The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
The Issue The issues are whether Respondent discriminated against Petitioner based on a perceived disability and retaliated against her in violation of Section 760.10, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent at the Liberty Correctional Institution (LCI). She was hired as a Correctional Officer in LCI's Security Department effective December 21, 1990. In February 1991, Petitioner was counseled regarding her failure to report for duty or to notify the institution of an intended absence. On April 1, 1996, Petitioner's supervisor counseled her regarding her failure to report to work in a timely manner. Petitioner had been tardy to work three times in March 1996. On May 30, 2001, Respondent counseled Petitioner regarding her excessive absenteeism. Petitioner had five unscheduled absences. Respondent promoted Petitioner to Correctional Officer Sergeant effective November 1, 2001. In October 24, 2003, Respondent gave Petitioner an oral reprimand for abuse of sick leave. Petitioner had developed a pattern of absenteeism in conjunction with her regular days off. In December 2004, Respondent gave Petitioner a written reprimand. The reprimand was based on Petitioner's failure to follow oral and/or written instruction, continued absenteeism, and abuse of sick leave. On July 7, 2007, Petitioner sustained an on-the-job injury. The injury was diagnosed as carpel tunnel syndrome. Petitioner underwent surgery for this condition in December 2007. On or about April 8, 2008, Petitioner reached statutory Maximum Medical Improvement (MMI). Petitioner had a Permanent Impairment Rating (PIR) of six percent. On April 15, 2008, a functional capacity evaluation revealed that Petitioner was able to perform light work with lifting restrictions. The restrictions prevented Petitioner from performing the essential functions of a Correctional Officer. Pursuant to policy, Respondent immediately conducted a job search. At that time, a Clerk Typist Specialist position was available at LCI. Petitioner was qualified to perform that job. She submitted an application for the position on or about June 5, 2008. In a letter dated June 10, 2008, Respondent offered Petitioner the Clerk Typist Specialist position in LCI's Classification Department. On June 26, 2008, Petitioner signed an Acknowledgement, accepting a voluntary demotion from Correctional Officer Sergeant to Clerk Typist Specialist and stating that she agreed to perform the duties of the new position to the best of her ability. Petitioner returned the Acknowledgement to Respondent. At the same time, Petitioner questioned whether she would be able to perform the duties of a Clerk Typist Specialist due to her carpel tunnel condition. In a letter dated June 27, 2008, Respondent requested that Petitioner take an essential functions form to a July 8, 2008, doctor's appointment. Respondent wanted the physician to complete the essential functions form and return it to Respondent by July 18, 2008. The purpose of the evaluation was to determine whether Petitioner was able to perform as a Clerk Typist Specialist. On or about July 24, 2008, Petitioner advised Respondent that she was going to have a nerve conduction test on July 30, 2008. She advised Respondent that she would provide the results to Respondent as soon as possible. In a letter dated August 20, 2008, Respondent advised Petitioner that, pending the results of a pre-determination conference, Petitioner could be dismissed from her employment as a Correctional Officer effective September 11, 2008. Respondent proposed this action because Petitioner had not provided Respondent with a doctor's report regarding Petitioner's ability to perform the essential functions of a Clerk Typist Specialist. A pre-determination conference was held on August 27, 2008. In a letter dated September 12, 2008, Warden Douglas advised Petitioner that she would not be dismissed because she had provided medical documentation of her ability to perform the position of a Clerk Typist Specialist. Petitioner began working in that capacity on September 19, 2008. In December 2008, Petitioner sent an e-mail to Respondent's Secretary, Walt McNeil. In the e-mail, Petitioner complained that Respondent had not returned her to work as a Correctional Officer Sergeant after being medically cleared to work in that capacity. There is no persuasive evidence that Petitioner had been medically released to work as a Correctional Officer in December 2008. Additionally, there is no evidence that Petitioner had made a request or filed an application to return to work as a Correctional Officer at that time. Respondent subsequently requested Petitioner's doctor to provide an updated opinion regarding Petitioner's ability to work as a Correctional Officer. On or about January 15, 2009, Petitioner's doctor approved Petitioner's return to work as a Correctional Officer with no restrictions. In a memorandum dated February 9, 2009, Respondent advised Petitioner that she was medically cleared to work as a Correctional Officer but that she would need to apply for openings. The memorandum stated that Petitioner had to be reprocessed as a Correctional Officer, including having a drug test and physical examination. The February 9, 2009, memorandum also reminded Petitioner that she would be required to serve another probationary