Findings Of Fact Douglas L. Adams is an inmate at Union Correctional Institution. On August 26, 1985, he was awakened early in the morning and brought before a disciplinary hearing for an alleged violation of institutional rules and regulations. Prior to the hearing, he was advised by a correctional officer to pack up all his personal property and to bring it with him to the hearing. Mr. Adams took with him as much as he could which included his clothing and other personal effects, but he was unable to carry all he owned with him at one time. He did not ask for either help in carrying his property or a cart to carry it in prior to leaving his cell area to go to the hearing. When he arrived at the movement center where the hearing was to be held, he advised the authorities there that he did not have all his property with him. At that point, he asked for help or the use of a cart to go get the rest of his property but he was refused because no cart was there. As a result, he went to the hearing leaving some of his property in his cell area and while in the hearing, contends he was required to leave his property in the control center. This property was secured in a storage room behind the control center which, while not locked, was not available for access to other inmates unless they were accompanied by a corrections officer. When the hearing was over and Mr. Adams, who had been directed to administrative confinement requested to go back to his former cell area to get the rest of his property, his request was refused. His property was inventoried by UCI personnel at that time, but because in his opinion the inventory was not complete, Mr. Adams refused to sign the form. When he was released from administrative confinement he claims he did not get all his property back. He relates that he was told he had forfeited whatever property he had not brought to the hearing. As a result, he filed a complaint on September 16, 1985, which was subsequently denied. Petitioner has been incarcerated in 7 or 8 institutions within the Department of Corrections including Florida State Prison, River Junction Correctional Institution, Baker Correctional Institution, Polk Correctional Institution, Old Unit, the Reception and Medical Center, and DeSoto Correctional Institution. At each one of these institutions a rule similar to this one was in existence. At Baker Correctional Institution, the inmate was required to bring his mattress as well. Robert Craig has been in prison for a total of 27 years and has been incarcerated in almost every major penal institution in the State of Florida that was built prior to the last five years. At Avon Park Correctional Institution he underwent a disciplinary hearing and was told at the time to bring all his personal property with him to the hearing. While in the hearing, he was required to leave all his property outside in the hall. At Cross City Correctional Institution the guards took him to the hearing without his property, bringing his property along afterwards. In essence, at all the institutions where he was incarcerated, there was some variation of the same procedure regarding his personal property. He either had to bring it to the hearing or it was packed up prior to the hearing. At no institution was his property inventoried prior to the hearing. As a result, he has lost personal property including a calculator for which he was subsequently reimbursed by the institution. According to Mr. Craig, if the inmate does not bring his personal property with him he either is given a deficiency report or is precluded from going back to get it when the hearing is over. Sgt. Denmark has worked for approximately 8 1/2 years with the Department of Corrections, all at UCI, where he formerly worked at the movement center. One of the functions he performed there was to handle prisoners coming for a disciplinary hearing. The rule as explained to him regarding the inmates' personal property is that the inmate is required to bring all of it with him to the hearing. Once the property is brought with the inmate to the hearing, the inmate is free to either take it into the hearing with him or to leave it in the storage room in back of the movement center during the hearing. If the inmate is sentenced to disciplinary confinement as a result of the hearing, in that case, and at that point, the inmate's property is inventoried. If the inmate is not sentenced to disciplinary confinement, the property is returned to the prisoner who is returned to his area. In the instant case, Mr. Denmark heard the Petitioner tell Sgt. Howe, when he arrived at the movement center, that he had left some of his property in his cell. However, when Adams went into his hearing, he neither took his property with him nor requested that it be secured. According to Mr. Cunningham, the Chief Classification Supervisor, the Union Correctional Institution Policy, (85-52.9 B1) requires inmates to bring all their property to disciplinary hearings. It is an old policy, and the reason for it is to protect the property from theft. In a disciplinary hearing, there is a chance that an inmate might not get back to his old cell to retrieve his property after the hearing. For security reasons, institution officials prefer not to take a prisoner back to his old cell after a hearing because, at that point, he is often angry as a result of the hearing and disruptive. All Department of Corrections' institutions in the region incorporating UCI, except Florida State Prison, have a similar policy. Inquiry of corrections personnel at the agency headquarters in Tallahassee reveals that most major DOC facilities have a similar policy. There are a total of 33 other facilities which hold less than 100 inmates each. These smaller institutions do not, generally, have a similar policy and Florida State Prison has a different situation because of the different security problems. It is the needs of the institution, however, which determine the use of the policy. Mr. Cunnningham is aware of Mr. Adams' hearing and the complaint filed as a result thereof. Upon inquiry it was determined that Mr. Adams had failed to establish a loss and the complaint was denied. Mr. Cunningham does not know whether there was an investigation into the loss of the property left in the cell. It is Mr. Cunningham's understanding that if the witness cannot carry all his property at one time, normally, if the inmate asks for permission to do so, he will be allowed to go back and get the balance before the hearing. This is not in the procedure approved by DOC, however, nor in the IOP at UCI. Corrections Officer Howe is also aware of the fact that Mr. Adams had a hearing on August 26, 1985. He, in fact, was called to the movement center to escort several prisoners, including Adams, to the confinement barracks after the hearings. A part of this duty involves inventorying the prisoners property. Howe told Adams to get his property and bring it in for inventory. At this point, after the hearing Adams said he did not have all his property with him and asked to be taken back to his old cell to get the rest. Howe declined to do this and explained the security reasons for his decision to Adams. He did advise Adams, however, that he would call down to Adams' old cell area and have his property packed which, in fact, he did. It is standard practice at UCI, according to Howe, that if an inmate has a large amount of property, he can request the use of a cart or wheelbarrow which is assigned to each housing area for carrying this excess property. This cart will be returned by a runner who can also help carry the excess. To his knowledge, inmates are not denied the use of these carts. Howe declined to return Adams to his old cell area after the hearing because, at the time, Adams was belligerent and unstable and presented a security risk in his opinion and also, because Adams had previously been advised to bring all his property with him and had failed to do this even though there was a way for him to accomplish it.
