The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/ Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI"). Incident Giving Rise to this Proceeding On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009). There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03. Evidence Adduced at the Final Hearing At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis. Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her. Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner. Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7). Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2013.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and issued certificate number 19-86-502-02, which he still holds. Respondent was employed by the Florida Department of Corrections (DOC) as a correctional officer from November 4, 1985, until August 3, 1988. He was initially assigned to the Dade Correctional Institution (DCI). On August 7, 1987, he was transferred to the South Florida Medical and Reception Center (SFMRC). He remained at SFMRC until April 3, 1988, the effective date of his resignation. On August 28, 1989, Respondent submitted to the DCI Personnel Department an application seeking reemployment as a correctional officer with DOC. As part of the application process, Respondent was required to submit to a drug test, which he did on September 29, 1990. Respondent had used cannabis on at least one occasion some time within a month or two prior to submitting to this test. Respondent personally appeared at the laboratory of Toxicology Testing Service in Miami on September 29, 1990. Once at the laboratory, he urinated into a small sterile sample container which was provided to him by Robert McCabe, a laboratory employee. Immediately after Respondent urinated into the container, he gave the container to McCabe. The container was then sealed with a lid and special tape designed to indicate tampering. McCabe assigned Respondent's urine sample the unique bar code number 410405 and the unique laboratory reference number 77334. He thereupon placed the container in a storage area in the laboratory. Later that same day, laboratory employee Yolanda Escobio retrieved the container from the storage area and, after observing that there was no evidence of tampering, broke the seal on the container. Using a sterile pipette, Escobio removed a small portion of urine from the container to conduct an initial immunoassay screening of the urine for the presence of a controlled substance or controlled substance metabolites. Following the completion of the screening, Escobio recapped the container (which contained the remainder of Respondent's urine sample) and returned it to the laboratory storage area. Neither McCabe, Escobio nor anyone else contaminated or tampered with Respondent's urine sample. The container was not reopened until October 2, 1989, when laboratory employee Israel Sanchez did so in order to perform additional laboratory testing of the sample. Sanchez utilized gas chromotography-mass spectrometry, an extremely reliable confirmatory testing method, to verify the results of the immunoassay screen previously performed by Escobio. Sanchez's testing revealed the presence of cannabinoids in a concentration of 120 nanograms per milliliter. Cannabinoids are metabolites that are produced when cannabis (marijuana) is introduced into the body. Cannabis is the only substance known to produce cannabinoids. Toxicology Testing Service sent a written report of the test results to Alexander Greene, the DCI Personnel Manager. Greene received the report on October 16, 1989. Respondent had already been rehired. He had started working for DOC again earlier that very same day. After learning that Respondent had tested positive for cannabinoids, Greene, accompanied by DCI's Assistant Superintendent, met with Respondent later that day. They advised Respondent of the test results and told him that if he did not resign his position, his employment would be involuntarily terminated. Respondent responded by simply indicating that he would resign. His resignation was effective 5:00 p.m. that day.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cannabis on or about September 29, 1989; and (2) revoking his certification, based on such a finding. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991. STUART M. LERNER 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 23rd day of April, 1991. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Paul Sack, Esquire 5975 Sunset Drive Suite 701 Miami, Florida 33143 Jeffrey Long, Director 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 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in administrative confinement, he did not receive any incentive gain time during that period. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months. In a prior period of administrative confinement, he claims he was not told why he was there officially. Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time, (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed. The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00 P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Henry A. Faircloth holds certificates as a correctional officer, No. 05-83-599-01, and as a law enforcement officer, No. 16-89-222-03, both issued by petitioner Criminal Justice Standards and Training Commission; and has held them at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of major. On May 25, 1988, he was in a meeting about ongoing construction at the prison, when Glenda Parmer told him he was needed in his office, elsewhere in the same building. She had seen James T. Watson and Charles W. Pumphrey, correctional officers who worked as sergeants at Holmes Correctional Institution, escorting Samuel Collier, an unruly and, as it turned out, intoxicated inmate toward the security complex. After Ms. Parmer, a correctional officer who worked as an administrative lieutenant, recounted events to Major Faircloth and told him "that we had some problems," (T.224) she accompanied him on the walk back toward his office. Before they reached the hall onto which Major Faircloth's office opened, they encountered the obstreperous inmate, his hands in handcuffs behind him, (T.234) a sergeant on either side. Although she came within three or four feet of the inmate, Ms. Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face, either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Major Faircloth, both sergeants and the inmate started down the hall and Ms. Parmer "stepped out of the way so they could go down the hallway." T.220. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector William T. Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Respondent Faircloth entered his office and closed the door. T.43. Messrs. Collier, Watson and Pumphrey had preceded him through the door into the office. From outside the office, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mailroom officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mailroom and flexed his right hand. When the mailroom officer inquired about his swollen knuckles, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to respondent Faircloth, then accompanied him as he went back into the office where the inmate and sergeants Pumphrey and Watson remained. At some point Lieutenant Benny Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed his view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice" (T.113), or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x- rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. The next day, Major Faircloth filed a written report, Petitioner's Exhibit No. 9, reciting that Sergeants Watson and Pumphrey and Lieutenant Chesnut had used force against Samuel Collier, but omitting any mention of the force he himself had used. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, he falsely denied under oath that he had hit Samuel Collier and injured his own hand. Petitioner's Exhibit No. 6. Inspector McLain had authority to administer the oath in the course of his official duties, and did so to respondent before interrogating him on June 28, 1988, and on July 6, 1988. On July 6, 1988, respondent again answered questions under oath and falsely answered affirmatively when asked whether he had been truthful during the earlier interrogation.