The Issue This case arises out of a challenge to the validity of a policy and procedure at Baker Correctional Institution. That policy and procedure provides for the use of "contact cards" to record infractions committed by inmates while incarcerated at Baker Correctional Institution. At the formal hearing, the Petitioners called as witnesses, Joseph Edward Rowe, B. W. Stewart, Gerald Ford, Jack Swain Hazouri, Jr., and Earl Washington. Each of the Petitioners also testified on their own behalf. The Department called as its only witness W. Marion Ellis. The Petitioners offered and had admitted two exhibits, and Respondent offered and had admitted into evidence one exhibit. Subsequent to the final hearing, the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they were rejected as being unsupported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact Petitioner Joe Richardson is presently incarcerated at Baker Correctional Institution. Petitioner, Douglas Adams was incarcerated as an inmate at Baker Correctional Institution from September 23, 1983, until January, 1984, when he was transferred to Union Correctional Institution. Petitioner Joe Lewis Holland was incarcerated at Baker Correctional Institution from September 23, 1983, to January 24, 1984, when he was transferred to Union Correctional Institution. The Petitioners by this action are challenging the validity of a policy at Baker Correctional Institution which involves the use of a form called a "contact card" to record infractions committed by inmates. The contact cards are not intended to be a permanent record in the inmates' file and is used for various purposes within Baker Correctional Institution. The entries on contact cards are in many instances used as an alternative for giving the inmate a "disciplinary report" (hereafter referred to a "DR"). Prior to the contact card policy being implemented at Baker Correctional, that institution was experiencing 350 to 370 DR's per month. As a result of the use of the use of contact cards that number is now reduced to 70 per month. The contact cards are not used in determinations related to gain time or parole. The contact card is intended to be a behavior card which is used to monitor the inmates behavior without writing the inmate up and placing it in his record jacket as a permanent file. Because there are three different shifts of correctional officers the contact cards are used to provide each shift an accurate record of the inmates' behavior during the other shifts. One of the primary purposes of the contact card is to make the inmate responsible for their individual actions regardless of how minor or major the behavior may be. Many of the infractions entered on contact cards could appropriately be the subject of a DR. The contact card is treated as an informal record and the inmate is not required to sign it. The inmate is required to sign a Corrective Consultation form when he receives such a consultation. That form is considered a permanent formal record. There have been instances where entries were made on a prisoner's contact card and the prisoner was not informed of the entry. On December 22, 1983, Major B. W. Stewart, Baker Correctional Institution, sent an interoffice memorandum to all shift supervisors at Baker Correctional. The memo required the supervisor to instruct all their correctional officers to advise or counsel an inmate any time an entry is made on an inmate's contact card. The memo acknowledges a "habit" of writing an inmate up and not making the inmate aware of the write-up. The entries made on the contact cards are used to determine who is permitted to live in the preferable dormitories such "T" building. The number of entries necessary to cause a reassignment of an inmate from a preferable dormitory to a less preferable dormitory will depend upon the seriousness of the infractions. Dorm cards are also used in determining job assignments. In some instances when an inmate commits an infraction he is given a choice of extra duty or a write-up or DR. It is up to the officer placing the entry on the contact card as to whether the inmate performs extra duty as a result of the entries on the contact card, the extra duty is voluntary extra duty. If the infraction is serious enough and the inmate refuses extra duty, he will receive a disciplinary report. If the inmate desires to challenge an entry on his conduct card he can file for an administrative remedy with the administration of the institution, but he does not have the right to a hearing such as those conducted as part of the DR procedure. Joseph Edward Rowe at the time of the formal hearing in this matter, had been incarcerated at Baker Correctional Institution for a period of approximately ten (10) months. During that time period he had certain infractions placed on his contact card and was not informed of these entries. One evening Mr. Rowe was contacted by Sgt. Whitehead and informed that if he received one more infraction on his conduct card he would be moved out of Building G. He had eight write-ups or entries on his conduct card and he had never been counseled about any of the infractions which were the subjects of these entries. One of the entries was for talking too loud in the hall. Mr. Rower was received no disciplinary reports at Baker Correctional Institution. It is considered somewhat of a privilege to live in Building G because it is a preferable building. When he met with his classification officer for his progress report, Mr. Rowe was informed that the contact card was used in arriving at his overall evaluation. Mr. Rowe did not know whether his conduct card had ever been used in granting or denying him gain time. On one occasion Petitioner Joe Lewis Holland received an entry on his contact card for having a chair under his bed. When the correctional officer indicated he was going to write him up on a contact card for his infraction, Mr. Holland informed him it was not his chair. Another inmate Earl Washington, informed the officer that he had placed the chair under Mr. Holland's bed. The infraction was sill placed upon Mr. Holland's contact card. At the time the entry was made, Mr. Holland was not made aware that the entry was in fact being placed on his contact card. Petitioner Joe Richardson has, since the contact card policy was implemented, received several entries on his contact card. He was not aware of these entries at the time they were being made. Mr. Richardson has never received a DR. Petitioner Douglas Adams has received one write-up on his contact card and that write-up was for failing to get up for his "early chow." Early chow is for those inmates assigned to outside details. Mr. Adams, at no time while he was incarcerated at Baker Correctional Institution, was assigned to outside details. In January, 1984, Mr. Adams was transferred from one of the preferable dormitories to an open bay dormitory because of three entries on his contact card. Mr. Adams was not made aware of these entries until he was moved to the new dormitory. The specific policy being challenged is applicable only to Baker Correctional Institution and has not been promulgated as a rule in accordance with the requirements of Section 120.54, Florida Statutes.
