the lots either as residential or business. The rezoning issue came before the commission for first reading on March 21, 1989. Mrs. Rice and three other commissioners voted for its approval, and one commissioner dissented, stating he felt the change was spot zoning. The issue came up for second reading at the April 4, 1989 commission meeting. City Attorney Taylor was asked if the amendment to the zoning ordinance would be spot zoning, and he opined that it would not. There was also some discussion about whether Mrs. Rice should sign a conflict of interest form. She said she did not think she had a conflict because the property was not in her name and she would not get a benefit. The City Clerk said she should file the form and Mrs. Rice agreed, just to be safe. Mrs. Rice then participated in the vote and the rezoning was approved 4-1. Sometime in 1991, a citizen came to the clerk's office and asked to see some records, including those related to the rezoning. Becky Thomas was on the phone and asked her to come back to pick them up later. When Ms. Thomas pulled the records she realized that the voting conflict forms had not been filed. In more recent months, Becky Thomas has become aware that the completion and filing of voting conflict forms is not her responsibility as Clerk, but rather is the responsibility of the individual commissioners. But in 1991, she was chagrined at her oversight on Mrs. Rice's forms and immediately filled them out. Ms. Thomas then called Mrs. Rice and asked her to come sign them. The two forms, styled "Form 8B Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers", are comprised of two pages, including instructions. Becky Thomas prepared the forms to cover the two occasions described above, the first and second readings. Next to the signature line is a line, "Date Filed". On that line Becky Thomas typed the dates the votes were taken: March 21, 1989 and April 4, 1989, thinking that those were the relevant dates. Opal Rice signed each form on the space next to the dates. Mrs. Rice is a retired school teacher. She and her husband receive separate retirement checks. They pay their expenses from a joint account. Mrs. Rice believed that she was required to vote. During other meetings, she recalled, she heard other commissioners being told they had to vote and to file a notice of voting conflict later. She, herself, had previously filed voting conflict forms. She was not certain when the forms were supposed to be filed, but acknowledged that the filing should be rather soon after the vote. At hearing, Mrs. Rice was not particularly familiar with the details on the forms she signed, and she admitted that she did not read the instructions. Nor did she discuss the forms with Ms. Thomas. Although the dates next to her signature were not the dates she signed, she simply thought they were the dates the votes were taken. The printed forms bear the date, 1-91; and the forms in use in 1989 are not in evidence. The printed instructions include a plain prohibition against elected officers voting on measures which inure to their special private gain. The instructions also require that a conflict must be disclosed and abstension explained prior to the vote being taken, and again after the vote by filing the form within fifteen days. Clifford Allen Taylor has been Bunnell's City Attorney, part time, for seven years. He was present for the second reading, but not the first. He has some recollection of the discussion of Commissioner Rice's possible conflict but he did not participate in the discussion. The law, as he understood it back then, was that the commissioner was required to vote and make a disclosure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by either Opal Rice or Becky Thomas; finding violations of Section 112.3143, F.S. by Opal Rice when she voted on rezoning her husband's property and neglected to file memoranda of the conflict within fifteen days; and recommending that a civil penalty be assessed in the amount of $100.00. DONE AND RECOMMENDED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Craig Willis, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Opal Rice Post Office Box 696 Bunnell, Florida 32110 Becky Thomas Post Office Box 756 Bunnell, Florida 32110 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact The parties to this proceeding were afforded due and proper notice according to law of the final hearing. Petitioner was granted a Mandatory Conditional Release (hereinafter MCR) from a Florida state prison on October 31, 1975. He would have been Supervised in the same manner as a person released on parole until the expiration of his sentence on March 7, 1978. On October 8, 1976, the Petitioner received a directed verdict of acquittal from the Honorable Judge Allen R. Schwartz in Case No. 76-6250, State of Florida v. Walter Thomas, in the Eleventh Judicial Circuit Court in and for Dade County, wherein the Petitioner was charged with the crime of sexual battery against a female in violation of Section 794.011, Florida Statutes. The Respondent Subsequently charged Petitioner with the violation of Condition 8 of his MCR Certificate " . . . by failing to live and remain at liberty without violating the law, in that on or about July 6, 1976, in Dade County, Florida, [he] did unlawfully participate in the involuntarily sexual battery of . . ." a named female. Pursuant to Petitioner's request, Respondent held what it terms a "majority" final revocation hearing on February 4, 1977, with Commissioners Maurice G. Crockett, Ray E. Howard, Annabelle P. Mitchell and Charles J. Scriven present. The Respondent revoked Petitioner's MCR in an Order dated February 10, 1977, signed