Findings Of Fact Petitioner, Donald Eugene Halpin, has been an inmate at DeSoto Correctional Institution since February, 1991. He is serving a sentence to life in prison. Sometime in March, 1991 he received a letter from a female friend through the prison mail system. Enclosed with the letter were several photographs of this female friend who was in the nude. They were of the sender only and did not show either her sexual organs or any sexual activity. She had sent him similar photos while he was confined at Marion Correctional Institute and he has received others over the past 16 years he has been incarcerated in one or another institution within the Department system. At all other institutions where he has been held, he was permitted to retain these or similar photographs. At DeSoto he was not. The photographs were never given to the Petitioner by the DeSoto officials but were returned to the sender. This action was justified to him by Institution officials on the basis that other inmates could get into his locker where the photos would be kept and this could result in difficulty or disagreement between or among the inmates. The denial was justified on the language contained on the back of the institutions mail form which reads: Mail containing obscene items, language, or references made in a suggestive manner (which would not be acceptable from a moral standpoint) shall not be permitted. Mail received which does not comply with regulations shall be returned to the sender. The Department's rule in issue has been in effect for a considerable time and has system-wide application. The current Assistant Superintendent at DeSoto, Mr. Cornell, uses it at the facility about 4 -5 times a month. It is justified under the rationale that nude photographs of an inmate's family member are dangerous to have. Inmate living areas are not air-conditioned and when temperatures are high, tempers often flare. Even though most inmates claim there is no animosity among them, such feelings exist, especially if the subject of this type of photograph comes to visit. In prison especially, lewd or derogatory comments about an inmate's family are not well tolerated and may result in an altercation. Mr. Cornell can remember one case in which it did, and he feels this constitutes a risk to the security of the institution. DeSoto's assault rate is lower than that of other close security installations because, he believes, of this rule and how it is applied. Magazines containing photographs of a similar nature are allowed as a part of the approved reading for inmates in Department facilities. Such magazines as Oui, Penthouse, Playboy, and Playgirl Magazine are contained on the approved periodical list attached to and made of part of the Department's Policy and Procedure Directive 4.10.50 dealing with admissible reading material, issued on May 10, 1979 and revised on May 25, 1982. These magazines are justified on the basis that the photo subjects are not known to or related to inmates, and the photographs may not be cut out of the magazines and posted in inmate living areas. Consequently, it is felt, these magazines pose no threat. The pictures allowed to inmates do not have to be of individuals on the inmate's visiting list. The test of whether a photo will be approved is not the subject of the photo but the nature of the pose. When mail for inmates is received at the institution, it is reviewed by several people in the chain of command overseeing the particular inmate. A Corrections Officer I is the mail room person who first opens the inmate mail. It is then screened by a Sergeant and a Lieutenant as well as the Major in charge of each of the institution's major units. Another inmate, Henry Ross, received nude photos of family members and girlfriends which were confiscated. When he filed a grievance, the pictures were returned to him but he was advised he would not be allowed any more. Mr. Cornell indicated he was not aware of those photos but, having viewed them at the hearing, would have denied them entrance if he had. Parenthetically, the day of this hearing, after Ross had testified on behalf of Petitioner and had shown his photos to the Hearing Officer, he was called in and advised a ruling had been made that his photos were not proper and he was required to get rid of them. He has also, however, received other photos of this type over the nine years he has been incarcerated and has been allowed to keep them. He has also had access to the magazines described above. Inmate Jackson, who has been at prisons in the Department system for more than 14 years, has not received any nude photos from outside but personally knows of inmates who have while at other institutions. In all his years of incarceration, he has no knowledge of any violence among inmates as a result of nude photos even though lockers have been broken into. Jackson claims that neither he nor Ross would ever engage in violence as a result of a derogatory remark regarding any pictures they might have nor would they take such action if their lockers were broken into. The inmates see DeSoto's implementation of the rule as arbitrary and unjustified. In this case, when Halpin's pictures were returned without being given to him, he first filed an informal grievance which was denied. He then filed a formal grievance which was also denied, and an appeal of that denial to the Department Secretary who denied it as well.
