The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner testified in his own behalf, admitting that he had failed to answer Question 13, "Have you ever been arrested?" honestly. He stated that he had been embarrassed to put down the fact that he had been arrested. He stated that he had applied for the position as an unarmed security guard with Oxford Security Services thinking that it would be a temporary position. However, since his employment he has been promoted to safety coordinator, salesman and supervisor/operations manager of the company's operations in the Jacksonville area. The applicant was first employed in June of 1979. He stated that he needed to be licensed in order to maintain his present position. The applicant explained his arrest in 1963 and in 1977. His arrest in 1963 was for larceny and arose from taking money belong to the company by which he was employed and purchasing a car with it. The court withheld adjudication and placed the applicant on probation for five years. During that time he married and left the State of Florida in violation of the terms of his probation. In 1977, the applicant was employed in Jacksonville, Florida, as a used car salesman. After a 24-hour sale-athon, the applicant began bar-hopping and ended up in a topless go-go club. His next conscious recollection was waking up in the Duval County jail, where he was advised that he was charged with lewd and lascivious conduct. He had no knowledge of the conduct which gave rise to his arrest. The Duval County court advised the applicant to enter a plea of nolo contendere and be transferred to Miami court for disposition of the applicant's offense of parole violation. The Duval County court sentenced the applicant to two days for lewd and lascivious conduct, during which time he was transferred to the Dade County courts. The charges of violating parole in Dade County were dismissed. The applicant further explained his arrest for passing a worthless bank check. The applicant stated that he had overdrawn his account unknowingly in 1971. He was arrested and paid off the overdraft, and the charge was dismissed. The applicant stated that his employer was not aware of his arrest record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the applicant's application for a Class F, unarmed guard license be denied; however, that the applicant be afforded the opportunity to refile his application with full disclosure, and that in the absence of any other disqualifying grounds said reapplication be approved. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Wayne M. Chadwick 865 Lane Avenue, #703 Jacksonville, Florida 32205 =================================================================
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
Findings Of Fact Petitioners, Douglas Lavern Adams, Edwin Paul, Stanley Blanding, Carl B. Cribbs, Efron Yero, and James M. Cook are all incarcerated in the State of Florida at Respondent's facility, the Union Correctional Institution located at Raiford, Florida. On November 15, 1984, the Department of Corrections forwarded to the Bureau of the Administrative Code for publishing in the next available issue of the Florida Administrative Weekly, its proposed Rule 33-5. The proposed rule in question was published in Volume 10, No. 46 on November 21, 1984. The stated purpose and effect of the proposed rule was to clarify and revise policies and procedures relating to visitation with inmates. The proposed rule purported to make certain changes to pre-existing Rule 33-5 as outlined in the proposal which, among other things, allowed superintendents to make exceptions to any provision of this rule on an individual case by case basis, based on the best interests of the inmate, the security and welfare of the department, or both with the qualification that the exception could not be more restrictive than the provisions of the rules and with the further requirement that all visiting policies promulgated by the superintendent shall be subject to approval by the Secretary of the department. Petitioners contend that the proposed changes severely limit their prior existing visiting rights. Specifically, Petitioners' contentions include: Rule 33-5.01 is without legislative authority in that the Secretary has no authority from the legislature to delegate policy making authority to superintendents; Rule 33-5.04 is an invalid rule for the same reason and because it deprives hospital inmates of family visits in an arbitrary and capricious manner, without a valid penological objective, and in violation of both equal protection clauses of the State and Federal Constitutions and is fatally vague and invalid in that by stating, "any other special status" it fails to specify what status prisoners will be prohibited from visitation; Rule 33-5.07(5) constitutes an invalid delegation of legislative authority to an employee; Rule 33-5.08(2) is arbitrary, capricious, and without any known penological objective, constitutes an abuse of discretion, and is unreasonable in that it is without a rational basis for the potential reduction of visiting days; Rule 33-5.08(3) is discriminatory on its face, is fatally vague, and insufficient in specificity to inform Petitioners what circumstances will be considered; Rule 33-5.08(4) is without a rational basis in fact and is fatally vague; Rule 33-5.10(c) is an