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificates both as a correctional officer and as a law enforcement officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 4-15, 17, 18, 20, 21, 22, 24-30 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3 and 31 are immaterial as to respondent Faircloth. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times respondent hit Collier. Sergeant Sheppard saw respondent slap Collier only once. But the evidence clearly and convincingly showed that respondent landed additional blow(s), causing his knuckles to swell. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 11, 12, 14, 15, 22 and 23 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not clear that a fence was up and that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed findings of fact Nos. 6 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed finding of fact No. 10, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. With respect to respondent's proposed finding of fact No. 13, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed findings of fact Nos. 16 and 17, the nurse's findings were not "totally inconsistent." She apparently did not examine the inmate's teeth. Some of the swelling she anticipated evidently occurred. With respect to respondent's proposed finding of fact No. 18, Sheppard's testimony has been credited. With respect to respondent's proposed finding of fact No. 19, when Sheppard saw Faircloth slap Collier he might have been looking through the clear glass window. With respect to respondent's proposed finding of fact No. 20, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. Respondent's proposed finding of fact No. 24 is rejected as contrary to the weight of the evidence. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky 438 East Government Street Pensacola, Florida 32501 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and issued certificate number 19-82-502-08, which he still holds. For approximately the past eight years, Respondent has been employed by the Metro-Dade County Department of Corrections and Rehabilitation (Department). During the first six years of his employment with the Department, he held the position of Correctional Officer I. His duties as a Correctional Officer I included supervising crews of inmates performing lawn maintenance work on public grounds outside the correctional facility in which they were housed. One of Respondent's supervisors was Jerry Meese, the Director of the Department's Operations Division. On September 26, 1986, while returning to his office from a lunchtime excursion, Meese observed a Department truck used to transport inmate work crews parked outside a private residence. The truck's presence in the residential area aroused Meese's suspicion. He therefore stopped to investigate. He soon discovered that Respondent and some inmates were in the area. One of the inmates was found to have some chewing gum in his possession. The inmate told Meese that Respondent had given him money to purchase the gum at a nearby store. A short walking distance from where Meese had encountered the inmate was a bag containing seven containers of beer. The containers were cold to the touch. Meese went to the store to which the inmate had referred and spoke to the store clerk. The store clerk advised Meese that the inmate, a short time before, had bought the beer that Meese had found in the bag. Meese discussed the matter with Respondent. It appeared to Meese that Respondent's speech was slurred and that his eyes were red. Upon his return to the office, Meese was provided with statements from inmates supervised by Respondent in which the inmates indicated that they had drank beer and smoked marijuana with Respondent. Shortly thereafter Meese learned that the inmates had tested positive for drugs. The Department had a policy which required a correctional officer to submit to drug testing if there existed a reasonable suspicion that the officer was involved in the illicit use of drugs. Based upon what had occurred that afternoon, Meese justifiably believed that he had grounds to invoke this policy and he therefore directed Respondent to submit to a drug test. He gave Respondent until Monday, September 29, 1986, to take the test. On September 29, 1986, prior to submitting to the test, Respondent was interviewed by Robert Sobel, an investigator with the Department's Internal Affairs Unit. Respondent freely admitted to Sobel that he "smok[ed] marijuana on a regular basis" and that he "would like to enroll in a program to overcome this problem." Later that day, at 3:10 p.m., in compliance with Meese's directive, Respondent went to the Consulab facility at the Cedars Medical Center in Miami and gave a urine specimen. The sample was screened by the use of an enzyme immunoassay testing procedure. The screening test was performed twice. On both occasions, the sample tested presumptively positive for cocaine and marijuana. The sample was then subjected to confirmatory testing. The thin layer chromatography (TLC) method was used. When performed by a competent technologist, TLC testing is accurate 95 to 99 percent of the time. The two technologists who tested Respondent's urine sample using the TLC method were highly competent. Their tests, which were completed at about 4:50 p.m., revealed the presence of cocaine metabolites 1/ and cannabinoids (marijuana). 15. The tests were accurate. Respondent had knowingly used cocaine and marijuana on or about the date of the testing. Notwithstanding the results of the testing, Respondent was not terminated by the Department. Instead, he was suspended. As a condition of continued employment, he was required to participate in a drug rehabilitation program and to remain drug-free. Respondent has met these requirements to the satisfaction of the Department. Not only has Respondent remained in the employ of the Department, he how occupies the position of corporal, a supervisory position to which he was promoted approximately two years ago. His post-September, 1986, employment record reveals that he has taken full advantage of the opportunity given him by the Department to rehabilitate himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character" in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cocaine and marijuana on or about September 26, 1986; and (2) based upon such a finding, (a) suspend Respondent's certification for 30 days, (b) place Respondent on probation for a period of two years to commence upon the expiration of this 30-day suspension, and (c) include among the terms and conditions of his probation the requirements that Respondent submit to scheduled and monthly drug testing and that he agree to release the results of such testing to the Commission or its designee. DONE and ORDERED in Tallahassee, Leon County, Florida, this 30th day of May 1990. STUART M. LERNER 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 Administrative Hearings this 30th day of May 1990.
The Issue Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioner and the Intervenor are subject to the rules of the Respondent. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-3.0081, Florida Administrative Code. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption." Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code: (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows: What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows: Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.? Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing. . . . . In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made: The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved". The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved". The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter: The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution". The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . . The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee. The Notice of Proposed Rulemaking included the following "purpose and effect" clause: The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
