The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, 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 29th day of October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services 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
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on June 12, 2000, and was issued Correctional Certificate No. 191694. At times relevant to the inquiry, Respondent has been employed as a corrections officer at Bay Correctional Facility. On December 13, 2000, Wal-Mart operated a store on 23rd Street in Panama City, Florida. From that store Wal-Mart was engaged in retail sales. On December 13, 2000, Edith Hutchinson went alone to the Wal-Mart store on 23rd Street. Respondent knew that Edith Hutchinson was going to the Wal-Mart store. Edith Hutchinson and Colin Hutchinson are husband and wife. At the time Colin Hutchinson was Respondent's roommate. It was intended that the three persons named meet at Wal-Mart. Respondent and his roommate came to the store later. When Respondent and Colin Hutchinson arrived at Wal- Mart Edith Hutchinson was coming out of the store. She had purchased a computer which she put in her car. She then handed Colin Hutchinson the receipt for the purchase of the computer. Respondent knew the purpose of handing over the receipt was to allow Colin Hutchinson to return to the store and get another computer using the receipt as evidence of a fraudulent purchase. Colin Hutchinson had told Respondent that this was the intention while they were in the parking lot at Wal-Mart. Pursuant to the plan to obtain a second computer with the receipt evidencing the purchase of the first computer, Respondent and Colin Hutchinson entered the Wal-Mart store. Once inside the store Respondent and Colin Hutchinson went to the area where the computers were being sold and placed a second computer in a shopping buggy. They then proceeded to the lawn and garden center in the store with the intention to exit the store from that area. Colin Hutchinson gave Respondent the receipt evidencing the purchase of the first computer. Respondent had that receipt in his left back pocket when he arrived at the lawn and garden center with Colin Hutchinson and the second computer in the shopping buggy. Respondent took the receipt from his pocket. Respondent handed the receipt to a store employee, with the idea that this receipt would evidence purchase of the second computer, not the first computer. The Wal-Mart employee shown the receipt is referred to as a "people greeter." That individual accepted the receipt as being evidence of a purchase related to the second computer, when in fact Respondent and the Hutchinsons had never purchased the second computer by payment. The receipt had been shown at the last set of doors exiting the store. Respondent and Colin Hutchinson did not stop at any register in the Wal-Mart store to pay for the second computer, to include the register in the garden center. Instead the two passed the register in the garden center in route to the "people greeter." Respondent had not received a second receipt from any of the cashiers while in the store. The second computer which was not paid for had an approximate value of $798.00 at retail and was part of the stock of the Wal-Mart store. Respondent and Colin Hutchinson still had the second computer with them when they were stopped outside of the store beyond the second set of doors where the greeter had been posted. Respondent and Colin Hutchinson were stopped outside the store by a store security employee Terrance Cotton. When confronted, Respondent told Mr. Cotton that the intention was to pay for one computer and get another one with the receipt from the first purchase. Respondent also knew that the first computer had been purchased with a worthless check. Later money was put into the checking account for Edith Hutchinson and the payment for the first computer was completed. Before money had been placed in the account sufficient to cover the purchase of the first computer, that computer had been removed from Edith Hutchinson's car. Wal-Mart retrieved the second computer that was in the possession of Respondent and Colin Hutchinson when they exited the store. Respondent was arrested for grand theft by the Bay County Sheriff's Office involving the incident related to the second computer that he had removed from the Wal-Mart store without paying for it. After being advised of his Miranda rights he gave a statement that is essentially in keeping with the facts that have been previously found in this Recommended Order. Respondent was allowed to participate in a pretrial intervention program to address the criminal charge of grand theft. As a condition to participation he had to acknowledge responsibility for the theft. He successfully completed that program. As a consequence no criminal record exists concerning the grand theft charge. Beyond the incident Respondent has continued to work for Corrections Corporation of America at the Bay Correctional Facility and has been twice promoted. He is in good standing with his employer.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding the violation of the statutes and rule and revoking Respondent's correctional certificate. DONE AND ENTERED this 8th day of December, 2004, 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 8th day of December, 2004. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristopher A. Kline 1801 Minnesota Avenue Lynn Haven, Florida 32444 Michael Crews, 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