The Issue Whether the conduct of Petitioner violated the Pinellas County Sheriff’s Office Civil Service Act and the rules and regulations of Pinellas County Sheriff’s Office and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. As a result, Respondent maintains and operates a correctional facility, commonly referred to as the Pinellas County Detention Center, or Pinellas County Jail. Petitioner is a detention deputy employed by Respondent at the Pinellas County Jail (Jail) and has been so employed for approximately fifteen years. Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioner is responsible for the care, custody, and control of inmates incarcerated at the Jail. On May 10, 1997, while employed as a detention deputy by the Respondent, Petitioner was assigned to the B-Wing of the South Division working on the third shift. While on break that day, Petitioner went to the booking area of the Jail to meet his wife for lunch. Petitioner's wife, an employee of the Pinellas County Sheriff's Office, was working that same shift in the booking area. When Petitioner arrived in the booking area, in addition to his wife, also present were Detention Deputies Larry Potts, Lloyd Spain, Denise Borland and Detention Lieutenant Krista Rauch. Spain and Borland were processing an individual being booked into the Jail while Potts was assisting Rice’s wife. Lieutenant Rauch was located at the booking desk in a glassed area. On May 10, 1997, at the time the events in paragraph 3 were transpiring, Mathew Robinson was being booked into the Jail. After a portion of the booking process had been completed, Robinson was seated on a bench in the booking area awaiting a routine medical screening. During this process, Robinson became disruptive and began screaming and yelling. As a result thereof, Spain attempted to calm Robinson and de- escalate his disruptive behavior. When Robinson remained uncooperative, Spain, with the assistance of Potts, took physical control of Robinson and escorted him out of the booking area through a door commonly referred to as the “blue door.” Robinson was not shackled or handcuffed. Petitioner remained in the booking area. After Spain and Potts left the booking area with Robinson, Petitioner detected the shuffling of feet in the hallway area on the other side of the blue door and he proceeded through the door to investigate. Petitioner then observed Potts and Spain with Robinson who was in a half-squatted position with his knees bent. Following behind Potts, Spain, Robinson and Petitioner, was Detention Deputy Borland who had subsequently come through the blue door into the corridor in order to photograph the inmate. As Spain and Potts continued to escort Robinson down the hall, Petitioner followed behind them at a distance until they arrived at the vestibule area at the entrance to the C- Wing. At the entrance to C-Wing, there is a control booth that protrudes into the corridor area. During this entire escort process, Robinson remained unrestricted, other than his being held by Spain and Potts. At some point prior to the incident described in paragraph 10 below, Lieutenant Rauch left the booking area and entered the hallway through the blue door. When Spain and Potts arrived at the C-Wing entrance, the gate was already open. Robinson had escalated his level of resistance by screaming, yelling, fighting, and opposing efforts to walk him through the gate. Prior to the entry of Robinson and the detention deputies into the vestibule area of C-Wing, Robinson began trying to pull away from Spain and Potts and his feet were off the floor in an attempt to break the officers’ efforts to move him forward. However, Robinson did not throw punches, strike blows, or kick. During the escalation of resistance by Robinson, Spain did not lose physical control of Robinson, although he was pulled off balance. Robinson did break away from the hold being exercised by Potts for a few seconds. Neither Potts nor Spain fell to the ground. Neither Spain nor Potts requested the assistance of Petitioner nor were they aware of Petitioner’s presence. As the struggle continued, Petitioner intervened by kicking Robinson in the buttocks. Spain and Potts then took Robinson to the ground. Petitioner assisted in restraining Robinson and escorting him into C-1 Wing. Neither Petitioner nor other deputies have been trained to kick an inmate in the buttocks as a control technique. Kicking is generally used as a technique to impair or disable an inmate. At the time Petitioner