period if she received an appointment as a Correctional Officer. There is no promotion track between the Security Department and the Classification Department. Petitioner applied for four Correctional Officer positions between February and May 2009. Two of the applications were for positions located at LCI. The third application was for a position at Calhoun Correctional Institution (CCI). The fourth application was for a position at Franklin Correctional Institution (FCI). On February 10, 2009, Warden Chris Douglas at LCI declined to interview or rehire Petitioner as a Correctional Officer for position number 7002037. Warden Douglas made this decision based on Petitioner's previous and current employment history showing attendance problems. Petitioner's testimony that she never applied for this position is not persuasive. Petitioner's application for a Correctional Officer position at FCI was never completely processed. In a letter dated April 9, 2009, Respondent advised Petitioner that she needed to provide additional information to support her application for employment in position number 70039564 at FCI. Petitioner did not respond to the request because she decided that she did not want to commute to work so far from her home. On April 23, 2009, Petitioner received her Performance Planning and Evaluation. Her direct supervisor, Kim Davis, Respondent's Classification Sentence Specialist, rated Petitioner as performing "Above Expectation" in all applicable categories. On April 30, 2009, Petitioner requested Warden Douglas to let her complete her mandatory firearm training because her weapons qualification was about to expire. Warden Douglas promptly responded that she could be scheduled to take the next firearms class. Petitioner re-qualified with specified weapons on May 11, 2009. On May 28, 2009, Petitioner was interviewed for a position as a Correctional Officer at LCI. She gave correct and appropriate answers to all questions during the interview. Even so, Warden Douglas decided not to hire Petitioner due to her past and current attendance problems. Warden Adro Johnson did not give Petitioner an interview for Correctional Officer position number 70041507 at CCI. He made his decision in July 2009 based on information indicating that Petitioner was already employed at LCI. In July 2009, Respondent's supervisor counseled Petitioner regarding her attendance. She had been absent for four unscheduled absences in the past 90 days. She had missed approximately 40 work days or eight weeks of work during the 11 months she was in the position of Clerk Typist specialist. On August 3, 2009, Petitioner filed her initial complaint with FCHR. Ms. Davis was the person who trained Petitioner as a Clerk Typist Specialist. Petitioner's job included filing documents related to approval or disapproval of inmate visitation. The original documents were sent to the inmates. Respondent was supposed to file copies of the documents in the inmates' classification files. During the time that Petitioner worked as a Clerk Typist Specialist, Ms. Davis had to counsel Petitioner approximately ten times regarding the filing of the inmate visitation documents. Ms. Davis stressed the importance of Petitioner completing her work and filing the documents in a timely manner. Additionally, Ms. Davis noted that Petitioner occasionally failed to properly file the documents. Petitioner was trained to remove duplicate copies of documents from inmate files. Duplicate copies of documents could be shredded. Petitioner was not instructed to shred the inmate visitation documents. If the documents were not legible, another copy was supposed to be made, using the copy machine to darken the print. Willie Brown is one of the Assistant Wardens at LCI. His office was close to Petitioner's work area. Assistant Warden Brown occasionally counseled Petitioner regarding the need to file the papers on her desk. On August 18, 2009, Assistant Warden Brown observed a large amount of paperwork that Petitioner had not filed. Once again, Assistant Warden Brown told Petitioner that she needed to file on a timely basis. He explained that Petitioner could file on the schedule she developed, but that it might be necessary to file everyday. Later on August 18, 2009, Heather Barfield, a Correctional Sentence Specialist, observed Petitioner feeding a large amount of paper into a shredder, causing the shredder to jam. Ms. Barfield subsequently attempted to clear the shredder jam and noticed that the papers belonged in the inmates' files. Ms. Barfield reported her observations to Assistant Warden Brown and Cynthia Swier, the Classification Supervisor. Assistant Warden Brown confirmed that the partially shredded documents were legible and should have been filed. Ms. Davis was informed about the shredding incident when she returned to work the following day. Ms. Davis verified that the shredded documents had been legible and were not duplicates of documents in the inmates' files. The greater weight of the evidence indicates that Petitioner intentionally shredded the documents in order to clear her desk. Petitioner's testimony that she was shredding them because they were not legible is not credible and contrary to more persuasive evidence. On August 26, 2009, Respondent terminated Petitioner employment as a Clerk Typist Specialist. Because she was on probationary status, she had no appeal rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 11th day of May, 2010. COPIES FURNISHED: Gertrude Berrieum 5032 Martin Luther King Road Bristol, Florida 32321 Todd Evan Studley, Esquire 2601 Blair Stone Road Tallahassee, Florida 32399 Walter A. McNeil, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