by Commissioners Roy W. Russell, Ray E. Howard, Maurice G. Crockett and Armond R. Cross. On April 7, 1977, the Commission issued an Amended Order correcting a clerical omission in its original order. Although Respondent had the discretion to grant credit for the time Petitioner spent on MCR no such credit was granted. On July 1, 1977, Petitioner was again released on her to remain thereon until the expiration of his sentence. Since he had not received credit for the time previously spent on NCR his current sentence expiration date has been extended from March 7, 1978 to "November 11, 1978. Section 947.23(1), Florida Statutes, states that: "As soon as Practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission [Respondent] in person . . . and a hearing shall be had in which the state and the parolee may introduce such evidence as they may deem necessary and Pertinent to the charge of parole violation." The same section further provides that after the foregoing hearing the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether the charges have been sustained and by that order shall revoke the parole or reinstate the original order of parole or enter such other order as the Commission may deem proper. The evidence in this case establishes that the Respondent has an established procedure and practice by which it implements the foregoing statutory requirement. Rule 23-16.09(3), F.A.C., entitled "Hearings; Revocation of Parole" sets forth, in part, this Procedure and Practice. It does not, however, set forth the complete procedure and Practice. It provides that a parolee can elect to appear either before a majority of the Commission or one Commissioner. Rule 23-16.09(3), F.A.C. Apparently following that Provision Respondent conducts two types of final parole revocation hearings. The great majority of these are referred to as "single member hearings" wherein the alleged violator agrees to have a single member of the Respondent Commission conduct the final hearing. The remainder are referred to as "majority member hearings" where a hearing panel of four members of the Commission conduct the final hearing. The manner in which the foregoing types of hearings are conducted by Respondent and a final order entered pursuant thereto has, by the Practice of the agency, become quite formalized and definite but has not been codified in the Florida Administrative Code. The procedure and practice of Respondent in the conduct of single member parole revocation hearings is well established and inflexible. The single member hearings are held every Friday with one member of the Commission present and conducting the hearing. The Commissioner receives the waiver of the alleged violator to a majority hearing and resolves the question of the alleged violator's right to counsel. The charges are then read, witnesses sworn and permitted to testify, evidence taken and the alleged violator permitted to admit or deny the charges and to testify. The single Commissioner takes notes and fills out a brief one page form which in part contains his recommendation and eight lines for the alleged violator's Statement, mitigating circumstances and witness statements. This form along with all evidence presented at the hearing is placed in the alleged violator's file which is then returned to Tallahassee, Florida, for further action. As soon as possible upon arriving in Tallahassee, usually within the next five (5) working days, the case is placed on the voting panel docket. The Commission maintains a duty roster which requires four members of the Commission to meet in the regularly scheduled voting panel meeting, normally held on Thursday of each week, to review those cases docketed for that panel. This duty roster for the voting panel is compiled without regard to which Commissioner conducted the hearings which are to come before the voting panel. Each Commissioner on the voting panel has had access and opportunity to review individually all information, evidence, recommendations and other matters in the file on the alleged violator and to review the record of the hearing. The evidence, however, establishes that it is rare indeed for any of the members of the voting panel to have read the record of the hearing on which they vote. The evidence further establishes that the Commission has no requirement that those members of the voting panel who did not hear the case read the record. Although a tape recording or court reporter's notes are made of the parole revocation hearing they are seldom transcribed and almost never read by the Commissioners sitting on the voting panel. Usually, the Commissioner who conducted the single member hearing is present at the meeting of the voting panel which is to consider that case. It is further the practice of the agency for that Commissioner who held the hearing to then tell the voting panel the facts as he knew them in addition to the information on the form referred to above. The alleged violator nor his counsel is allowed to appear at the voting panel's meetings. In practice, the members of the voting panel do not read the record of the hearing below nor do they read the entire file made available for their perusal. That file may contain matters not presented in evidence at the parole revocation hearing. After consideration of the file and record as they see fit and having heard the remarks of the Commissioner who conducted the hearing, and engaged in such discussion as they deem appropriate, the voting panel votes on the disposition of the case before it. It is the position of Respondent in considering parole revocations that Section 947.06, Florida Statutes, requires four (4) Commissioners voting together