kicked Robinson, he was not attempting to impair or disable Robinson. Deputies are taught to kick as a defensive maneuver when an inmate is approaching an officer. The kicking technique generally involves striking the inmate on the side of the leg in the calf area in order to effectuate a take down or redirect the inmate to the ground. The training provided to correctional officers in the use of kicking technique limits its use to circumstances requiring a counter- move to impede a subject’s movement toward an officer. At the time that Petitioner kicked Robinson, Robinson was not coming toward Petitioner. The kicking technique utilized by Petitioner lifting his leg, bringing it to hip level, thrusting the foot forward and kicking the inmate in the buttocks, is not an appropriate defensive tactic. This is not taught as a defensive tactic because it involves striking what is commonly called a “red zone.” Red zone areas include the head, neck and spine, and groin areas. A blow to red zone areas is appropriate only in a deadly force situation because such a blow may cause serious injury or death to the person struck. It is uncontested that the struggle Robinson engaged in with Spain and Potts did not create a situation where the use of deadly force would be appropriate. On May 10, 1997, shortly after the incident in question, Borland prepared an incident report in which she made no reference to Petitioner’s kicking Robinson. Borland was questioned about the incident by Corporal Powell of the Internal Affairs Division on May 28, 1997. During this inquiry, Borland made no reference to the kicking incident. Thereafter, Borland spoke to her supervisor, Lieutenant Rauch, and expressed her discomfort with preparing a report that would implicate Petitioner in misconduct. Lieutenant Rauch instructed Borland to prepare a report reflecting what Borland had observed. Borland complied with Lieutenant Rauch’s directive and, on May 30, 1997, prepared a memorandum. In the memorandum, directed to Corporal Powell, Borland indicated that on May 10, 1997, she had observed Petitioner kick Robinson. In June 1997, Borland told Deputy Corporal Marjeta Salliiotte that she did not want to write the May 30, 1997, memorandum. However, Borland stated that Lieutenant Rauch told her that both Borland and Rauch could get in trouble if Borland failed to write the memorandum. The Pinellas County Sheriff’s Office conducted an internal investigation regarding the incident of May 10, 1997. As part of that investigation, on June 23, 1997, the Chain-of- Command Board took a sworn statement from Petitioner. After giving his account of the events, Petitioner was asked questions regarding the incident by Corporal Powell and Sergeant R. Alphonso of the Pinellas County Sheriff’s Office Inspection Bureau. Prior to the questioning, Corporal Powell instructed Petitioner “to answer questions directed to you during this interview truthfully and to the best of your knowledge.” While being questioned regarding the events of May 10, 1997, Petitioner admitted that he kicked Robinson in the buttocks and that this was observed by Lieutenant Rauch. However, from his point of view, the struggle that ensued between Robinson, Potts and Spain immediately prior to the kick could not have been observed by Lieutenant Rauch. From Lieutenant Raunch’s vantage point, as seen by Petitioner, her view of that struggle had to have been obstructed by the control room. Petitioner’s perception of where Lieutenant Rauch was at the time of the struggle is not inconsistent with that of other detention deputies in the immediate vicinity at that time. In response to questions during the proceeding of June 23, 1997, Petitioner was adamant in his denial that Lieutenant Rauch did not observe the struggle that Spain and Potts had with Inmate Robinson immediately before Robinson was kicked. Throughout his interrogation, Petitioner did not waver from this position, notwithstanding statements from Sergeant Alfonso that Lieutenant Rauch’s written statement gave “the inference that she saw that struggle.” Although Petitioner had responded when asked about the discrepancy in his statement and that of Lieutenant Rauch, Sergeant Alfonso continued to question Petitioner concerning whether the lieutenant observed the struggle. Among the questions asked by Sergeant Alfonso were: “Now, are you saying that [Lieutenant Rauch’s] being untruthful, that she’s lying about this?”; “And so what you’re telling us today is that Lieutenant Rauch is lying