The Issue The issue is whether the correctional officer certificate of Melvin J. Simmons should be revoked for lack of good moral character due to having sexual relations with an inmate in the Palm Beach County Jail where Mr. Simmons was employed?
Findings Of Fact Melvin J. Simmons was issued a certificate as a correctional officer by the Criminal Justice Standards and Training Commission on May 30, 1984, certificate 44-84-502-02. In February 1985, Mr. Simmons and Lidia Gonzalez were employed as correctional officers at the Palm Beach County Jail. Both had attended the Police Academy in the same class. In February 1985, Pearline Bartee was incarcerated at the jail. As a trustee, Ms. Bartee was able to move about the jail. Ms. Gonzalez worked in the watchtower at the jail. Simmons approached her to have her arrange a meeting between himself and Bartee in the enclosed stairwell between the first and second floors of the jail. Women inmates were housed on those two floors. Simmons told Gonzalez that he wanted the meeting to engage in sex with Bartee. Simmons asked Gonzalez to warn him through the intercom system in the watchtower and stairwell if a supervisor approached the stairwell while Simmons and Bartee were together there. Simmons had two meetings with Bartee in the stairwell and thanked Gonzalez for looking out for him. On both occasions Simmons had sex with Bartee in the stairwell. Sergeant Michael Tucker of the staff investigation unit of the Palm Beach County Sheriff's Department investigated a rumor that correctional officers had engaged in sex with female inmates. During the course of the investigation, Tucker received information that Simmons may have been involved in misconduct. On April 23, 1987, Sergeant Tucker and a polygraphist, Aaron Saylor, interviewed Simmons about the allegations of sexual misconduct. Simmons initially denied the allegations and grew increasingly nervous during the interview. Due to Simmons' demeanor, Tucker told Simmons that he doubted Simmons' truthfulness and was asked to submit to a polygraph examination. Respondent then admitted that he had engaged in intercourse with Bartee in the stairwell on three occasions in February 1985. Sexual contact between correctional officers and inmates is inconsistent with the employment practice of the Palm Beach County Sheriff's Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That certificate 44-84-502-02 issued to Melvin J. Simmons be REVOKED. DONE AND ORDERED this 21st day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2937 All proposed findings of fact have been adopted except Finding of Fact 9 relating to rumors that inmate Bartee may have become pregnant. In light of the evidence that Ms. Bartee, herself, told correctional officer Gonzalez that Bartee was not pregnant, there is no record basis for such a finding. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Melvin J. Simmons 1412 West 7th Street Riviera Beach Florida 33404 Marzell Mitchell, Jr., Esquire Harvey Building, Suite 413 224 Datura Street West Palm Beach Florida 33401 Rod Caswel1, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Pinellas Vocational Technical Institute is operated by the School Board of Pinellas County, Florida and consists of the Police Academy and the Pinellas Corrections Academy. The Corrections Academy and the Police Academy are housed in separate buildings and offer different curriculum and degree programs, although certain faculty and staff members are shared. Students enrolled at the Police Academy or Corrections Academy are usually employed by a police department. The employer police department serves as the sponsoring agency for the student at the Academy. While employed with the Pinellas County Sheriff's Department, the Petitioner, a black male, was enrolled in Class XI at the Corrections Academy. The Petitioner was removed from his class at the Corrections Academy on December 3, 1984 by Mr. Paul Drolet, the instructor and class coordinator. The Petitioner was subsequently discharged from the Academy by Mr. Mario Vitelli, the Assistant Director. On December 3, 1984, Mr. Drolet called roll in class and discovered that a white female student, Donna Harper, was not in her assigned seat. Mr. Drolet asked Ms. Harper why she was not in her assigned seat. Ms. Harper, who had been sitting next to the Petitioner, stated that she was annoyed by the Petitioner and the things that he was doing. Ms. Harper complained that the Petitioner constantly annoyed and bothered her. Ms. Harper stated that the Petitioner constantly opened and closed his briefcase during class and generally displayed a disinterested attitude. This apparently disturbed Ms. Harper. Ms. Harper also complained that the Petitioner's legs and knees were constantly touching hers because he would spread his legs real wide and have them over on her space. The class had been in session for approximately six days and Ms. Harper complained that the Petitioner's actions had been going on since the beginning of class. After Ms. Harper informed Mr. Drolet of Petitioner's actions, he requested that she give a statement to her sponsoring employer, the Hillsborough County Police Department. After Ms. Harper gave her statement, Mr. Drolet called