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the amended administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Ralph Rico Marshall, is a licensed teacher having been issued certificate number 497505 by the Department of Education. The certificate covers the areas of guidance counseling and industrial arts and technology education, and is valid through June 30, 1999. In this proceeding, petitioner, Frank T. Brogan, as Commissioner of Education, seeks to discipline respondent’s license on the grounds he allegedly violated state law and two rules. In an amended administrative complaint filed on March 21, 1996, petitioner has alleged generally that (a) after June 18, 1993, respondent failed to comply in various respects with the terms of his probation as set forth in a final order issued by the Education Practices Commission (EPC) on December 10, 1992, and (b) on December 1, 1995, respondent pled guilty to a charge of armed kidnapping, a felony. Respondent has denied these allegations and initiated this proceeding to contest the charges. The Felony Charge As to the charge that respondent has been convicted of a felony, the evidence shows that on December 1, 1995, respondent pled guilty to a charge of armed kidnapping and was sentenced to a term of five years in state prison with three years minimum mandatory. He is now incarcerated at a facility in Lake County, Florida. After being incarcerated, petitioner filed for post- conviction relief under Florida Rule of Criminal Procedure 3.850 claiming that his trial counsel was ineffective and that the minimum three-year sentence was illegal. The trial court denied his motion on April 11, 1996. In the case of Ralph Marshall v. State of Florida, 685 So.2d 63 (Fla. 1st DCA 1996), the court reversed the trial court’s order and held in relevant part as follows: The portions of the record attached to the trial court’s order denying relief do not conclusively show that appellant is entitled to no relief on these claims. Accordingly, we reverse and remand. If the trial court again determines that appellant is entitled to no relief, it shall attach to its order those portions of the record which conclusively establish that. Id. at 63. On remand, the trial court entered an order on February 21, 1997, again denying respondent’s post-conviction relief. On March 6, 1997, respondent filed a notice of appeal of that order with the Fourth District Court of Appeal. The matter is now pending before that court. Compliance With Terms of Probation In school year 1992-93, respondent was employed at Mattie Rutherford Alternative Education Center. After an administrative complaint was issued by petitioner, a settlement was reached by the parties. On December 10, 1992, the EPC entered its final order approving a settlement agreement with respondent, reprimanding him, and placing him on three years’ probation, or until December 10, 1995. Among other things, respondent agreed, as a condition of probation, to immediately contact the EPC upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of the Respondent’s performance, including but not limited to compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent by his immediate supervisor or by the school district; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation or assessment prepared by his supervisor within ten (10) days of its issuance; (and) satisfactorily perform his assigned duties in a competent, professional manner; In addition, paragraph 6 of the agreement provided that in the event that the Respondent fails to comply with any term or condition of this agreement, the Petitioner will be authorized to file an Administrative Complaint seeking further sanctions or revocation of the Respondent’s certificate, based upon violation of the terms of probation set forth herein. An alleged violation of the agreement forms the basis, in part, for the issuance of the amended administrative complaint. On January 19, 1993, the EPC sent respondent a letter specifying the conditions of probation enumerated in the order. On February 17, 1993, a second letter was sent by the EPC reminding him of these conditions. Therefore, there can be no doubt that respondent was aware of the probationary requirements imposed under the settlement agreement. Respondent timely filed his quarterly performance reports for the months of March and June 1993. While acknowledging