about seeing the incident?”; and “Your opinion is that Lieutenant Rauch is a liar?” In response to these questions, Petitioner answered in the affirmative. During the course of giving his sworn statement, Petitioner was asked whether he believed that Deputy Borland “lied in her statement against him.” Petitioner was also asked whether it was his “belief that Lieutenant Rauch put Deputy Borland up to that lie.” Petitioner answered both of these questions in the affirmative. At the time Petitioner responded to these questions, he believed that he was answering truthfully. There were two reasons that Petitioner believed that Borland’s second account of the incident was inaccurate and that Lieutenant Rauch told Borland what to put in the memorandum. First, Petitioner was aware that Borland’s May 10, 1997, incident report made no reference to the kicking incident and that Borland first mentioned the kicking incident in the memorandum dated May 30, 1997. Second, Petitioner based this belief on comments made to him by his wife. According to Petitioner’s wife, Borland had told another officer, Deputy Corporal Marjeta Salliiotte, that Lieutenant Rauch directed Borland to write the memorandum. Petitioner mistakenly concluded or interpreted this comment to mean that Lieutenant Rauch told Borland specifically what to include in the memorandum. After completing its investigation, the Administrative Inquiry Division (AID) presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and, after reviewing the materials provided by AID and giving Petitioner the opportunity to respond further, the complaint was sustained. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 021, relating to the custody arrestees/prisoners, a Level Five violation; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 024, relating to insubordination, use of profanity or insulting language towards a superior officer, a Level Five violation. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of two Level Five violations is the basis for assigning 60 disciplinary points. As a result, Petitioner was assessed 60 disciplinary points. The Pinellas County Sheriff’s Office General Order B-15 identifies a disciplinary range for 60 points to be from a minimum penalty of a seven-day suspension to a maximum penalty of termination. In the instant case, Petitioner was assessed a ten-day suspension. The conduct engaged in by Petitioner in kicking inmate Robinson did not constitute a good correctional practice, and is not consistent with the training or conduct expected of correctional officers. The role of a correctional officer in an altercation is to engage in defensive maneuvers and to gain control of the inmate creating the disturbance. Although correctional officers are allowed to defend themselves, kicking an inmate in the buttocks serves no correctional purpose, does not constitute the proper use of defensive tactics and is not designed to maintain control of an inmate or a situation. Kicking an arrestee or inmate in the buttocks area is not appropriate absent a situation where great bodily harm is being threatened by the inmate. The conduct engaged in by Petitioner in responding to questions during the course of giving a sworn statement do not constitute insubordination. Respondent was required to answer all questions truthfully, that is the truth as he knew or perceived it to be. In the instant case, Petitioner's comments were not made voluntarily nor were they directed to Lieutenant Rauch. Instead, Petitioner's statements were made in response to questions from a member of the Pinellas County Sheriff’s Office Inspection Bureau who was investigating the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding Petitioner guilty of the conduct alleged in Counts I and II of the charging document and suspending Petitioner, without pay, for eight (8) days from his employment as a detention deputy with the Pinellas County Sheriff’s Office. DONE AND ENTERED this 9th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIED Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1998. COPIES FURNISHED: William M. LauBach Executive Director Pinellas County Police Benevolent Association, Inc. 3737 16th Street, North St. Petersburg, Florida 33704 B. Norris Rickey Senior Assistant County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34616 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
The Issue Should Petitioner discipline Respondent for her acts as a correctional officer in association with an inmate?