The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
The Issue Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================
The Issue The issue in this case is whether Respondent, Department of Corrections (“DOC” or the “Department”), engaged in discriminatory practices against Petitioner, Patrick Quercioli, on the basis of his disability; and, if so, what relief should be granted.
Findings Of Fact Petitioner is a 53-year-old Caucasian male. From approximately November 19, 2004, until August 4, 2016, Petitioner was employed by the Department as a Correctional Officer. He was promoted to the rank of Correctional Officer Sergeant on July 28, 2006. At all times relevant hereto, Petitioner was working at the Annex section of the Lowell Correctional Institution (“Lowell”) located in Marion County. Lowell is a maximum security prison for female inmates; it has an average daily count of approximately 2,800 prisoners. The Department is an agency of the State of Florida, created pursuant to section 20.315, Florida Statutes, and is responsible for, inter alia, hiring and monitoring all employees engaged in operations at a state prison. Petitioner was separated from his employment with DOC due to the fact that he could not “perform the essential functions of his job.” That determination was based on a report from Petitioner’s therapist, Mrs. Robinson, and her opinion that Petitioner could not effectively perform his duties in the presence of inmates. Inasmuch as all Correctional Officer Sergeant positions require contact with inmates, DOC terminated Petitioner’s employment. The facts leading to the ultimate termination of Petitioner’s employment are anything other than ordinary. A discussion of those facts follows. In October 2014, a female inmate at Lowell was found dead in her cell. Petitioner was named as a suspect in the death, despite the fact that at the time of death he was on vacation with his family, i.e., he was not working at the prison. Local and national news outlets began reporting about the death, and Petitioner was named numerous times as a suspect and possible participant. Apparently, Petitioner’s name had been provided to the inmate’s family prior to her death as someone who had been harassing her. Nonetheless, Petitioner’s character and reputation were impugned by the news stories. Petitioner was placed on administrative leave pending further review by the Department. Meanwhile, the Florida Department of Law Enforcement (“FDLE”) commenced its own extensive investigation into the death of the inmate. The investigation focused quite heavily on Petitioner and one other correctional officer, but FDLE ultimately concluded that there was no evidence to prove either of the men had taken part in the inmate’s death. The inmate’s death, in fact, was ruled to be from natural causes.1/ The FDLE investigation was concluded on January 21, 2015. The Department did not issue a particular statement concerning Petitioner’s vindication, nor did it publish a notice about the FDLE findings. Petitioner takes great umbrage at this perceived failure by DOC, but cited to no requirement that the Department do so. The Department acknowledges that it did not make any effort to make public the findings of the FDLE investigation. During the FDLE investigation and while Petitioner’s alleged involvement in the incident was being broadcast by the news services, Petitioner began receiving threats against his life and the lives of his family members. Who made such threats or why such threats may have been made was not made clear at final hearing. Whether it was family and friends of the inmate, concerned citizens who perceived Petitioner as some kind of monster, or someone else making the threats, Petitioner was concerned for his safety. He was especially worried for his daughter, who had been living part-time with Petitioner on a split schedule with his ex-wife. When the news stories began to appear, the ex-wife refused to allow the daughter to visit with Petitioner. While he wanted to see his child, Petitioner knew that it was better for her to stay away from him until the situation improved. As a result of the publicity, the threats, and the stress on him and his family, Petitioner developed PTSD. The Department approved Petitioner for participation in EAP on March 6, 2015. EAP paid for counseling sessions with Petitioner’s chosen therapist, Mrs. Robinson. Petitioner had about 12 sessions with Mrs. Robinson while he was covered by EAP. After his EAP coverage expired, Petitioner met with Mrs. Robinson for two more sessions paid for as part of his FMLA leave. Mrs. Robinson identified Petitioner’s condition at the beginning of their sessions as quite extreme. He suffered from nightmares, crippling fear, paranoia, and unwillingness to leave his home. He had dark circles under his eyes and was obviously distraught. Mrs. Robinson began to work with Petitioner to help him view his fears and concerns differently. She taught him to utilize mindfulness meditation techniques. He was shown how to perform activities of daily life without being reminded of the trauma he had experienced. The number of sessions he spent with Mrs. Robinson was not sufficient for her to fully address his needs, however. She was able to diagnose his PTSD and began treatment for that condition, but their relationship ended before she could do much for him. By the time her treatment of Petitioner was concluded, they were working toward Petitioner’s acceptance of some inmates in his workplace, as long as they were not “general population inmates.” Ms. Robinson reiterated that Petitioner should not work within the prison compound, i.e., within the perimeter, at this time. She believed that with further assistance, Petitioner may one day be able to do so. By letter dated March 13, 2015, Mrs. Robinson notified the Department that, concerning Petitioner, “It is recommended that he does not return to work until further notice due to the hostility he has faced from the public, his co-workers and other inmates that he would be responsible for which could trigger further de-compensation and contribute to greater emotional disturbance. Mr. Quercioli is open to learning positive coping skills for improved feelings management as well as the treatments necessary for recovering from PTSD.” For about three months, the Department attempted to determine whether Petitioner would be able to return to work as a Correctional Officer Sergeant. On June 9, 2015, DOC notified Petitioner that his FMLA leave had been exhausted and he needed to talk to his supervisor, Major Patterson, about