that the reports had been timely filed, the EPC cautioned him that he needed improvement in the areas of classroom management and teacher-student relationships. In school year 1993-94, respondent was transferred to the pretrial detention center of the Grand Park Career Center where he served as a guidance counselor. Before his transfer, respondent was notified by letter dated July 23, 1993, that his next performance report would be due by September 10, 1993. He was also told in a telephone call with the EPC executive director on August 2, 1993, that he should “call if you are reassigned and have a different principal.” On February 14, 1994, respondent was advised by letter from the EPC that the first two reports of his performance during school year 1993-94 had been due on September 10 and December 10, 1993, but had not yet been filed. He was told to arrange for their submission by March 1, 1994. When the reports were still not filed by the latter part of May, the EPC’s executive director made inquiry with respondent’s former principal and learned for the first time that respondent had been transferred to Grand Park Career Center. She then contacted the principal of Grand Park Career Center, Dr. McDuffie, and asked that he forward a copy of respondent’s annual evalution. Until that time, Dr. McDuffie did not know that respondent was on probation or that performance reports were to be filed. By failing to advise the EPC of his new employer, and to file his performance reports on a timely basis, respondent violated the terms of his probation. He also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. In an undated letter sent to the EPC several months later, respondent stated that due to a “very busy (school) year,” he “forgot to get the necessary reports completed,” and this oversight “was not intentional.” This explanation, however, is not found to be credible or a valid excuse for his conduct. He also advised that he had been reassigned to the Fort Caroline Middle School for school year 1994-95. In school year 1994-95, respondent again failed to have his immediate supervisor, Patrick T. Ahern, file the quarterly performance reports. Notwithstanding this omission, in a letter to the EPC dated May 17, 1995, respondent asked if any reports for the year had been filed. He also represented that he had met with Ahern on January 5, 1995, regarding the need for such reports. At hearing, however, Ahern established that until he was contacted by the EPC at the end of the school year, and asked to provide a report, he was not aware of the fact that respondent was on probation or that quarterly performance reports were to be filed. By failing to file the required reports during the school year, respondent violated the terms of his probation. Respondent also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. No evidence was presented on the issue of whether respondent’s personal conduct has seriously reduced his effectiveness as a teacher. At hearing, respondent suggested that because his overall evaluations in school years 1993-94 and 1994-95 were satisfactory, he fulfilled the terms of his probation. However, the performance of his duties in a competent, professional manner was but one of several conditions imposed by the EPC. Respondent also suggested that he was required to notify the EPC of new job assignments only if he accepted a job outside of the Duval County School District. This interpretation, however, is not reasonable and is contrary to the written instructions given to him in the EPC’s letter dated January 19, 1993, and verbal instructions given to him on August 2, 1993, by the EPC executive director. Respondent further suggested that he was told by someone at EPC that an annual performance report would satisfy all reporting requirements. This assertion, however, is not supported by the evidence. Finally, as to his felony conviction, respondent contended that until his appeal is concluded, the EPC should not pursue this action. For the reasons given in the Conclusions of Law portion of this order, this contention is found to be without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Sections 231.28(1)(a), (c), and (i), Florida Statutes, and Rules 6B- 1.006(5)(a) and (o), Florida Administrative Code, and that his teaching certificate be permanently revoked.DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros, Esquire 131 North Gadsden Street Tallahassee, Florida 32301-1507 Reese Marshall, Esquire 214 Ashley Street Jacksonville, Florida 32202-3120 Michael H. Olenick, Esquire Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make." Mr. Wright did not look at the note then. He forgot about it and finished his work. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.
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 dismissing all charges against Steven S. Wright. RECOMMENDED this 10th day of June, 1991, at 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 10th day of June, 1991.