Findings Of Fact In response to requests for admissions, Respondent admitted the following: The Respondent was certified by the Criminal Justice Standards and Training Commission on July 6, 1992, and was issued correctional number 94229. Between June 1 and July 31, 1994, the Respondent was employed as a Correctional Officer with the North Florida Reception Center. On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Inmate Dean Richardson. (D) On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Toyia Kelly. E) On March 6, 1996, Respondent resigned her position at North Florida Reception Center. Between June 1, 1994 and July 31, 1994, Inmate Dean Richardson was committed to the North Florida Reception Center as a permanent inmate. In that period Respondent came in contact with Mr. Richardson in her capacity as a correctional officer and his capacity as an inmate at North Florida Reception Center. Their contacts occurred while Respondent was on duty as a correctional officer. In a conversation that took place between Respondent and Mr. Richardson in a recreation room within the prison, Respondent told Mr. Richardson that she was "having a problem moving." Mr. Richardson responded by offering to give Respondent money. At first Respondent declined the offer. A week to two weeks later after Mr. Richardson "pushed the issue," Respondent agreed to accept the money. Mr. Richardson had approached Respondent about a dozen times before Respondent was willing to accept the money. Under the terms of their arrangement, Respondent gave Mr. Richardson a post office box address to send the money and a name at that address. The name was Toyia Kelly. In furtherance of the agreement between Mr. Richardson and the Respondent, Mr. Richardson caused a $200 draft from his inmate bank fund to be sent to Toyia Kelly on June 8, 1994, at the address Respondent had provided . After Mr. Richardson sent the $200, he asked Respondent if Respondent had received the money. She answered "no." This conversation took place within the institution where Mr. Richardson was housed. When Respondent told Mr. Richardson she did not receive the $200, Mr. Richardson told Respondent that he would send more money. Mr. Richardson did send more money, but this time he sent the money to a different post office box than before. Respondent had provided Mr. Richardson the new post office box address. On June 24, 1994, Mr. Richardson withdrew $150 by draft from his inmate bank fund and paid it to the order of Toyia Kelly at the new post office box address. Mr. Richardson did not confirm with Respondent whether Respondent had received this $150 that had been paid directly to Toyia Kelly. Of his own volition Mr. Richardson determined to send an additional $150 by a draft from his inmate bank fund. Again this was paid to the order of Toyia Kelly at the second post office box address that had been provided by Respondent. This draft was made on July 11, 1994. On this occasion Mr. Richardson asked Respondent if she had received the second $150 draft. In response Respondent nodded her head in the affirmative.
Recommendation Upon consideration the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which revokes Respondent's correctional certificate number 94299. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sandra Griffin 2852 Wayne Drive Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29) In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9) The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4) On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26) In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean) By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6) Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13) On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14) The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20) Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28) On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form. Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Earl Archer, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32301 Edward M. Teuton 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Conley Kennison Attn: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
The Issue Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
Findings Of Fact 1. This case arose subsequent to the Dismissal of Florida Prisoners Legal Aid Organization, Inc. v. Department of Corrections, (DOAH Case No. 04-004094) which challenged the Department of Corrections (DOC) proposed rule 33-210.101(22). That case, in turn, had been consolidated from three additional cases: Teresa Burns Posey v. DOC, DOAH Case No. 00-4286; Teresa Burns Posey, Eric Burns and Janet Knight v. DOC, DOAH Case No. 01-0610; and Teresa Burns Posey v. DOC, DOAH Case No. 00-5130. 2. Three issues are raised in this case. First, is a challenge against DOC proposed rule 33-210.101(22). Second, is a challenge to existing DOC rule 33-102.202, F.A.C. Third, is a charge that DOC and the Department of Administrative Hearings (DOAH) have acted in concert to deprive Petitioners of due process. 3. Rule challenges are handled like 120.569 and 120.57 proceedings. The Administrative Law Judge's (ALJ) order is Final Agency Action. 4. Bob Posey is an inmate within the Florida Prison System. 5. Bob Posey is secretary of Florida Prisoners Legal Aid Organization, Inc., (FPLAO) a Not for Profit Corporation. 6. Teresa Burns Posey is the wife of Bob Posey and chairman of FPLAO. 7, The DOC is a Governmental Agency of the State of Florida. 8. The DOAH is an Agency of the State of Florida. 9. Teresa Burns Posey, a Petitioner, and DOAH, a Respondent, were not parties to the earlier challenge to proposed rule 33-210.101(22). 