to restore or revoke the alleged violator's mandatory conditional release or to discharge the matter. Therefore, should a split vote occur at the voting panel meeting the Commissioner who held the hearing must then attempt to seek a majority vote from other members of the Commission on whether to restore, revoke or discharge. A typical situation would find four of the seven Commissioners sitting on the voting panel, a fifth Commissioner having conducted the single member hearing, and two remaining Commissioners, who were neither at the parole revocation hearing nor the meeting of the voting panel. If the voting panel is not unanimous in its disposition of the hearing these remaining Commissioners are then lobbied by the Commissioner who held the hearing and perhaps some or all of the Commissioners who sat on the voting panel, to cast their vote in order that there may be four votes together on whether to revoke restore, or discharge. These two members are not required by the practice of the Respondent to read the record of the parole revocation hearing or review the file of Respondent on the alleged violator and, in fact, do not generally read the full record or review the entire file. A majority member parole revocation final hearing is the same as a single member final hearing with the exceptions noted below. Instead of a single member of the Commission being present and conducting the hearing, four members of the Commission are detailed to hold the majority hearings which are held on the first Friday of each month. The four sit and listen to the testimony and evidence, taking notes and filling out a face sheet similar to that form used in a single member hearing. Immediately following the hearing the four members discuss the case and frequently a tentative vote is taken and recorded informally on the face sheet which is then included in the file and returned with the record of the hearing to Tallahassee. Cases which have been heard by four members of the Commission are placed on a voting panel docket just as are cases heard by a single member of the Commission. The voting panel members are rarely, if ever, the same four members of the Commission who attended and held the final revocation hearings, although some members of the voting panel will have sat on the hearing panel. As in a single member hearing coming before the voting panel, the panel discusses and reviews each case on the docket with the file readily available to each member of the Commission at the voting panel meeting. However, just as in the case of the single member hearing reviewed by the voting panel, the members of the voting panel are not required to read the record of the final hearing or fully review the file made available to them on the alleged violator and generally have not done so. Following a review and discussion of the docketed cases a vote is taken by the voting panel. The Respondent takes the position that, pursuant to Section 947.06, Florida Statutes, there must be four votes in agreement to restore, revoke or discharge. Should a split vote occur in the voting panel the remaining three Commissioners are approached by members of the voting panel and their vote recorded to revoke, restore or discharge. This vote is not generally done at a regularly scheduled meeting of any sort and these Commissioners are not required to and generally have not read the record nor fully reviewed the file in the matter. Once four members of the Commission are in agreement to revoke, restore, or discharge, the staff is directed to prepare a final order which order informs the violator of the charges alleged, the decision of the Commission, a brief summary of the evidence relied upon and the effective date of said action. The order further contains the signatures of the members of the Commission who took the action. It is the announced practice of Respondent that when the Commissioners consider and determine whether the alleged violator is guilty of the charges they do not consider information outside the record of the final revocation hearing, although the agency file, which is generally not introduced at the hearing, is available to the Commissioners. However, it is also the announced practice of the Respondent that after determination by the Commission that the alleged violator is guilty of the charges, but before the entry of any final order, the Commissioners will consider matters outside the record of the final revocation hearing. The Respondent does not give the alleged violator or his counsel notice of this evidence or an opportunity to respond to it. This evidence is considered by the Commission after a determination of guilt for the purpose of deciding whether to restore MCR even though the violator was guilty of the charges, to simply revoke, or to grant credit for time on MCR even though it is revoked. The testimony of the Commissioners appearing in this proceeding establish that those Commissioners voting on these revocation matters who were not present at the final hearing get to know the facts presented at the hearing Primarily by word of mouth from the Commissioner or Commissioners who were present at the final hearing. It further establishes that the Commissioners who vote on these revocation matters and who were not present at the final hearing do not generally, though in some cases they may, review all of the evidence presented at the final revocation hearing. Respondent Presently brings revocation charges against a conditional releasee who has been tried for a criminal offense while on conditional release. Further, even though the conditional releasee is found innocent by reason of a directed verdict of acquittal, or a