unconstitutional rule in that by authorizing unwarranted searches and invasions of privacy of visitors, this would discourage visitation and thereby deprive Petitioners of visits; Rule 33-5.08(12)(c) is fatally vague and overbroad and discriminates against female visitors in an arbitrary and capricious manner by permitting their exclusion if they are "not appropriately clothed or are dressed in revealing attire . . . and other like attire"; Rule 33-5.08(14) and (15) constitute an abuse of discretion and are discriminatory in an arbitrary and capricious manner in that they refer without defining or explaining "security" reasons for allowing non-contact visits; (j) Rule 33-5.04 and 33-5.08(2) render the proposed rule ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied on a just and rational basis; (k) that Respondent has failed to provide adequate notice of the proposed rule to those inmates in administrative, disciplinary, and close management status. The proposed changes to the rules came about after Respondent conducted a survey of the existing visitation policies of all institutions within its system. This review indicated a need for a statewide set of standards for visitations while at the same time allowing the superintendents of the various institutions the flexibility to tailor standards at the individual institutions to local needs and the special needs of the inmates. The survey showed a need for some flexibility within the rules to accommodate the uniqueness of the individual facilities and the special needs inherent therein while at the same time addressing the overall needs constant throughout the system such as security, inmate health and welfare, and safety of both staff and inmate population. Primary among the concerns considered by the Department was the security aspect. The need to control contraband and to maintain order and discipline within the confines of any given facility is obvious. Without question a valid concern of the staff is the ability to control who and what goes into the facility. The superintendent has the inherent power to interdict the introduction of drugs, alcohol, weapons and similar contraband into a facility. He or she also has the responsibility to insure against the potential for disturbance caused by obviously inappropriate clothing worn by staff visitors to a sexually segregated institution. James M. Cook is an inmate at the Union Correctional Institution who has received special visits of the type to be governed under proposed Rule 33- 5.04 in the past. On those occasions he had to establish for his proposed visitor the classification the visitor would fall under, such as distance from the facility travel led or other criteria. In his opinion the proposed rule is somewhat vague. He contends it does not give specifics as to mileage, clothing to be worn, etc., in detail adequate for the proposed visitor to know what is required. He understands from a conversation with his classification officer that the distance requirement to be applied under the new rule is 400 miles but this criteria is not specifically stated in the proposed rule nor can it be determined from reading the rule. As to female visitors, he contends that that portion of the proposed rule which provides for appropriate clothing is insufficient in detail to insure the visitors will be properly dressed for the visit. It has been his experience in the past that if a female visitor is improperly dressed, as determined by the institution's personnel, the guards require her to wear a shapeless smock. Under the terms of the new rule, Cook said, he is required to inform his visitor what can and cannot be worn, but because the rule is devoid of detail, it is difficult for him to do this. Proposed Rule 33-5.06(3) does not, as Cook asserts, require the inmate to inform the visitor in detail of the particulars of the visiting program only the basics, such as hours, days, and, to be sure, the need for non-provocative apparel. The question on the distance requirements for special visits is also of concern to inmate Cribbs whose mother lives in Tampa, a 350 mile round trip from this facility. Cribbs contends the proposed-rule has no specifics in it as to mileage for special visitors. In the past, his mother, coming from Tampa, has been able to visit on both Saturday and Sunday and because of the distance, has made a two day visit out of the trip. The new rule, according to Cribbs, leaves everything up to the superintendent regarding visiting privileges and depending upon the determination of that officer, his mother may be forced to come this long distance to see him only on one day of the weekend. Under the current policy, inmates are allowed visitors on both Saturday and Sunday and the new rule, he feels, will change this benefit to allow visits normally only once per weekend. Cribbs is also concerned about the dress requirements of the new rule. He is concerned with the term "like attire" which he feels makes it difficult for him to tell his female visitors what to wear. Petitioner, Stanley Blending, has also had visitors on both days of the weekend in the past. He had a need for this benefit because his grandmother came from Canada for a visit once a year and, in addition, his son comes up to visit from time to time and the two day visit is required for him to talk with the young man