when he could come back to work. Mr. Patterson contacted Petitioner and basically said he would need to come back to work at the Lowell Annex, i.e., return to his old job. Meanwhile, the Department, by letter dated June 16, 2015, asked Mrs. Robinson for her opinion regarding whether Petitioner could work as a Correctional Officer Sergeant. The parties to this matter characterize the tone of that letter quite differently. It is therefore quoted here in its entirety for the purpose of objectivity: Dear Mrs. Robinson: The above employee [Petitioner] is a Correctional Office Sergeant with the Florida Department of Corrections at Lowell Correctional Institution. Your opinion regarding Mr. Quercioli’s medical status while working in a potentially dangerous environment will assist management in their decision to retain Mr. Quercioli in his current position. In order for us to determine whether or not Mr. Quercioli can safely perform his duties as a Correctional Officer Sergeant, we request that you complete this questionnaire as to his ability to perform the duties and responsibilities of a Correctional Officer Sergeant to full capacity. Please bear in mind that Correctional Officer Sergeants must be able to work split, rotating or fixed shifts, weekends, holidays and overtime possibly without notice as required. Overtime may include double shifts and working on off duty days. In order to assist you in making this determination, I am enclosing a position description and a list of essential functions for the Correctional Officer Sergeant position held by Mr. Quercioli. Also, please bear in mind that Mr. Quercioli’s job does require that he be able to possess a firearm. Furthermore, he could at any time be placed in a situation where the use of physical force, including deadly force may be necessary, to control violent inmates or prevent imminent threat to life. We ask that you provide information regarding how Mr. Quercioli can treat and control his condition in a correctional environment. In addition, we need to know what precautionary measures are required to ensure his physical condition is not exacerbated when he is involved in a highly dangerous situation with inmates or volatile situations with supervisors and/or co-workers. In rendering your opinion, if you determine Mr. Quercioli can perform some duties but not others, please specify which duties cannot be performed and the reason why. Additionally, if there is anything that can be done to allow him to perform these duties, please provide this information. In the letter making this request, the Department included a job description and a brief questionnaire to be filled out by the therapist. The questionnaire asked, “After reviewing the position description of Correctional Officer Sergeant, can Mr. Quercioli perform the duties of a Correctional Officer Sergeant with no restrictions?” The questionnaire went on to ask for any reasons that the question was answered in the negative. Mrs. Robinson replied that “No,” Petitioner could not perform the duties without restrictions. She went on to say that, “With 100% supervision of inmates as his primary duties and his constellation of PTSD symptoms, Mr. Quercioli would be at risk of decompensation. A job with no inmate contact may be possible in the future.” Mrs. Robinson had previously, in response to a Medical Certification request from FCHR, listed a few alternative jobs that Petitioner may be able to do, including: “administration away from inmates; staff security away from general population inmates; key keeper or arsenal maintenance away from general population inmates.” The evidence is unclear as to whether the Department was aware of her suggestions regarding those potential jobs for Petitioner. At final hearing, Ms. Robison reiterated her concern about Petitioner being asked to work in an area where general population inmates might be present. Her testimony, in part, was as follows: Q: “[W]ould he have been able to perform the required functions of his employment position based on what you read in his personnel description, the essential functions of his position, had the department considered or approved any request for accommodations Mr. Quercioli made on the department? A: The current job description, position description for a sergeant as a correctional officer, he couldn’t do that job. Q: Could he do others? A: He could do other jobs and we were working towards limited, you know, his acceptance and, you know, with the cognitive behavioral therapy helps you think different about things and he was opening up to the idea that yes, there will be inmates around but they’re at a lower level of risk, and so he was open to that and for trying to work in a different position. * * * Q: So, earlier or a few moments ago when you said he couldn’t perform under [sic] the position of a correctional sergeant, that’s not a hundred percent accurate, correct? A: Right, that was the job description, that is what he was doing in general population, supervising inmates. He can’t supervise inmates and that has a hundred percent by it, supervision of male or female inmates. That what he -- the part of his job that he couldn’t do. Q: Uh-huh, but with an accommodation, he could do that? A: Yes. In another job, other than supervising his primary one hundred percent duties of supervising male or female inmates. Tr., pp. 48-50. Exactly what duties Petitioner could perform without difficulty is unclear. It is certain he could not supervise inmates 100 percent of the time. Whether he could work around inmates in an environment separated from the prison compound is not certain. Whether he could respond to an emergency situation inside the compound is extremely doubtful.2/ Petitioner’s attorney submitted a letter to DOC dated June 26, 2015. The letter requested accommodations that might make it possible for Petitioner to perform one or more jobs at Lowell. The letter suggested part-time or modified work schedules, job restructuring, and other possibilities. The letter also stated, in part, “Instead of requiring Sergeant Quercioli to once again re-live the nightmares arising from his previous duty in the Lowell Annex, the Department could instead assign him to a less stressful desk job.” DOC responded that a less stressful desk job is not a feasible accommodation because a person in that position would not be able to perform the essential duties of a Correctional Officer Sergeant. The attorney responded to the Department that his previous request for an accommodation was not meant to be limited to a “desk job” only; he meant to include any