The Issue Whether Respondent, Cheraine D. Nelson (Respondent), failed to maintain good moral character required of correctional officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Background On September 15, 2015, Respondent was certified by the State of Florida, Criminal Justice Standards and Training Commission, as a correctional officer. Respondent’s Correction Certification number is 327096. Respondent is the state agency responsible for enforcing standards applicable to correctional officer certificates, pursuant to section 943.12 and chapter 120, Florida Statutes. The incident which provides the basis for the instant action occurred on February 10, 2017. At the time of the incident, Respondent was employed by Moore Haven Correctional Facility. Respondent is a military veteran, having served eight years of active duty with the United States Army. Respondent exited the military soon after the birth of her son, C.P., who is her only child. Respondent was 34 years of age and C.P. was seven years of age at the time of “the incident” that provides the basis for the instant action. Respondent is the custodial parent of C.P., and, at all times material to the instant matter, raised C.P. with minimal assistance from C.P.’s biological father. Respondent describes herself as a single parent. At all times material hereto, Respondent held Associate of Arts degrees in criminal justice and radiological science. Respondent testified that she is four classes shy of completing the requirements necessary to obtain a bachelor’s degree in criminal justice. Respondent, when the incident involving C.P. occurred, was employed as a correctional officer at the Moore Haven Correctional facility. Respondent was assigned to the morning shift, which began at 7:00 a.m. and ended at 7:00 p.m. Respondent would occasionally work mandatory overtime, which required her to extend her regular 12-hour shift by four hours. Respondent’s travel time to and from the correctional facility added an additional three hours to her work day. The Incident During the course of the 2016-2017 school year, C.P. regularly misbehaved while at school, and as a consequence thereof, Respondent had numerous discussions with school officials regarding appropriate strategies for minimizing the disruption to the learning environment resulting from C.P.’s behavior. It is fair to say that Respondent’s relationship with school officials was, at best, acrimonious, and that Respondent and C.P.’s teachers were frustrated with C.P.’s classroom behavior. On the morning of February 10, 2017, Respondent, prior to leaving for work, found in C.P.’s backpack a letter from his school advising that C.P. was again misbehaving in the classroom. It is inferred from the evidence that Respondent had no knowledge of the letter prior to discovering the same in C.P.’s backpack. According to Respondent, after reading the letter, she became upset at her son for again “getting in trouble at school,” and she “let [her] emotions take over.” While in this state of heightened emotional agitation, Respondent grabbed a belt and struck C.P. several times about his body. Respondent admits that on the morning of February 10, 2017, she struck C.P. five to seven times with a belt, and that her actions were excessive. Soon after striking C.P. with the belt, Respondent sent C.P. to school where officials noticed bruising over several areas of his body. Per protocol, school officials contacted child protective services, who in turn interviewed C.P. and photographed the bruises on his body. The photographs of C.P.’s injuries were received into evidence as Petitioner’s composite Exhibit 1, photographs 1 through 7. Photograph 1 depicts bruises to the left side of C.P.’s face and head.2/ Photographs 2 and 3 depict bruises to the inside forearm area of C.P.’s right arm. Photograph 4 shows, from a different angle, the bruises depicted in photograph 1. Photograph 5 depicts bruises to the inside area of C.P.’s right leg. Photograph 6 does not clearly identify the body part depicted, but the photograph does clearly depict the presence of a bruise. Photograph 7 depicts bruises to the lower thigh and upper calf area of the backside of C.P.’s right leg. The photographs depicting C.P.’s bruises capture all physical injuries sustained by C.P. as a result of Respondent’s actions on February 10, 2017. Respondent admits that the photographs accurately depict the injuries to C.P., which resulted from her striking C.P. with a belt. C.P. is a child of light complexion, and the bruises to his body, as reflected in the photographs, were, in most instances, easily discernable. Based on her conduct with respect to C.P., Respondent, on or about February 10, 2017, was arrested and charged with “child abuse without great harm” in violation of section 827.03, Florida Statutes (2016). Section 827.03(2)(c) provides that a person commits a third-degree felony when “knowingly or willfully abuse[ing] a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child.” It is undisputed that Respondent entered into, and successfully completed, a pretrial diversion program in lieu of prosecution. The Administrative Complaint alleges that “[o]n or about February 10, 2017, the Respondent, Cheraine D. Nelson, did unlawfully and intentionally inflict physical or mental injury upon C.P., a child under the age of eighteen, without causing great bodily harm, permanent disability, or permanent disgifurement [sic], to wit: struck the victim on his arms, legs, face, and head.” The evidence establishes that Respondent unlawfully and intentionally inflicted