regarding family problems. At UCI he currently gets two days of visits and, in his opinion, these two day visits have had a beneficial, rehabilitative effect. As in the case of Cribbs, Blanding's family comes from Tampa and that distance makes it necessary for them to have a two day visit. He is concerned and believes that the proposed rule will limit visits to one day per weekend which, in his opinion, would severely limit the amount of visitation he would receive. He is also concerned, about the proposed rule regarding appropriate dress for female visitors. The proposed rule says nothing about the institution providing a smock for inappropriately dressed females as has been done in the past. Combining the two changes, if his visits were reduced to one day or his female visitors were barred because of "improper" clothing, either situation would have an adverse effect on him. The current rule does not provide what is appropriate clothing and under the terms of the new rule, he would have a difficult time explaining to his female visitors what "appropriate" clothing is. Inmate Yero was in disciplinary confinement in December, 1984 and then placed under investigation. While he was in that status from October 26, 1984 through early January, 1985, he did not get to see nor did he ever receive notice of the proposed rule. Prior to October, 1984, he was allowed visitors from one to two hours. This was the rule for prisoner in disciplinary confinement. The new rule would allow the superintendent to restrict visitors to prisoners in Yero's status. The new rule adds the word "infirmaries" to the list of special status inmates. He signed the Petition herein with only limited knowledge of its contents. Inmate Paul is presently a hospital inmate and has been intermittently since 1982. He is housed in the hospital because of a disability which confines him to a wheel chair not because of any contagious or infectious disease. He understands the new rule to state that since he is in the hospital, he could be denied visitors even though he is not a patient but a special housing prisoner who is considered to be a regular inmate. He was advised that when his sister from New York called to arrange a visit with him, she was told that because he was in the hospital, he could have only a one hour visit with her. The new rule could prohibit him from having visitors at all, he says, and leaves too much discretion with the superintendent. The one hour rule which applies to inmates in the hospital has had an adverse effect on him since he has been deprived of visits from his sister. He and his sister are orphans, he says, who have just been recently reunited after a long separation. He contends that the new rule puts too much control in the hands of the superintendent. It is too vague and gives the superintendent authorization to make decisions which he should not have. The propriety of placing control, the right to make decisions, and discretion in the hands of the superintendent is clear. Without question, the superintendent is the individual most qualified to make those decisions and to exercise those functions. Adams' mother is old. Because of this and because she cannot walk far, the past changes in parking and entry procedures have cut down on her visits to him. Because of this, he is not likely to be affected by the potential for a change to one day visits. However, as to the dress rule, he would have difficulty in telling his family what they could or could not wear based on the descriptions or lack thereof in the proposed rule. During the four years he has been in confinement, he has found it difficult to know or determine who is going to do what at any given time. His mother has told him that she would like to visit him but doesn't want to go through all the difficulties she has to encounter when she does visit. She states to him that the metal in her bra sets off the metal detector utilized to screen visitors and as a result, she wears a tank top on her visits which would be prohibited by the new rules. He considers this to be deleterious to him and his welfare and he contends that the new rule will destroy any uniformity among the 79 or so different facilities within the DOC. There is no evidence that the sole alternative to a metal braced bra is a tank top. Numerous other modes of dress are available to women of all ages, sizes, and shapes. According to Harry Singletary, Assistant Secretary of the Department of Corrections, the Department is presently reviewing all rules and policy and procedure directives in an effort to do away with the latter and make all controlling directives for the Department in the form of Rules. The intent is to promulgate standards for statewide application to meet the needs of the families of the inmates, the inmates, and the institutions. Mr. Singletary contends that the majority of changes set out in the proposed rules make them more liberal for the inmate or increase security for the institution. Both of these goals are worthy and supportable. It was the intent of the drafters of the rule to standardize procedures so that visitation would be made easier and safer and to increase uniformity among the institutions so that prisoners moving from one institution to another could know what to expect. It is the Department's position that a rule should not create surprises for