reasonable accommodations. Though the two conversants used different terminology, it is obvious they were both addressing alternative jobs that did not require Petitioner to work within the prison compound, whether that meant literally sitting at a desk or not. Petitioner intimated, but did not conclusively prove, that there were certain jobs in the administration offices, i.e., outside the compound, that he might be capable of filling. No evidence was presented concerning the exact nature of those jobs, the responsibilities attached thereto, or Petitioner’s qualifications to fill them. Following the exchange of letters between DOC and Petitioner (through his attorney), the Department notified Petitioner via letter dated July 9, 2015, that a “personnel action” was being contemplated by DOC which could result in his dismissal from employment. The basis for a personnel action was that Petitioner’s therapist said he was “currently unable to perform the duties of . . . a Correctional Officer Sergeant.” Petitioner was given the opportunity to attend a pre- determination conference with DOC personnel to provide oral or written statements in regards to the personnel action. A conference was held on July 23, 2015. The Department was represented by Warden Gordon and Colonel Edith Pride. A teamster representative, Michael Riley, accompanied Petitioner to the conference. Petitioner’s attorney, Mr. Bisbee, attended the conference via telephone. Petitioner did not bring his therapist, Ms. Robinson, to the meeting because “it never crossed my mind” that she should attend. At the conference, Petitioner reiterated his desire to return to work, but stated he would rather not interact with inmates, even though he believed he might be able do so. His belief was inconsistent with his therapist’s determination and contrary to his attorney’s representations. It is unclear whether DOC could have assigned Petitioner to a position that did not involve some contact with inmates. There were a few jobs mentioned that take place in the prison’s administration building, outside the perimeter. Some of the “trustee” type inmates working within the administration building may have been much less threatening to Petitioner than general population inmates. But because every Correctional Officer Sergeant is deemed to be on call to attend to disturbances within the prison compound, regardless of their job or workplace, Petitioner could be subject to having close contact with the general population inmates. Petitioner identified one specific job in administration that he thought he might be able to handle despite some inmate contact. That job, in the area of training, was filled by another Correctional Officer Sergeant. Petitioner did not ever formally apply for the job. Subsequent to the predetermination conference, the Department issued a letter to Petitioner advising him that “You will be dismissed from your position as a Correctional Officer Sergeant effective August 4, 2015.” The letter gave Petitioner the right to grieve the action or to appeal it to the Public Employees Relations Commission. Petitioner did not avail himself of either of those options. Instead, he filed a claim with FCHR, resulting ultimately in the present action. DOC based its decision to terminate Petitioner’s employment on the fact that his own therapist had opined that he could not perform the essential functions of a Correctional Officer Sergeant. That is because persons in that position–-no matter what duties they were performing--must be able at a moment’s notice to react personally to any emergency situation that may arise within the inmate population. A correctional officer working in the motor pool, for example, may have to drop what he is doing, pick up a firearm, and rush into the compound to quell a disturbance. A sergeant who is performing training for other officers may have to cease her training and immediately report to duty inside the compound to respond to inmate unrest. There is no job under the Correctional Officer Sergeant umbrella that is immune from contact with inmates at any given time. There was, in short, no reasonable accommodation the Department could offer Petitioner. Two pertinent quotes from the record explain concisely the basis of the Department’s position in this case: As a general rule, we don’t “accommodate” correctional officers because the accommodations requested generally include exemption from the essential functions. We provide alternate duty for those officers who are temporarily unable to perform the duties of their position because of a work related injury. However, while on alternate duty, they do not wear a uniform, nor do they perform the duties of a [Correctional Officer]. * * * Quercioli’s therapist, Beth Robinson, stated he was not able to perform the duties of his position, although a job with no inmate contact may be possible in the future. There are no correctional officer positions, regardless of rank, whose essential functions do not include dealing with inmates. Exhibit 4 to Petitioner Exhibit 1, email from Patricia Linn, human resources analyst. It is not unusual for employees to request so-called “accommodations” from DOC relating to their duties as correctional officers. Such requests may include exceptions to the dress code, a need for ergonomic chairs, leave extensions, parking space changes, alternate work schedules, and the like. Each request is reviewed on its own merits and some are granted, some are denied. In fact, Petitioner alluded to the fact that after the inmate death incident, he had been reassigned to alternate duties not having to do with inmate monitoring. His duties were related to assisting applicants for jobs at Lowell to fill out their applications. Petitioner intimated that he did not enjoy that position. Petitioner asserts that DOC made no effort to contact him to discuss possible accommodations. He did not cite to any existing policy or rule which would require the Department to do so, however. Further, Petitioner admitted that he did not attempt to initiate such conversations with the Department, either. Since losing his job at Lowell, Petitioner has been unable to obtain gainful employment. Of the scores of internet applications for employment (and one in-person interview), not a single position came to fruition. As a result, Petitioner cashed out his state retirement plan, using the money to pay bills and provide for his daughter’s needs. Petitioner presented no evidence in this case that persons with disabilities were treated any differently by the Department when they requested accommodations.