physical injury upon C.P. as alleged in paragraph 2 of the Administrative Complaint.3/ The Aftermath In reviewing the record, it reasonably appears as though Respondent was released from jail a few hours after she was arrested. As a consequence of Respondent’s actions, C.P. was sheltered with the Department of Children and Families (DCF), which, in turn, placed the child with a friend of Respondent’s. The day after Respondent was released from jail, it is undisputed that she enrolled in, and eventually completed, an on- line parenting class. In this regard, Respondent credibly testified as follows: A: Yes. Before I even –- when I was released from the jail the next – the day after, I took it upon myself to enroll into classes. Q: What kind of classes? A: I enrolled into a parenting class, because I felt like what I did was wrong and I knew like that something needed to be done to me as a parent. I’ve never been a parent, and at the time I think my son was like eight. And I called my mom and she’s like, “you need to figure this out, because you’ve been doing this by yourself.” So I went online and I just started looking at –- Googling things parents do to help them parent as single mothers. So I went to the David Lawrence Center and I enrolled into a parenting class. And I did that, I completed the class. As a result of her actions towards C.P., Respondent was required by DCF to enroll in an approved parenting and anger management class. Respondent successfully completed both classes. Respondent was also ordered to undergo psychological testing, which she did. C.P. was sheltered by DCF for a period of about two months. The undisputed evidence establishes that DCF allowed Respondent to have unsupervised visits with C.P. after one month, and returned C.P. to Respondent after two months. In explaining how this experience impacted her as a parent, Respondent credibly testified as follows: I did everything that I felt that I needed to do to fix my -- the situation I’m in. I have grown a lot from that. And that this whole situation has made me just a better person, as a mom, as a woman. And I look at things differently now when –- when it comes to my child, as far as when he –- if he’s having behavior issues or any type of issues, whether at home or at school, so I changed a lot of things. I don’t let the little things get me upset. I talk to my son a lot more, now that he’s older, and I just –- we do punishment differently. And I take a lot of things away from him rather than do what I did before.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law, and prospectively suspending Respondent’s correctional officer certification for a period of seven months. DONE AND ENTERED this 23rd day of May, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of May, 2019.
The Issue Whether the Petitioner abandoned his position or resigned from the Career Service System.
Findings Of Fact The Petitioner received an approved education leave of absence without pay from his Career Service position at Hendry Correctional Institution from August 29, 1986, until May 15, 1987. The purpose of the leave was to allow the Petitioner to obtain a master's degree in library science through a government sponsored, professional training grant program. As a condition of the grant program, the Petitioner agreed to return to Hendry Correctional Institution following the completion of his degree. The anticipated completion date was May 15, 1987. If there was no vacancy on staff at that time, the Petitioner agreed to accept employment first in another state correctional institution library in Florida. If no vacancies were located in state correctional institutions, the Department of State, Division of Library Information Services, would assist him in finding suitable employment in other Florida libraries. On May 5, 1987, and June 26, 1987, the personnel manager at Hendry Correctional Institution wrote to the Petitioner to inquire whether he intended to return to the institution. The Petitioner did not reply to the inquiries. On June 30, 1987, the personnel manager at another correctional institution in Florida wrote to the Petitioner and offered him employment as a Librarian II. The Petitioner counteroffered with a conditional acceptance of employment if he could begin work on September 1, 1987. The personnel manager wrote to the Petitioner to determine why the counteroffer was made. The Petitioner had no further contact with the institution. Upon completion of the master's degree course work, the Petitioner wrote to various persons involved in the grant administration and attempted to demand unilateral changes in the terms and conditions of the agreement which would inure to his benefit. All of these attempts to change the terms of the contract were unsuccessful. The Petitioner accepted employment in another state sometime between May 1987 and September 27, 1987, the date he wrote to Respondent about his new job. The letter was received by the Bureau of Personnel on October 15, 1987. In the same letter, the Petitioner acknowledged that he had breached the terms of the professional training grant program. He offered to repay the grant by making monthly installments of $50.00 toward the outstanding balance. On October 21, 1987, Hendry Correctional Institution sent the Petitioner a letter which stated he had been deemed to have abandoned his position at the institution and resigned from the Career Service system effective October 21, 1987.
The Issue Should Petitioner discipline Respondent for her acts as a correctional officer in association with an inmate?