the inmates and should liberalize and simplify procedures for them as much as possible. As to proposed Rule 33-5.01, the reason for the new language was to give the Superintendent the discretion to provide more visitation for the inmates and their families and to deal with special needs of the inmates or the institution. The change here is to liberalize - not penalize. The terms of the proposed rule provide that Superintendents' interpretations cannot be more strict than the terms of the rule and it in essence legitimizes superintendents being more liberal than the rule calls for. Based on the population and size of the UCI visitor park, notwithstanding the concerns of Mr. Adams that the Legislature and recent court decisions will have the effect of significantly reducing the population at UCI, there should he no change in visitor policy as it exists now at this institution. As a matter of fact, if the population decreases, there would be less pressure or reason to reduce the visit days for each inmate to make more time available for others. The fact that some language is less than specific (i.e., 6 hours instead of 9 am to 3 pm) reflects an intention on the part of the drafters to give the superintendent latitude to tailor local policy to the needs of the inmates and his institution. It is recognized that there may be some abuses by superintendents, but if this should occur, it would be the exception rather than the rule and there are adequate remedies existing in the DOC rules through grievance procedures to rectify any such abuse. With regard to proposed Rule 33-5.04, dealing with special status inmates, the change here proposed adds only the word "infirmaries." The existing rule was changed only to describe all types of facilities. The rule originally was designed to prevent the spread of disease incident to the closeness of prison populations. However, it is Mr. Singletary's confirmed opinion that ambulatory or non-infectious patient- inmates, such as Mr. Paul, one of the Petitioners here, would be allowed visitors in the visitor park the same as any other inmate, on regular hours. Proposed Rule 33-5.07(5) is a new offering which gives the Superintendent authority to act to promote discipline but provides adequate safeguards to prevent abuse. Proposed Rule 33- 5.08(3) is also new and it gives the inmates the opportunity to tell the superintendent what they need and provides for extra visiting time when justified. It also gives specific factors that inmates are to use to justify extra visiting time. It was intended to promote uniformity. Proposed Rule 33-5.08(10) dealing with searches, is designed to provide for a method to prevent the introduction of contraband into the institution. It is for the security of the institution and if reasonable, should provide no problems. There are presently no dress codes applicable to visitors coming into UCI or any other institution. Proposed Rule 33- 5.08(1)(c) applies to both men and women and is based on the need for security in the institution. The intent of the agency was to limit the opportunity for rude, suggestive, or untoward comments by inmates which could give offense to the resident inmate relative of the visitor to whom the comments are directed and which could incite fights or other violence. Proposed Rules 33-5.08(14) and (15) both exist in the present rule. Subparagraph 14 deals with people in protective custody and death row inmates as well as violent inmates. Subparagraph 15 deals with those instances where contact visits might jeopardize security. Those inmates in normal status would not be separated. The rules are based on the need to maintain security and prevent the passing of weapons, the spread of disease, or inappropriate conduct as is periodically demonstrated by inmates and visitors. The machinery designed by the agency to deal with those instances envisioned by the rule where a Superintendent of a particular institution might want to impose a standard stricter than that encompassed in the rule, requires that superintendent to submit his proposal to the Secretary of DOC along with justification and documentation indicating a need for a stricter standard. It is also envisioned that prisoners requesting a transfer from one institution to another write in advance to the new institution to get the local policy regarding a particular area or, wait to be briefed as to local policy during the incoming orientation on arrival. Just as the institutional superintendent must justify imposing a stricter standard than called for in the rule, it is, as well, the responsibility of the inmate who request extra visiting time, to present factors justifying the extension, the grant or denial of which is within the prerogative of the superintendent. Admittedly, while the rule does not define specific criteria for the superintendent to use in making his decision, it will be based on the reasonableness of the request and the sufficiency of the reasons submitted by the inmate. In short, the inmate must make his case and is not limited as to the factors he may use to show the need for extra time or for the change in location. The decision is within the discretion of the superintendent and is similar to other areas such as release, privileges, and the like in which the superintendent has been held capable of legitimately utilizing his discretion.