Recommendation RECOMMENDED that a final order be issued by the Florida Commission on Human Relations, determining that the Department of Corrections had legitimate cause for the dismissal of employment of Petitioner, Patrick Quercioli, and that there is no evidence of discrimination. DONE AND ENTERED this 16th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2017.
Findings Of Fact At all times relevant to the issues herein, Respondent was licensed by the Florida Division of Real Estate under license number 0202980. On January 16, 1986, Respondent, represented by counsel, entered a plea of guilty before the Honorable Alcee L. Hastings, Judge of the United States District Court for the Southern District of Florida, to a charge of being involved in a scheme to defraud to obtain money by false pretenses by U.S. Mail, in violation of 18 U.S.C. 1341 & 1342, and conspiracy to defraud to obtain money by false pretenses in violation of 18 U.S.C. 371. Respondent was found guilty as per his plea and was sentenced, inter alia, to imprisonment in a United States Penitentiary for 4 years on the first count and for 1 year on the second, the terms to run consecutively. Respondent surrendered to authorities at the Federal Prison Camp, Leavenworth, Kansas, on May 5, 1986, and is presently incarcerated there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law is is, therefore: RECOMMENDED that the Respondent's license as a real estate salesman in Florida be revoked. RECOMMENDED this 17th day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of October, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 William J. Hogan 25392-004 B-2 Post Office Box 1000 L.V.C. Leavenworth, Kansas 66048 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL 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 17th day of June 1994.
Findings Of Fact Petitioners, Joseph Redman, Stanley Blanding, and Douglas Laverne Adams are inmates at UCI. Blanding lives in the southwest unit housing and three times a day is required to walk from that facility to the central mess facility. He is not issued thermal underwear or a raincoat even though he works outside a great deal of the time. Issuance of those items is discretionary with the inmates' supervisor who has consistently refused to draw and issue these items. Blanding contends that during the past winter, he became so cold working outside in the rain and cold, he caught a cold for which he was treated only with aspirin. Because of the situation, he refused to work without additional clothing and was, because of his actions, placed in confinement. Blanding also contends that thermal underwear and rain gear is issued in a discriminatory fashion. He states that the people who work in the laundry get raincoats and thermal underwear, yet he travels the same distance in the outside and does not receive it. His quarters are inadequately heated and in many instances the windows are broken out. Inmates tried to put up cardboard to keep out the cold on occasion and even tried to close the inner doors to preserve what warmth they could. They were; allegedly, told they could not do this. He has repeatedly tried to convince his supervisor to issue the thermal and rain gear on an equitable basis but has been unsuccessful. Nobody in his shift who works outside has received this clothing even though his supervisor has repeatedly promised to get it for them. His letters and a personal visit to Mr. Connors, the laundry manager and clothing supply officer, to explain that he and his co-workers worked outside without adequate protection met with no success. Blanding is an outside laborer whose duties entail any manual labor that has to be accomplished outside. DOC has a rule which provides that when the temperature falls below 40 degrees Fahrenheit, including the chill factor, outside work is terminated. In practice, however, Blanding works 8 to 9 hour shifts which include outside work regardless of the 40 degree rule if the supervisor so directs. He admits, however, that during the cold weather this past winter, he worked outside only approximately 30 percent of the time. Even so, when he went to the doctor and requested a letter to authorize thermal underwear, he says he was advised that such a request was outside the doctor's authority. Joseph Redman lives in the west unit at UCI and is required to participate in outside activities as exercise for his back condition. However, on those days when the weather is inordinately cold or rainy, he has to cancel this beneficial exercise because of the lack of either thermal or rain clothing. If he desires to eat, it is necessary for him to make a 400 yard round trip to the dining facility several times a day. Respondent's rule does not take into consideration an individual's physical condition or how far he has to go to eat. Even if he does not work outside, it is still necessary for him to spend extended periods of time outside in cold or inclement weather. Redman says that the doctor agrees that this clothing is appropriate but denies that he has the authority to request its issue. Petitioner Adams' job requires him to travel around to the various compounds and to attend various call- outs approximately 120 yards from his quarters. Cold weather can often keep him inside, however, he is required to go outside to eat each meal. In practice, even though they do not have raincoats, in rainy weather the inmates are prohibited from standing under available shelter but must remain in line in the rain even if suffering from a bold or other illness in order to eat. Inmates also are not allowed to provide any type of protection for themselves such as a towel or other headcovering unless it Is issued and in most cases, it is not. Adams contends his dormitory is one in which the heating system is inadequate for cold weather. He wrote to the inspector for DOC and talked to the Assistant