jury verdict of not guilty, or a verdict of not guilty in a non-jury trial, Respondent charges and may revoke said conditional release on the same or similar facts and matters raised at the criminal proceeding if Respondent finds that the terms and conditions of the releasee's MCR were violated. Petitioner has attempted to prove that it is the rule of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. The evidence presented establishes that, although there may be genuine disagreement on whether a certain final order affecting substantial interests contain proper findings of fact and conclusions of law, nevertheless, it is the policy of the agency to include such findings and conclusions in its final orders. Respondent argues that it has formally promulgated as rules Chapters 23-16 and 23-17, Florida Administrative Code, which chapters establish the practices and procedures utilized by Respondent in the granting and revocation of conditional releases. Further, Respondent points out that Rule 23-16.09, Florida Administrative Code, entitled "Hearings; Revocation of Parole" is the formally promulgated rule dealing with parole revocation hearings. The evidence establishes that the practices and procedure set forth in paragraphs 3, 4, 5, 7 and 8 above are not formally codified by the Respondent and have not been promulgated in accordance with Chapter 120, Florida Statutes. The evidence further establishes that these practiced and procedures apply, without exception, to all final parole revocation hearings and are the practices and procedures used by the Respondent to implement its statutory responsibilities under Chapter 947, Florida Statutes, and specifically Section 947.23, Florida Statutes. These practices and procedures have been in effect for several years and, although not formally codified, the Commissioners, by their testimony and responses to discovery, have stated these practices and procedures to be those of the agency applicable to all final revocation hearings.
Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, 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 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, 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
Findings Of Fact Petitioners Gary M. Piccirillo ("Piccirillo"), Douglas L. Adams ("Adams"), and George Crain ("Crain") each are inmates who are presently incarcerated and within the custody of Respondent, Department of Corrections. At the time of final hearing in this cause, each of the Petitioners was incarcerated in Union Correctional Institution, Raiford, Florida. At the time of final hearing in this cause, both Petitioner Adams and Petitioner Crain had been classified as "close custody" in accordance with the provisions of Rule 33-6.09(4), Florida Administrative Code. Petitioner Piccirillo had been classified as "medium custody" in accordance with that same rule. The custody status of each of these inmates had been reviewed and established within the last six months prior to final hearing. In addition to challenging the validity of Rule 33-9.07(4), Florida Administrative Code, Petitioners also challenge the validity of Department of Corrections' Policy and Procedure Directive No. 4.07.40 issued April 27, 1977, and revised March 10, 1982, as an unpromulgated rule. Specifically, Petitioners contend that Section IXB conflicts with certain provisions of Section 945.091, Florida Statutes, and is, therefore, invalid. Specifically the Policy and Procedure Directive in the above referenced section provides that: The department will permit considera- tion for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or [sic]. . . .
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: Petitioners Piccirillo and Adams have PPRD's established under the Objective Parole Guidelines Act to be September 30, 1986 and November 11, 1991 respectively. Respondent has not conducted effective parole release date interviews for Petitioners Piccirillo and Adams or otherwise reviewed their PPRD's for the purpose of establishing their effective parole release dates. Petitioners Piccirillo and Adams are entitled to receive effective parole release date interviews in the future prior to the time their presumptive parole release dates arrive. Additional findings of fact are as follows: The three Petitioners were all inmates at Union Correctional Institution, Raiford, Florida in the custody of the Department of Corrections at the time of final hearing. Petitioner Fasenmyer's established PPRD of April 19, 1982 was extended by Respondent by 60 months pursuant to statutory authority contained in Section 947.18, Florida Statutes, by an order entered May 10, 1982. This action was taken at an effective parole release review of Petitioner Fasenmyer's case and followed his effective parole release date interview. Respondent's order rendered May 10, 1982 recited the Commission's reasons for refusing to authorize Petitioner Fasenmyer's EPRD and for extending his PPRD 60 months to April 13, 1987. Petitioner Fasenmyer sought appellate review of the commission's order in the First District Court of Appeal and that court, on its own accord, relinquished temporary jurisdiction to the commission to conduct another review of his case for purposes of adequately explaining the reasons for denial of appellant's parole and to report its findings, pursuant to such review, to the court. On remand, the full commission entered an order on July 5, 1983 pursuant to procedures identical to and now incorporated in the challenged rules refusing to authorize Petitioner Fasenmyer's EPPD, reinstating his PPRD of April 19, 1982, and scheduling him for further consideration in December, 1983.