Findings Of Fact The Respondent was certified by the Commission as a correctional officer on July 1, 1981, and was issued Certificate Number 33-81-500-00. At all times material to these proceedings, the Respondent was employed by the Collier County Sheriff's Office and was assigned to work with inmates in the county jail. In the course of his duties, Respondent Parks became acquainted with a young female inmate, Melissa Sue Watson. After her release from jail, the Respondent continued to see the woman socially. As part of their relationship, the Respondent would occasionally give the woman money or anything else she requested that he was able to provide for her. While the Respondent and the young woman eventually became sexually intimate, the money was not given to her in direct exchange for sexual services. Instead, the money and other requested items were bestowed as gifts to demonstrate his affection and to assure that she would continue to allow a married man of his years to court her. Due to the fact that Respondent's wife was in charge of the family finances, the sums of money given to the young woman were sparse. These gifts amounted to little more that the Respondent's spare change and lunch money. After the relationship progressed to the stage where the parties had become sexually intimate, the young woman asked the Respondent to get her some marijuana. She was provided with the pipe and marijuana the Respondent had confiscated from his teenaged son. The Respondent smoked the marijuana with the young woman. During her relationship with the Respondent, the young woman had an ongoing relationship of a different kind with another member of the Collier County's Sheriff Department. Melissa Sue Watson was a confidential informer for Linda Leis, a narcotics investigator with the Vice-Intelligence-Narcotics Unit (VIN Unit). She assisted Ms. Leis in the arrest of several narcotics violators prior to her report that Respondent Parks had given her money and marijuana in exchange for sex. Ms. Watson gave the investigator the pipe used to smoke the marijuana. A field test confirmed that it had contained marijuana. The young woman was told to arrange an assignation with the Respondent so his actions could be documented and an arrest made if the allegations were well-founded. Pursuant to instructions from Ms. Leis, the woman placed a telephone call to the Respondent which was recorded by the sheriff's department. The Respondent was asked to join Ms. Watson at White's Motel after work. Ms. Watson requested that the Respondent bring money and marijuana because she needed funds and wanted "to get high." In response to her invitation, Respondent told Ms. Watson that he would meet her and that he had ten dollars she could have. However, he was unable to provide marijuana because he did not know where to get it. When she inquired as to where he got the marijuana in the pipe, he teased her by withholding the information. Eventually, after she prodded him for an answer, he agreed with her suggestion that he had grown the marijuana in order to stop the inquiry. He told her there was no more and closed the topic. In fact, the Respondent had not grown the marijuana. As mentioned previously, he confiscated it from his son. When the Respondent arrived at the hotel, members of the VIN Unit had already installed listening and recording devices in the room. They waited in the adjoining room to take pictures and make an arrest once it was determined that Respondent Parks had given Melissa Sue Watson money for sex. During the motel room conversations between Respondent and Ms. Watson, the Respondent expressed concern about Ms. Watson's failure to appear in court that morning on a new pending criminal charge. She feigned surprise about having been on the court docket and stressed her need for money. She teased the Respondent during their foreplay that she had something for him if he had the money he said he was bringing to her. Because the Respondent was expected home shortly, he handed Ms. Watson the money he brought to give to her when she asked to see it. Based upon their prior relationship and the contents of the recorded conversations, the giving of the money and the sexual activity between the parties were concurrent actions that were not connected to each other. They occurred at the same time because the parties were involved in a clandestine, adulterous affair that allowed them to see each other on an infrequent basis. Once the Respondent stripped down to his underwear in order to proceed further with the sex play, members of the VIN Unit entered the room and placed the Respondent under arrest. After he waived his right to receive the Miranda warning, the Respondent admitted to having had sex with Melissa Sue Watson in the past and having smoked marijuana with her that he had provided at her request.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of unlawfully, delivering less than twenty grams of cannabis to another person and of constructive possession as set forth in Paragraph 2(a) and 2(b) of the Administrative Complaint. That the Respondent be found not guilty of having engaged in prostitution with another person, as set forth in Paragraph 2(c) of the Administrative Complaint. That Respondent's certificate as a correctional officer be revoked. DONE and ENTERED this 12th day of June, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6766 Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #7. 4. Accepted. See HO #7. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #9. 8. Accepted. 9. Accepted. See HO #10. 10. Accepted. See HO #10. 11. Accepted. See HO #10. 12. Accepted. See HO #11. 13. Accepted. 14. Accepted. Rejected. Irrelevant. Accepted. See HO #12-#13. Rejected. Irrelevant. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #16. Rejected. Irrelevant. Accepted. Accepted. See HO #16. Rejected. Contrary to fact. See HO #14. Copies furnished to: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Al Beatty, Qualified Representative c/o Clyde W. Parks 5226 Jennings Street Naples, Florida 33962 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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 issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
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 pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