Superintendent who, in all fairness, tried to correct the problem but could not. When Adams asked for thermal underwear to be used as pajamas, his request was denied because he does not work outside and therefore fall within the category of individual to who this clothing is normally issued. Though not a Petitioner here, inmate Tommie Greene has been at UCI for approximately four weeks and has not had any cold weather experience at that facility. However, for the year prior to coming to UCI, he was an inmate at the Florida State Prison, adjoining UCI. In that facility, some cells were adequately warm and some were not. This situation was the same at Baker Correctional Institution where he was also incarcerated for a time. Depending on the floor level the heat may or may not be adequate. No thermal underwear was issued and it was several hundred yards from his living area to the dining facility. In order to eat, inmates had to line up outside the dining facility without raincoats. If it was raining and one wished to eat, one stood out in the rain. This same procedure, according to Greene, applies to UCI where the distance from his housing to the dining facility is more than 100 yards. If it is cold, he must be in it if it rains, he must also be in it, and the only way to avoid getting wet is not to eat. There are approximately 90 people in his area who eat at the same time and they go from the cell area to the dining facility in line with an officer leading. The standard clothing issue provided to inmates at UCI is outlined in UCI Operating Procedure No. 85-02, revised in March, 1985. This procedure calls for each inmate to be issued: 1 blue jacket 3 blue shirts 3 pairs blue trousers 1 web belt 1 pair boxer shorts 1 pair socks pair high top shoes In addition, some prisoners whose work calls for it, are issued white shirts and trousers instead of the blue. The shirts, trousers, and jacket are made of a polyester cotton blend of light weight. The jacket is lined with a light flannel. For linen each inmate is issued: sheets 1 towel 1 blanket 1 pillow case According to Mr. Conner, the laundry manager and the individual responsible for the issue of clothing to the inmates, thermal underwear is issued only to those inmates who work outside 8 hours a day. This is because of a lack of money. However, he contends that if a doctor prescribed it, he would issue thermal underwear to individuals who do not meet the other criteria. T- shirts for use as underwear were not being issued until recently. However, they are now a part of the issue and will be provided to any inmate who wants one. Straw hats are issued to outside workers through their supervisors who make the determination as to which inmates get them. Raincoats are not issued but are available for purchase by inmates in the institution canteen at a cost of under $3.00 each. According to Mr. Gunning, inmates who work outside can get raincoats if the department head draws them directly from the warehouse and issues them. The same applies to thermal underwear. When prisoners are dissatisfied with the procedure for issuing clothing and equipment, they can either file a formal grievance or write an informal note to the Superintendent or Assistant Superintendent. Admittedly, until recently, the institution's package rule prohibited inmates from receiving any type of civilian clothing through the mail and as a result, sweat shirts, jogging suits; and other items of a similar nature were prohibited and returned to the sender if sent in. Recently, however, the rule was changed so that inmates are now allowed to receive gray or white sweat shirts from outside correspondents even though jogging suits are still prohibited. Mr. Gunning admits that certain buildings at UCI, including the dormitory identified by Petitioners, do have problems with heat, but it is not, he says, a chronic problem. There is a chronic problem regarding broken windows which are broken by the inmates as fast as they are repaired. Since cold and climate conditions are considered a health and comfort item, available repairs to the living areas are made as quickly as possible on a priority basis. He does not see wet clothing as a problem. If it were, he would have heard about it sooner because the inmates would, without question, complain about it. He has heard no complaints about this subject and notwithstanding the allegations by inmates at the hearing that they are not allowed to change their clothing if wet, they are allowed to change if necessary. Mr. Singletary indicated that the rule on the issue of clothing calls for each inmate to have three sets of clothing in his possession notwithstanding the Petitioner's claim that they are issued only one set at a time. It is more likely that Mr. Singletary's isolation from the inside conditions at UCI renders his opinion less than valid. Accordingly, it is found that most likely the inmates are not issued all their uniforms at one time. This has no real bearing on the ultimate issue of the adequacy of the rule however. He admits that thermal underwear is not issued to all inmates. It is seasonal and issued to those inmates who work outside and need it. Raincoats are issued as needed for work and those inmates who are not issued raincoats can buy them at a reasonable price. Many inmates who work for PRIDE and the canteen receive direct pay. These include inmates working at the furniture factory, the tag plant, the abattoir, and other facilities and many other inmates receive money from outside sources. While some buildings may be underheated in the coldest weather, Mr. Singletary contends that in general, the buildings are warm enough. Recognizing that the package permit rule now permits inmates to receive sweatshirts through the mail, Mr. Singletary indicated that the rule may again be amended to permit inmates to receive thermal underwear through the mail.