10. The challenge to the proposed rule 33-210.101(22), set forth in the Petition of the previously dismissed case FPLAO v DOC (numbered 04-004034 DOAH January 28, 2005) is nearly identical to that set forth in the petition of the current case, FPLAO & Teresa Burns Posey V DOC and DOAH, (Case No. 05-0622RP, DOAH). The pleadings are word-for-word identical except for inserting Teresa Burns Posey’s name from time to time and except for paragraphs 30-40, where the Petitioners attempt to state the basis for a cause of action against DOAH. The 2004 Case 11. The merits of the case were never heard, because once Bob Posey was disqualified from representing FPLAO, FPLAO never appeared to press its case. 12, The only issue addressed was the threshold question of the qualification of Bob Posey to represent FPLAO. 13. Arrangements were made for Bob Posey to attend the hearing on his qualification, and he presented the case for his approval as qualified or authorized representative. 14. He relied upon Magnolias Nursing and Convalescent Center, Inc. v_DHRS, 428 So.2d 256 (Fla 1°* DCA 1982) rev. den. 449 So.2d 265 (Fla. 1984) to qualify him as an “authorized representative”. 15. Bob Posey was found unqualified. 16. Upon being disqualified, Bob Posey told ALJ Harrell that she might as well dismiss the case as Mrs. Theresa Burns Posey was not qualified to represent FPLAO. He stated that there would be no other appearance on behalf of FPLAO and no responses filed, and that is what happened: no one appeared for FPLAO at the Final Hearing. The Current Case 17. Petitioner filed the case at bar against DOC challenging proposed rule 33-210.101(22). In addition, Petitioner alleged that DOAH had acted in concert with DOC to deprive petitioner of due process. 18. In light of DOAH being named as a Respondent, on September 27°, 2005 the Administrative commission appointed Jonathan A. Glogau, Esquire as the ALJ in this matter. 19. On August 14™, 2006 Jonathan A. Glogau recused himself in this matter. On August 24'*, 2006 the Administrative Commission appointed William W. Large, Esquire as the ALJ in this matter. 20. On October 17°, 2006 ALJ Large sent out a Notice of Case Management Conference for Monday October 23, 2006 at 3:00 p.m. The Notice was sent to Petitioner Teresa Burns Posey. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” 21. Teresa Burns Posey sent a letter to ALJ Large in which she demanded that he proceed as she directed. She demanded that he enter orders she directed, reach conclusions of law and interpret cases as she demanded, disqualify Respondent’ s attorney, and if he did all this, the FPLAO and she might permit him to continue as ALJ in this case. 22. On October 23, 2006 a Case Management Conference was commenced at 3:11 p.m. No representative from the FPLAO was present. 23. On January 8°, 2007 ALJ Large sent out a Second Notice of Case Management Conference for Tuesday, January 30, 2007 at 10:00 a.m. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 24. On January 11", 2007, a Debbie Cantrell signed the Notice of delivery acknowledging the receipt of the case management order. 25. On January 30, 2007 a Case Management Conference was commenced at 10:11 a.m. No representative from the FPLAO was present. 26. On July 20th, 2007 ALJ Large sent out a third Notice of Case Management Conference for Thursday, August 2, 2007 at 11:00 a.m. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 27. Teresa Burns signed the notice of delivery acknowledging the receipt of the Case Management Order. 28. On August 2, 2007 a Case Management Conference was commenced at 11:00 a.m. No representative from the FPLAO was present. During this hearing, the Court read into the record all the attempts to ensure that Teresa Burns Posey had Notice of the Case Management conferences and ample opportunity to attend. 29, On December 7th, 2007 ALJ Large sent out a Notice of Hearing on Respondents’ Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs for Monday, January 7", 2008 at 2:00 p.m. The hearing was set by phone with a toll free call in number. The Notice of Hearing specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 30. On January 7th, 2008 the hearing on Respondents’ Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs Case Management Conference was commenced at 2:10 p.m. No representative from the FPLAO was present. 31. The threshold issue is again, Bob Posey’s qualification to represent FPLAO and is based upon the same argument and case. 6 32. Teresa Burns Posey has asserted in her letter that if Bob Posey were not permitted to appear on behalf of FPLAO, she would not appear. Presumably she would not appear on her own behalf, and would also not appear on behalf of FPLAO. 33. The clear purpose of the 2005 suit is not to litigate the merits of the rule challenges or the due process claim, but to collaterally attack the Order on Bob Posey’s representation of FPLAO entered by Judge Harrell. 34. In this case, FPLAO and Teresa Burns Posey have failed to appear at Case Management Conferences scheduled for October 23, 2006; January 30, 2007; and August 2, 2007. In addition, FPLAO and Teresa Burns Posey failed to attend the January TR, 2008 hearing on Respondent’s Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs. As in the prior case, FPLAO and Teresa Burns Posey have failed to appear for scheduled hearings and conferences, establishing a pattern of behavior when Bob Posey was not determined to be qualified to represent FPLAO. 35. In a challenge to a proposed rule the Burden is on the Petitioner to go forward with evidence. 36. In a challenge to an existing rule, the Burden is on the Petitioner to prove by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority. 37. Petitioners have abandoned both the rule challenges and the due process claims. It appears that petitioners had no interest in those claims. It appears that Petitioners were interested only in finding an avenue for Inmate Bob Posey to appear as a representative in an administrative case.