Findings Of Fact In response to requests for admissions, Respondent admitted the following: The Respondent was certified by the Criminal Justice Standards and Training Commission on July 6, 1992, and was issued correctional number 94229. Between June 1 and July 31, 1994, the Respondent was employed as a Correctional Officer with the North Florida Reception Center. On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Inmate Dean Richardson. (D) On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Toyia Kelly. E) On March 6, 1996, Respondent resigned her position at North Florida Reception Center. Between June 1, 1994 and July 31, 1994, Inmate Dean Richardson was committed to the North Florida Reception Center as a permanent inmate. In that period Respondent came in contact with Mr. Richardson in her capacity as a correctional officer and his capacity as an inmate at North Florida Reception Center. Their contacts occurred while Respondent was on duty as a correctional officer. In a conversation that took place between Respondent and Mr. Richardson in a recreation room within the prison, Respondent told Mr. Richardson that she was "having a problem moving." Mr. Richardson responded by offering to give Respondent money. At first Respondent declined the offer. A week to two weeks later after Mr. Richardson "pushed the issue," Respondent agreed to accept the money. Mr. Richardson had approached Respondent about a dozen times before Respondent was willing to accept the money. Under the terms of their arrangement, Respondent gave Mr. Richardson a post office box address to send the money and a name at that address. The name was Toyia Kelly. In furtherance of the agreement between Mr. Richardson and the Respondent, Mr. Richardson caused a $200 draft from his inmate bank fund to be sent to Toyia Kelly on June 8, 1994, at the address Respondent had provided . After Mr. Richardson sent the $200, he asked Respondent if Respondent had received the money. She answered "no." This conversation took place within the institution where Mr. Richardson was housed. When Respondent told Mr. Richardson she did not receive the $200, Mr. Richardson told Respondent that he would send more money. Mr. Richardson did send more money, but this time he sent the money to a different post office box than before. Respondent had provided Mr. Richardson the new post office box address. On June 24, 1994, Mr. Richardson withdrew $150 by draft from his inmate bank fund and paid it to the order of Toyia Kelly at the new post office box address. Mr. Richardson did not confirm with Respondent whether Respondent had received this $150 that had been paid directly to Toyia Kelly. Of his own volition Mr. Richardson determined to send an additional $150 by a draft from his inmate bank fund. Again this was paid to the order of Toyia Kelly at the second post office box address that had been provided by Respondent. This draft was made on July 11, 1994. On this occasion Mr. Richardson asked Respondent if she had received the second $150 draft. In response Respondent nodded her head in the affirmative.
Recommendation Upon consideration the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which revokes Respondent's correctional certificate number 94299. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sandra Griffin 2852 Wayne Drive Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on April 1, 1986, and was issued Correctional Certificate No. 74816. At all times relevant to this inquiry, Respondent has been employed as a Corrections Sergeant at Baker Correctional Institution, a facility within the Florida Department of Corrections. Sometime in August 2003, a retirement party was held for Corrections Sergeant Deese. A number of corrections officers who worked at Baker Correctional Institution attended that party. Corrections Officer Lisa Thornton and Corrections Sergeant Michael Boykin were in attendance. Corrections Officer Patricia Jennings was also at the retirement party. Respondent was not in attendance at the party. On August 20, 2003, after the retirement party, Respondent engaged in a conversation at Baker Correctional Institution with Corrections Officer Jennings concerning the retirement party. Respondent made comments to Corrections Officer Jennings about Corrections Officer Thornton and Corrections Sergeant Boykin, concerning Thornton and Boykin and their conduct at the retirement party. Respondent told Corrections Officer Jennings on August 20, 2003, that he had received information about Thornton and Boykin from another source and he believed that information to be true and did not see any reason why he, the Respondent, should not say anything about it. In particular, Respondent told Corrections Officer Jennings he had heard that Thornton and Boykin, at the time of the Deese party, were in a room with the door locked to the room and that Boykin and Thornton were having "some type of a sexual relationship." Following the retirement party for Sergeant Deese, Respondent spoke to Corrections Officer Dennie Ledford while they were at Baker Correctional Institution. Respondent asked Ledford if she had gone to the party for Sergeant Deese. Ledford replied that she had not. Respondent then told Ledford that he, along with several others, were outside of the window of the Deese home and saw Corrections Officer Thornton and five men silhouetted in the window and she was giving them oral sex. At a time after the retirement party for Sergeant Deese, Respondent spoke to Corrections Officer Shillene Koessler. That conversation took place at the Baker