Findings Of Fact From 1972-1985, Petitioner was employed by the City of Jacksonville at the Jacksonville Correctional Institution. The Jacksonville Correctional Institution was and is the City's facility for confinement of offenders sentenced to nonstate prison incarceration usually lasting less than a year. The facility housed approximately three hundred (300) male and one hundred (100) female inmates. Most inmates were assigned to work crews, either in or outside the institution. The Institution also provided training and educational programs. The City is an "employer" within the meaning of Sections 760.02 and 760.10, Florida Statutes. During the entire time, Petitioner was employed at the Institution, Petitioner functioned as a male and was known as William H. Smith. Petitioner is an "individual" within the meaning of Section 760.10, Florida Statutes. 1/ The majority of people in this world are of the opinion that humankind is divided into males and females. That viewpoint is incorrect. Put simply, there is a certain percentage of humankind that are a mixture of male and female characteristics. Sometimes the mixture consists of physical characteristics and sometimes the mixture consists of opposing physical, i.e. sexual, characteristics and mental, i.e. gender, characteristics. Transsexuality is the term of common parlance for the condition known to mental health professionals as gender dysphoria. Transsexuals essentially believe themselves to be opposite in gender to their anatomic characteristics and to have been born in the wrong body. Gender dysphoria is a persistent sense of discomfort and inappropriateness about one's anatomic sex accompanied by a persistent wish to be rid of one's genitals and to live as a member of the other sex. Transsexualism is often misunderstood by lay people. It is not homosexuality and it is not transvestism. Both homosexuals and transvestites are comfortable with the gender dictated by their physical bodies. A transsexual differs markedly from persons with homosexual or transvestite traits. Transsexualism is quite literally having the physical form of one sex and the mental form of the opposite sex. Little is understood of how such halflings result. This lack of insight into the phenomena is in part due to psychology's very poor understanding of how personality and self concepts are developed in human beings and how those traits interact with sexual orientation or sexual preference. However, it can be deduced that transsexualism is a result of a very fundamental or combination of fundamental physical and mental attributes. The desire of the transsexual to live and be recognized as the opposite sex begins at a young age. The desire is nonvolitional. The person so afflicted will progressively take steps to live in the opposite sex role on a full-time basis, often resulting in hormonal treatment and surgery to make the anatomy fit the mental form. The unaltered transsexual is a tormented person, beset with fundamental conflict and persistent rejection of self. Depending on the symptoms, transsexualism can result in a handicap. Petitioner, Belinda Joelle Smith, is a transsexual. In Petitioner's case, Petitioner physically had the male form but mentally was a female. Petitioner grew up in a career Navy family. Her father was a chief petty officer. The family moved frequently because her father was often transferred from place to place. Ms. Smith first began to realize that she was a transsexual when she was around four years old. Her earliest specific memory is of a fight with her sister over who would be the mommy in playing house. Smith thereafter continued to have feelings of femininity. In growing up, she felt uncomfortable with boys and was more comfortable with girls. She cross-dressed in female clothes when home alone. All during her youth she experienced considerable personal confusion. Around age eleven, she read a magazine article about transsexuality and discovered that there was a scientific basis for the feelings she was experiencing as a male child. The article discussed surgical gender reassignment. At that time, Petitioner realized that gender reassignment was what she needed and wanted. She dressed in her sister's clothes and went to her mother to explain her new awareness. When she approached her parents about what she had discovered about herself, the reaction was one of moral indignation and she was told never to talk about it again. There was some discussion about sending her to a psychiatrist. But nothing was done. Thereafter, she kept her transsexualism hidden to the best of her ability. However, the struggle to unify the physical and mental aspects of her character was tremendous. Additionally, the struggle to maintain the outward appearance of a normal male was tremendous. Upon discharge of Smith's father from the Navy, the family settled in Liberal, Missouri, a rural farm community. Petitioner attended high school in Liberal, graduating in 1966. While in high school, she felt guilty about her transsexual feelings and attempted