Conclusions This cause came on for consideration by this tribunal pursuant to Respondents’ Motions to Disqualify Qualified Representative, for Final Order of Dismissal and for Attorney Fees and Costs. Having reviewed the motion, the case file, and being otherwise fully apprised in the premises:
The Issue Whether the Department of Corrections' alleged policy of forbidding phone calls between incarcerated husbands and wives, when the wives are incarcerated at Broward Women's Correctional Institution ("BWCI"), is an unpromulgated rule and therefore invalid.
Findings Of Fact Based on the evidence presented, the following facts are determined: The parties stipulate that petitioner has standing to maintain this proceeding i.e. that he is substantially affected by the challenged agency policy. Petitioner is currently incarcerated at Union Correctional Institution; his wife is incarcerated at Broward Women's Correctional Institution (BWCI). Both institutions are part of the state prison system operated by the Department. In August 1983, petitioner asked for permission to telephone his wife at BWCI, but his request was denied by Department officials. Under a BWCI policy, as well as a Department policy, inmates at other institutions are not normally allowed to place telephone calls to inmates at BWCI. The departmental policy is embraced by Rule 33-3.125(1)(e) , which provides: (e) Inmates may not receive incoming telephone calls because it is disruptive to normal operating and program functions of an institution. This rule effectively prohibits inmates from placing calls to inmates at other correctional institutions. Petitioner has not shown that the Department's denial of permission was dictated by any written statement or policy other than that contained in this Department rule.
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the memorandum petitioners challenge amounts to a rule improperly promulgated? Whether the rules petitioners challenge are arbitrary and capricious or are otherwise beyond the authority delegated to respondent? STANDING STIPULATED At the beginning of the hearing, Mr. O'Donnell stated a motion ore tenus to strike paragraph five of the petition, in which the memorandum was challenged, on grounds that a challenge to the memorandum was premature, quoting the memorandum: "[T]he limits contained in this memorandum will not be enforced until April 1, 1984." After argument, the hearing officer was persuaded that the challenge was not premature on its fact, inasmuch as inmates with "items no listed . . . or an excessive amount of property" must decide whether to dispose of property before April 1, 1984, or suffer its confiscation; since nothing further was required for the memorandum to be efficacious; and since failure to enforce a rule does not alter its character as a rule. After the motion to strike was denied, Mr. O'Donnell stipulated, on the record, that standing was not in issue. He nevertheless argues in respondent's "proposed findings of fact-- conclusions of law--final order," as follows: Knowing the issue of standing as to the memo to have been put at issue by Respondent, it was incumbent upon Petitioner to place into the record some indication of impact. Having failed to do so, Petitioners lacked standing to challenge the memo. State v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). 9. The issue of the adverse impact of the memo is crucial to a proper determination of whether the memo is an invalid exercise of delegated legislative authority. * * * The memo, rather than adversely affect inmates, may not have any substantial impact on Petitioners. Section 120.56, Fla. Stat. Again, Petitioner entirely failed to introduce evidence on this point. This argument is precluded by Mr. O'Donnell's stipulation on the record at the hearing. Having stipulated that no proof was necessary to show the impact of the memorandum, respondent cannot now be heard to complain of the absence of proof on that point. Mr. O'Donnell also stipulated that the memorandum was not promulgated in accordance with Section 120.54, Florida Statutes (1983).