Correctional Institution. Respondent walked up to Koessler and said "Officer Thornton is a whore." He then said "You know she slept with five guys that night of the party." This is taken to mean at the retirement party for Sergeant Deese. Corrections Sergeant Boykin had heard from other corrections officers at Baker Correctional Institution that Respondent had been talking about Boykin and Corrections Officer Thornton and what allegedly transpired at the party. Again, this is taken to mean at the Deese retirement party. As a consequence, on August 9, 2003, Corrections Sergeant Boykin approached Respondent and told Respondent that he didn't appreciate it (meaning remarks attributable to Respondent about Boykin and Thornton at the Deese party), and he wanted Respondent to stop making these remarks. In reply Respondent said, "I'll tell it how I want to tell and there is nothing you can do about it." In context, these remarks attributable to Respondent are found to relate to the circumstances at the Deese retirement party that Respondent claims took place between Corrections Officer Thornton and Corrections Sergeant Boykin. None of Respondent's comments about sexual impropriety by Corrections Officer Thornton or Sergeant Boykin are accepted as true on this record. Corrections Officer Thornton made a complaint to her employer, the Department of Corrections, about what she perceived to be ongoing problems with Respondent. One of her complaints concerned Respondent's spreading rumors that Thornton had oral sex with five officers at the Deese retirement party. The Department of Corrections assigned Senior Inspector Raleigh Sistrunk to investigate the complaint by Corrections Officer Thornton directed to Respondent. Inspector Sistrunk was assigned the case on August 20, 2003, as part of a internal affairs investigation. Beyond that date Inspector Sistrunk interviewed Respondent after placing him under oath. In the interview, on the subject of Corrections Officer Thornton and her conduct at the Deese party, Respondent denied making any derogatory or negative statements about Corrections Officer Thornton concerning the alleged incident. In the interview conducted by Inspector Sistrunk, he asked Respondent if Respondent had made any statements to Correction's staff members, to the effect that Corrections Officer Thornton gave five officers oral sex at Sergeant Deese's retirement party. In response, the Respondent tried to divert the question and denied being at the party. Inspector Sistrunk redirected the question and advised the Respondent that he was not asking about Respondent's attendance at the retirement party, instead Inspector Sistrunk was asking if Respondent made any statements to other staff members at Baker Correctional Institution, to the effect that Corrections Officer Thornton gave five officers oral sex at Sergeant Deese's retirement party. In reply, Respondent said, "No." To further clarify, Inspector Sistrunk asked Respondent if Respondent "Made anything close to the statement referring to Officer Thornton having sex with officers at Officer Deese's retirement." To this question Respondent replied, "No, I didn't." In the interview with Respondent, Inspector Sistrunk asked Respondent if he had referred to Corrections Officer Thornton as a "whore." The answer by Respondent was "No, I don't care what she is." In relation to the question concerning Respondent having ever referred to Corrections Officer Thornton as a whore, the question was asked again if Respondent had ever made that statement. In reply to Inspector Sistrunk, Respondent said, "No, I haven't."
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rule and suspending the Respondent's Correctional Certificate for 60 days. DONE AND ENTERED this 18th day of November, 2004, 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Walter Battles 172 West McIver Avenue Macclenney, Florida 32063 Michael Crews, Program Director Division of Criminal Justice Professionalism Services 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
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: The Petitioners are inmates incarcerated at Baker and Zephyrhills Correctional institutions. The proposed ruled, Rule 33-3.0055, entitled "Law Libraries," is intended to provide guidelines for the operation of institutional law libraries and the use of inmate law clerks by those incarcerated within the facility. Petitioners currently use and, in the future, will require the use of law library facilities. Petitioners law library needs require access to federal as well as state reference materials. The subject matter of the reference materials required runs the legal gamut: administrative, civil and criminal. Accordingly, they will be substantially affected by the implementation of the proposed rule by the Department. The challenged proposed rule is divided into five categories [the fifth category is erroneously numbered (4)]. Those categories are: general provisions; law library access; content of law libraries; inmate law clerks; and law library advisory council. The general provisions category of the proposed rule acknowledges that the Department is to provide adequate access to the courts and to legal materials for inmates in the custody of the Department. That section further instructs each institution with a law library to develop operating procedures regulating the operation of the law library. Thus, the rule delegates to the facility superintendents the responsibility of coordinating all operations related to the law libraries and of training personnel and inmate staff who are