the Petitioner out of class and asked whether or not the Petitioner wanted to talk about the allegations. The Petitioner stated "I didn't do it, and I have nothing to say". Later, Mr. Drolet informed Petitioner that he was being withdrawn from the class. The Petitioner had been enrolled in the previous class (class IX) at the Corrections Academy. While in class IX, the Petitioner was late to class on several occasions, was found in the Police Academy building (students in the Corrections Academy are not allowed to go into the Police Academy building without permission) and was caught using the non-public telephone at the academy for personal reasons. The Petitioner's major disciplinary problem while in class IX was a complaint made against him by Tia Throckmorton, a white female student. Ms. Throckmorton complained to Larry Wagner, the class coordinator, about a series of events involving the Petitioner. Ms. Throckmorton complained that on one occasion, after the class was shown a .22 caliber gun that a female inmate had attempted to smuggle into a local jail by hiding it in her vaginal area, the Petitioner told Ms. Throckmorton that she could probably hide a .38 caliber gun in her vaginal area. Ms. Throckmorton also complained that during class breaks, the Petitioner would constantly touch her on the shoulders and neck, even after she would pull away to demonstrate that she did not want to be touched. On another occasion at the firing range, the Petitioner stood behind Ms. Throckmorton and squeezed next to her in a "grinding" fashion even though there was plenty of space to pass by. Subsequent to that, the Petitioner attempted to follow Ms. Throckmorton home one day after class. Following this last incident, Ms. Throckmorton decided to complain. The administration of the Corrections Academy, through Mr. Larry Wagner, informed the Pinellas County Sheriff's Department of the complaint by Tia Throckmorton. Upon receiving the information concerning Ms. Throckmorton's complaint, the Sheriff's office withdrew the Petitioner from the Corrections Academy and conducted an internal affairs investigation into the incident. The internal affairs investigation resulted in a finding that there was insufficient evidence to either prove or disprove the allegations of Ms. Throckmorton. Thereafter, the Sheriff's office re-enrolled the Petitioner at the Corrections Academy for the next class. Due to a large number of students entering the Corrections Academy in the next term, the administration decided to operate two separate classes simultaneously, numbered X and XI, with Larry Wagner and Paul Drolet as the respective class coordinators. Due to the prior problems that Petitioner had experienced in Wagner's class, Wagner suggested to Drolet that the Petitioner be placed in class XI, so that Petitioner would feel less stigmatized by his previous withdrawal. Drolet agreed, and the Petitioner was assigned to class XI. While in class XI, and prior to the complaint against Petitioner by Ms. Harper, Mr. Drolet had experienced problems with the Petitioner. On several occasions, the Petitioner fell asleep in class, including a class on unarmed self-defense. On another occasion, the Petitioner wore a utility uniform to class after the students had been specifically instructed to wear their dress uniforms. The Petitioner had also been enrolled in a previous class at the Police Academy. While at the Police Academy, the Petitioner fell asleep on several occasions, and wore an improper uniform on at least two occasions. The Petitioner graduated from the Police Academy on January 3, 1984 with an overall rating of "poor" and the lowest grade average of all students in his graduating class. After Ms. Harper made her complaint against the Petitioner, Mr. Drolet considered the Petitioner's past performance and complaint record at the Pinellas Vocational Technical Institute and recommended to Mr. Vitelli, the Assistant Director, that Petitioner be withdrawn from the academy. Mr. Vitelli instructed Drolet to question the Petitioner about the incident. When Drolet questioned the Petitioner, the Petitioner stated that he didn't do anything and that he had nothing to say. Based on the Petitioner's past record of complaints and discipline problems, and on Petitioner's response to the latest complaint, Mr. Vitelli discharged the Petitioner from the Academy on December 3, 1984. Vitelli explained to Petitioner his right to appeal his dismissal from the Academy to the Director of the Pinellas Vocational Technical Institute, to the Director of Adult Education and to the Superintendent of the School Board of Pinellas County. The Petitioner did not avail himself of any of these direct appeals. The Pinellas County Sheriff's office initiated an internal affairs investigation into the complaint made by Donna Harper, which was scheduled to commence on December 5, 1984. On December 5, 1984, the Petitioner resigned from the Sheriff's office. In classes I through XV at the Corrections Academy, a total of 15 different students were withdrawn for disciplinary reasons, 4 of whom were minorities. During the same period, 56 minority students entered the Corrections Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint and the Petition for Relief filed by Mr. Jeffrey C. Harris. DONE and ORDERED this 27th day of March, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1987. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board of Pinellas County Post Office Box 6374 Clearwater, Florida 33518 Jeffrey C. Harris 2805 West Horatio Street Tampa, Florida 33619 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518-4748 Community Relations Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Pinellas Vocational Technical Institute 6100 154 Avenue, North Clearwater, Florida 33520 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as a recitation of testimony. a. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate and/or misleading. a. Rejected as contrary to the weight of the evidence. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate. Partially adopted in Findings of Fact 5 and 8. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as contrary to the weight of the evidence and/or subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 26 Adopted in Finding of Fact 26. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Facts 10 and 18. Rejected as subordinate. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11 and 12. 18. Adopted in Finding of Fact 4. 19. Adopted in Finding of Fact 13. 20. Adopted in Finding of Fact 14. 21. Adopted in Finding of Fact 15. 22. Adopted in Finding of Fact 16. 23. Adopted in Finding of Fact 17. 24. Adopted in Finding of Fact 18. 25. Rejected as subordinate. 26. Adopted in Finding of Fact 18. 27. Adopted in Finding of Fact 5. 28. Adopted in Finding of Fact 6. 29. Adopted in Finding of Fact 20. 30. Adopted in Finding of Fact 21. 31. Adopted in Finding of Fact 22. 32. Rejected as subordinate. 33. Rejected as subordinate. 34. Adopted in Finding of Fact 24. 35. Adopted in Finding of Fact 24. 36. Adopted in Finding of Fact 25.
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
Conclusions WHEREAS, Respondent appealed her termination to the Pinellas County Sheriff's Civil Service Board (the “Board”); and WHEREAS, the appeal was transmitted to the Department of Administrative Hearings Administrative Law Judge for evidentiary hearing and recommended order; and WHEREAS, the Respondent, Pamela L. Wilson, voluntarily forfeited her right to appeal by letter to the Department of Administrative Hearings Administrative Law Judge dated September 23, 2013; and WHEREAS, Petitioner, Pinellas County Sheriffs Office, filed a Motion to Dismiss; and WHEREAS, in response to that Motion to Dismiss, the Administrative Law Judge issued an order (attached hereto and incorporated by reference) closing its file on the appeal and relinquishing jurisdiction to the Board; and “WHEREAS, Petitioner requested this Board take final agency action to accept the Administrative Law Judge’s disposition of the appeal; and WHEREAS, on October, 9, 2013, the Pinellas Board met at a duly noticed meeting to hear Petitioner’s request and reviewed the Respondent’s September 23, 2013 letter, the Petitioner’s Motion to Dismiss and the Administrative Law Judge’s Order Relinquishing Jurisdiction and voted to dismiss Pamela Wilson’s appeal by a vote of 5 to 0. NOW, THEREFORE, it is ordered and adjudged that: 1. The Board, by a unanimous vote of five (5) members, hereby dismisses the appeal of Pamela Wilson. Page 1 of 2 2. The parties are hereby notified of the right to appeal this Final Order to the Second District Court of Appeal by filing notice of intent to do so upon the Clerk of Court and the Pinellas County Sheriffs Civil Service Board within thirty (30) days of the date of this Order. IT IS SO ORDERED this_//zyw_ day of October, 2013. Lt. Col. Neal A. White, Chairman Pinellas County Sheriff’s Civil Service Board CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Final Order has been furnished by U.S. Regular Mail to: Paul G. Rozelle, Associate General Counsel Ms. Pamela Wilson Pinellas County Sheriff's Office 518 Still Meadows Circle West 10750 Ulmerton Road Palm Harbor, FL 34683 Largo, FL 33778 this | xe day of October, 2013. p Carole Sanzeri Senior Assistant County Attorney 315 Court Street, 6" Floor Clearwater, FL 33756 Phone: 727-464-3354 / Fax: 727-464-4147 Attorney for the Sheriff's Civil Service Board Copy to: Members of the Sheriff’s Civil Service Board Lizzie F. Bogan, Administrative Law Judge HAUSERS\ATYKB03\WPDOCS\CS\SHERIFF CIVIL SERVICE BOARD\APPEALS\WILSON PAMELA\FINAL ORDER.DOCX Page 2 of 2
Findings Of Fact Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984. He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980. The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about 15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent. During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch. At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal. In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class. Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended. Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting. Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal. One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students. Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students. Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