Findings Of Fact It is clear from its title that the memorandum is meant to apply only to Union Correctional Institution. The body of the memorandum, dated February 1, 1984, provides, in full: The attached 1/ is a list of the type and quantity of inmate property authorized at UCI. Inmates may also possess items sold by the Canteen, items received through an approved Package Permit, items authorized to be in cells as part of the Hobbycraft Program and items issued by the state. Property Quantity limits are necessary to prevent fires and control insect infestation. In addition, they provide a standard for both inmates and staff to follow in determining if an inmate's amount of property is excessive. Since many inmates have accumulated property for a long time, the limits contained in this memorandum will not be enforced until April 1, 1984. Inmates who have items not listed in this me[m]orandum or an excessive amount of property should begin making arrangements to send items out of the institution. Inmates who need to dispose of property should send a request to Sgt. Singletary, Property Officer. Items may be mailed somewhere or placed on the Main Gate for pick-up by a visitor. Your cooperation in reducing the amount of excess property yourselves, prior to April 1, 1984, will be greatly appreciated. Petitioners' Exhibit No. 2. It is signed by D. E. Jackson, Colonel, Correctional Officer Chief II, and P. V. Gunning, Assistant Superintendent of Operations. Dennis Dean Cooper is an inmate at Union Correctional Institution. In the month or two preceding the hearing, prison personnel confiscated wax, a wooden mallet, a hammer, a knife and rubber glue, all belonging to Cooper, who had acquired them, after gaining approval to do so, in connection with the Hobbycraft program. Guards searched from cell to cell and filled a 50 gallon barrel with items they took from Dean's cell alone. Kenneth Hayes' right eye was injured in a boxing accident. A governmental agency set up to assist the blind issued Hayes, an inmate at Union Correctional Institution, a green tape cassette recorder which prison personnel seized on January 19, 1984; they also took the stool he had made with approved Hobbycraft materials. That was the same day, or perhaps the day before, William Joseph Goens, an inmate house in the Main Housing Unit at Union Correctional Institution, lost his inlaid wooden chessboard in a "shakedown." Another inmate, Clayton, had given him the chessboard. Goens later saw the chessboard in a trash barrel in the back of a dump truck. Incarcerated at Union Correctional Institution and housed at 3T8, John Richard Clayton also lost property in the January 1984 shakedown, including Hobbycraft items, personal letters and letters from his attorney bearing on the proceedings eventuating in his incarceration. He is skilled at leather working and sometimes has temporary possession of other inmates' leather goods for purposes of effecting their repair. An electric fan which an inmate transferred to another institution had given Clayton before leaving was also confiscated. When prison personnel proposed to confiscate John McConnell's legal papers, if he did not dispose of them himself, he called several lawyers. Eventually he was issued a metal locker to which he transferred his legal papers from the cardboard box that had held them. No papers were ever confiscated. Petitioner Carl Cribbs, also confined at Union Correctional Institution lost two, bound folders containing legal documents, including 13 affidavits, as well as an electric fan, when these items were confiscated by prison guards on January 19, or 20, 1984. Radios and electric fans are registered as a means of identifying them. They are treated as contraband except when they are in the possession of the inmate to whom they are registered. If an inmate lends property to another inmate, it may become contraband subject to confiscation, regardless of the type of property involved. These practices protect inmates from theft, which is rampant at Union Correctional Institution. Guards and inmates alike are subject to "shakedowns" without notice as a means of controlling the flow of contraband. Under the right circumstances, virtually any property in an inmate's possession might be seized. At one time inmates were permitted to have matches and buy honey from the canteen in glass jars. After they began hurling empty honey jars at one another, the canteen switched to plastic containers for honey, and glass jars of all kinds were treated as contraband and confiscated. Inmates are still allowed cigarette lighters, but matches have been contraband ever since the authorities learned that new equipment in the shop made it possible for the inmates to manufacture zip guns. On the other hand, inmates are allowed Hobbycraft items, under ordinary circumstances, including X-acto knives. These knives have blades less than an inch long, but could be lethal if used as a weapon. If an inmate if found guilty of a rule infraction and subjected to administrative confinement, his property is confiscated. If an inmate attempted suicide, even his clothes might be removed. Petitioner Joe Lewis Holland, confined at Union Correctional Institution at the time of the hearing, had legal papers confiscated while he was at Baker Correctional Institution, but eventually recovered them pursuant to court order. Douglas L. Adams and Joe Lewis Holland v. Department of Corrections ex rel. Louie L. Wainwright, Secretary, et al., No. AV-483 (Fla. 1st DCA; December 13, 1983). At Baker Correctional Institution everything that did not fit into a bed locker was treated as contraband. David Watson, Assistant Superintendent at Florida State Prison, has been ordered by the fire marshall to cause large cardboard boxes of papers to be removed from the prison. Some items seized as contraband are burnt. Others are given to the Boys' Ranch or the inmates' welfare fund. All Florida prisons have storage rooms and inmates are ordinarily issued lockers, but there are physical limits on how much personal property can be stored at Union Correctional Institution or any other prison. Too many things in prisoners' cells make for problems with sanitation and insect infestation.