to carry out that operation. This section does not identify which institutions will have libraries. The second section of the proposed rule, law library access, directs the superintendent of an institution to establish library hours and schedules to permit each inmate "maximum access" to legal materials consistent with that facility's security. That section provides no guidelines or minimum criteria outlining what the Department deems adequate to provide such "maximum access." Subsection (b) states that inmates in administrative or disciplinary confinement need not be taken to the library if that would create a security or safety risk but does not provide sufficient guidelines for how the facility might arrange to have materials made available to such inmates. Frequently, inmates are unaware of what materials are needed for reference and are unaware of procedural rules related to their cases. Inmates relying on materials furnished by inexperienced law clerks have missed court deadlines, have filed inadequate documents, or have had to request extensions in order to comply with deadlines. The content of the law libraries is addressed in section (3) of the proposed rule. That section provides that institutions will have "major, minor, and starter collection" law libraries based upon their size, location, inmate need and mission. The proposed rule does not describe which institution will receive which collection nor does it explain how inmate need and mission relate to the location, size or content of a facility's library. Inmates incarcerated at Baker require access to federal and state reference materials. Whether the library at Baker will contain those materials in the future is unknown. Currently, inmates at Baker must request copies of cases not available at Baker from other institutions which may or may not have same. Delays in obtaining and copying reference materials inhibit inmates from timely filing court documents. The proposed rule provides that inmate law clerks shall be assigned to assist inmates in the research and use of legal materials. That section does not provide for minimum training of such clerks nor does it address how inmates are to be assisted when the "first-come, first-serve" basis is inadequate to meet court imposed or procedural deadlines. Moreover, the proposed rule does not address what training, if any, institution personnel will have in order to assist inmate law clerks to provide appropriate guidance. Previously, and at the time this proposed rule was promulgated, the operation of library programs at Baker and other institutions fell under the authority of the Correctional Education School Authority (CESA). Budget cuts within the CESA resulted in the elimination of a librarian position at the Baker facility. In order to keep the library open, a correction officer has been assigned to supervise the library. Consequently, the library facility is available during that individual's work shift. Chapter 91-281, Laws of Florida, amended Section 20.315, Florida Statutes, to authorize the Department to provide library services. Institutional Operating Procedures (IOP) govern the operation of the law library at Baker. Staffing and operation of the library is left to the discretion of the officer opening and closing the facility. The library at Baker is not subject to a minimum number of hours of operation. Law clerks at Baker have assisted inmates in administrative, disciplinary, or protective confinement when those inmates had a deadline provided such inmate could prove they had such deadline. Inmates are often unaware of procedural deadlines until such deadlines have passed. Both Mr. Cook and Mr. O'Brian requested clarifications from the Department's legal office regarding how the proposed rule would be implemented at Baker to resolve issues related to the operation of the law library but received no responses. Staff at Baker have had no legal training and are unfamiliar with how to conduct legal research. Consequently, inmates are left to their own resources and frequently use inmate law clerks who have become self-trained from working on their own cases. At Marion Correctional Institution (Marion) inmates are afforded additional services in connection with the law library. Access to typewriters and copy machines are available so that inmates may complete documents related to their cases. The law library at Marion receives requests each month from inmates at other facilities who are seeking legal assistance or copies of cases not available at their institutions. Like inmates in a confined status, inmates assigned to work camps do not have direct access to legal materials. Such inmates must request materials and legal assistance from adjacent facilities. In one instance, an inmate was required to file a grievance before access to legal materials was granted. Inmates who have requested legal reference materials from other correctional institutions have waited as long as six months to receive responses from a request. At Baker, inmates have had to forego educational opportunities in order to have access to the law library during its hours of operation when class schedules conflicted with law library hours. The Department has considered the proposed rule over a period of six to seven years since the litigation of the Hooks v. Wainwright decision began. Problems arise between inmates when law clerks show favoritism toward one inmate over another inmate. Thus, it is appropriate to devise a system to place all inmates on notice of how inmate law clerks are to prioritize their time and assistance.