to deny them by excelling at traditionally male endeavors. She competed actively in sports, lettering in basketball, baseball, and track. She felt constantly conflicted. Petitioner began to date a girl while in high school. Petitioner told the girl of Petitioner's transsexuality, and she permitted Petitioner to cross- dress with her. Upon graduation, they married. However, the marriage lasted less than a year. Smith could function sexually only as long as she imagined herself as female and her partner as male. Petitioner's transsexuality was the reason for the breakup of the marriage. Petitioner commenced college, but had to withdraw because her father died. She then enlisted in the Navy to support herself and to contribute to the support of her family. She remained in the Navy for three and a half (3 1/2) years, serving as a machinist mate on a destroyer. While in the Navy, Smith consulted a Navy psychiatrist about her transsexuality. The psychiatrist diagnosed her as transsexual and explained that she might eventually have to get sexual reassignment to achieve any real sense of adjustment. Smith was retained by the Navy despite the psychiatrist's diagnosis because she was not homosexual. Smith accordingly served out her full enlistment in the Navy and in 1970 or 1971 was honorably discharged. Around the time she was leaving the Navy, Smith reconciled with her wife. Upon Petitioner's discharge from the Navy, the couple settled in Jacksonville. During the marriage, Smith lived entirely as a male with episodes of cross-dressing. A son was born to the marriage. In 1972, Petitioner began working for the correctional authority in Jacksonville. During the time she was employed by the City, the Institution was overcrowded and understaffed. She began with the City as an entry level corrections officer. She was attracted to corrections work because, "It seemed like something that might help other people. You could serve the public and maybe help rehabilitate somebody, redirect their lives." Correctional officers are considered law enforcement personnel. Such law enforcement personnel work as part of a pari-military organization in which discipline, respect and cooperation are extremely important. Correctional officers are correctional officers twenty-four hours a day. They are accountable for their behavior during duty hours because poor behavior reflects on the individual officer and the officer's employment. However, there are some very real distinctions between law enforcement police officers and law enforcement correctional officers in their respective codes of ethics and the standards to which they are held when engaged in private conduct. See General Orders Manual, G.O. III-1. One such distinction is that police officers have a higher standard of conduct in their private lives than correctional officers. During the time relevant to Petitioner's complaint as well as currently, correctional officers wore unisex uniforms. Male and female officers had common restroom facilities. Both male and female officers patrolled all parts of the institution, including inmate bathing areas. Both male and female officers had direct contact with male and female prisoners. Petitioner advanced rapidly. She was a floor officer at a time floor officers had broad responsibilities. She then became the youngest officer ever to be put in charge of road crews. Smith was made a provisional sergeant by administrative appointment six (6) months prior to being able to take the sergeants exam. This involved being advanced over officers of much greater seniority. Upon passing the sergeants exam, Smith was made a permanent sergeant. While a sergeant, she was promoted to relief watch commander (substitute watch commander) at the City Jail. Smith was the only sergeant permitted to function as a relief watch commander. As watch commander, Petitioner's job was largely administrative, and she was basically in charge of internal operations for the institution during her watch. She worked out of an office designated for the watch commanders. She spent most of her time doing evaluations, preparing reports, making assignments, working up leave schedules, holding musters, and inspecting calls. Most of her work was paperwork. She occasionally sat on disciplinary boards and participated in disciplinary hearings. Little inmate contact was required, but did occur. She supervised approximately thirty-five (35) employees. The employees included both males and females. Eventually, Petitioner was made a provisional lieutenant by administrative appointment. Again, the appointment was prior to taking the requisite examination. Once again, she was jumped over officers of much more seniority. When she took the examination, she had the highest score of those tested and was promoted to permanent lieutenant. She continued her watch commander duties, but as a watch supervisor instead of relief watch commander. Smith regularly received excellent performance evaluations. These evaluations included outstanding ratings for interactions with other people due to her knack for relating well with both coemployees and inmates. She was good at her job and was promoted more rapidly than other correctional officers. The evidence demonstrated that inmates are unpredictable as a group and that the ability of any person to gain respect and cooperation from them is a subtle