Findings Of Fact 1/ The parties to this proeeeding have stipulated that Petitioner has standing as an inmate at Union Correctional Institution to challenge the provisions of Union Correctional Institution Operating Procedures No. 82-69. The parties have further stipulated that all of the provisions contained in the aforementioned operating procedure which are not self-limiting are intended to be either System or institutionwide in their impact. As mentioned above, Respondent and Petitioner have stipulated into evidence the challenged operating procedures and any relevant rules contained in Chapter 33, Florida Administrative Code. 2/ On or about December 15, 1976, Union Correctional Institution Operating Procedures No. 82-69 was initially issued. These procedures were revised on September 13, 1982, and were reviewed and continued in an operational status on May 23, 1983. The challenged operating procedures were issued ". . . to establish criteria for the placement of inmates in an Administrative Confinement status and to establish institutional policy and procedures applicable to such confinement." The operating procedures purport to be issued pursuant to authority contained in Sections 944.28 and 945.21, Florida Statutes, and Chapter 33-3, Florida Administrative Code. In the briefing process of this proceeding Respondent has conceded that the following portions of the challenged operating procedure constitute unpromulgated rules: That portion of 82-69.7A on pages 4 and 5 dealing with personal property which an inmate will be permitted to retain in his possession while in administrative confinement; 82-69.7B concerning inmate bank withdrawals; 82-69.7C dealing with canteen privileges; 82-69.7D dealing with library privileges; 82-69.7F concerning clothing for inmates in administrative confinement; 82-69.7K concerning religious material available to administrative confinement inmates; 82-69.7M concereing visiting privileges; 82-69.7U governing notarizing of legal papers and materials; and 82-69.8 governing restrictions to be imposed on privileges granted to inmates by virtue of the operating procedure. Further, Petitioner challenges in his memorandum Sections 82-69.4, entitled Criteria for Administrative Confinement, 82-69.70, entitled Medical Procedures, and 82-69.7Q, entitled Inmate Count procedures. Any sections of the operating procedures not argued by Petitioner in his Proposed Findings of Fact and Conclusions of Law have been considered abandoned. Section 82-69.4 of the operating procedures, entitled Criteria for Administrative Confinement, provides as follows: Inmates may be placed in Administrative Confinement who pose an immediate threat of violence or disruption to themselves, other inmates, Department employees, or the institution generally, or as a result of threats of physical harm from other inmates, or other good reasons. Reasons for placing inmates in Administrative Confinement are further defined as follows: Awaiting Disciplinary Action: When the evidence clearly suggests that to allow the inmate to remain in open population would present a clear danger to other inmates or to the security of the institution. Placing inmates in Administrative Confinement to await a disciplinary hearing is permitted only when there is a danger to the welfare of the inmate or other inmates in the population, or when the security and good order of the institution is in jeopardy. Pending Trial: For a crime committed in the Department when the facts clearly suggest that to allow the inmate to remain in open population would present a clear danger to the inmate, other inmates, or to the security of the institution. Custody Risk: Cases when the facts clearly indicate the inmate cannot be housed in the general inmate population. Inmates who, after removal from disciplinary confinement, clearly appear to the Classification Team to be a potential assaultive or disruptive factor if placed in the inmate population and who, therefore, cannot reasonably and safely be returned to the inmate population. For protection of the inmate or other inmates. The aforecited provisions of Section 82-69.4 of the operating procedures are a virtual recapitulation of the requirements currently contained in Rule 33-3.081(1) and (4) Florida Administrative Code. The requirements of the challenged operating procedures neither create, add to, nor detract from the rights of inmates at Union Correctional Institution. Section 82-69.7 0.1. of the operating procedures provide as follows: 1. Health Appraisal Prior to placement in confinement the inmate shall be escorted to the outpatient clinic for health appraisal. (In cases of combative or assaultive behavior, the appraisal shall be done as soon as possible after being confined.) Inmates who are acutely ill or whose mental condition or behavior shows sudden, rapid change (which may be due to the ingention[sic] of stimulants, drugs, alcohol, medications, or other toxic sub- stances, whether taken legally or illegally) who exhibit acute personality changes or other markedly bizarre behavior, or who have exhibi- ted a recent, serious intent to harm themselves, shall not be confined until the inmate's health status has been evaluated by the medical professional or paraprofessional on duty. If it is feasible to initially confine such persons in the clinic for observation, the medical staff member on duty will monitor the health status of the inmate in confinement at least every two hours, and more often as indicated in individual cases. The health appraisal must include as a minimum, the following: A brief review of health record Determine any medication the inmate is currently on that mustbe continued while in con finement, and essential scheduled health appointments for call-out. Vital signs, including temperature, blood pressure, pulse and respiration Determine any health complaints Perform physical examination as necessary based especially on any noted complaints For inmates in Medical Grades III or IV, determine any necessary continuity of care while in confinement An overall statement as to the fitness of the inmates' confinement will be based on the findings above No such specific procedure dealing with health appraisal was contained in either Chapters 944 or 945, Florida Statutes, or Chapter 33, Florida Administrative Code. These procedures are mandatory, and must be completed before an inmate may be placed in administrative confinement. The remaining provisions of Section 82-69.7 0 relate to Respondent's internal management of routine sick call, emergency medical procedures, medication, and inmate visits by the institution medical director. These sections do not purport to create or otherwise affect any individual inmate right. Section 82-69.7Q, entitled Inmate Count Procedures, provides, in part, that: The special nature of inmates confined on Administrative Confinement require maximum supervision and control. Consequently, there will be a total of six counts con- ducted throughout the day . . . . This section of the operating procedures goes on to establish the times and procedures for conducting the six inmate counts: an 8 a.m. response count; 12 noon response count; a 4:30 p.m. response count; a 9 p.m. master count; a 12 midnight body count; and a 4 a.m. body count. The only act required of inmates in this section is that they present themselves at their cell door and respond with their inmate number when their name is called at the 8 a.m., 12 noon, and 4:30 p.m. response counts.
Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