quality often found in unlikely people. However, Petitioner through fourteen years of exemplary service demonstrated that she had such an ability. Ms. Smith felt her rapport with inmates resulted from "the fact that I treated them with respect as an equal and left them room to express their feelings, and just generally my conduct towards them was reflected in their conduct towards me." After nine years of unhappy marriage, Smith and her wife separated around 1980 or 1981 and eventually divorced. Petitioner's wife retained custody of their son. After separation and divorce, Smith lived as a male in public and as a female at home. However, sometime after the divorce, the boy's mother was unable to control him, and it became necessary for Petitioner to take custody of their son. Smith therefore reverted to living full-time as a male. Petitioner retained custody of her son and lived as a male until the son was approximately sixteen (16) years old. At that time, in 1984 or 1985, the son's behavioral problems had been straightened out, and he went back into residence with his mother. With the passage of years and the enforced male living, Smith found it increasingly difficult to deny her femaleness. She felt intense stress and internal conflict. She began to drink heavily. She developed a severe bleeding ulcer. Both of these problems progressively worsened. She was began to undergo a major depression and began to consider suicide. Clearly, by 1984 or 1985, Petitioner was experiencing impairment of at least two significant life functions, i.e. health and life. The impairment was directly due to her handicap of transsexualism. The impairment of those life functions causes Petitioner's handicap to fall within the definition of handicap developed under Chapter 760, Florida Statutes. By July, 1985, Smith was feeling greater and greater stress. On July 8, while on vacation, she went out in the middle of the night to a very private, unpopulated, nearby beach wearing a woman's wig, makeup, a woman's burgundy French-cut bikini bathing suit with false breasts, a pink ladies' beach coat, and pink ladies' sandals. She was dressed this way as a manifestation of her transsexuality. While out, Smith had a flat tire. A passing patrolman stopped to help with the tire. Initially, Petitioner identified herself as Barbara Joe Smith. The officer who stopped to assist Smith ran Smith's tag and discovered that Smith's true name was William, not Barbara Joe. The officer filed a general offense report of the encounter with the City. Once the report was filed, copies of this report were immediately circulated throughout the jail in sufficient quantity to "paper the walls." Smith became aware of the publication of the events of July 8, 1985. Smith did not participate or promote the circulation of the offense report and it was only the City's actions which caused the incident to become public. The next time Smith was to report to work after her encounter with the police officer, Smith was experiencing problems with her bleeding ulcer and called in sick. By that time Smith's encounter with the patrol officer had reached her superiors and Smith was summoned for a conference with the Director of Corrections and the Director of Police Services. On July 12, 1985, while still on sick leave, Petitioner at then-Director and now Sheriff, James McMillan's request visited McMillan's office to discuss the July 8 incident. The Directors wanted Smith's explanation of the incident. Smith explained that she was transsexual and that the event had been a manifestation of her transsexuality. The Directors asked Smith if she would be willing to accept counseling, but Smith explained to them that counseling would not "cure" her and that the only effective treatment would be sexual reassignment. Smith told McMillan that she was going to go ahead and pursue a sex change operation and would live as a female , including dressing as a female, for one year prior to the operation. The Directors thereupon decided that Smith could not be retained and the City's course of action would be to terminate her. They tried to persuade Smith to resign. The City's testimony is that Smith in fact agreed to resign because of concerns about the way other people would react to her. Smith denies agreeing to resign. She was, however, sympathetic to the reaction of her coworkers and in that vain indicated she would be agreeable to resigning if certain conditions could be met. These conditions were not met. Whatever may have been the perceptions of the parties, it is clear that Petitioner ultimately refused to resign, and she resisted termination. Smith's eventual termination can only be considered involuntary since she sought to remain employed and was denied the right to do so. Smith acknowledges that there would have been problems from continuing in her employment. She expected some finger pointing, name calling, and giggling from a few people. But she felt she could deal with that. The evidence did not demonstrate that any problem would have arisen from Petitioner's continued employment which would have been either dangerous or insurmountable. The City operates its civil service under a system of progressive discipline. See General Order Manual, G.O. II-4. In essence, an officer generally will not be terminated for any single incident. Termination would generally occur only after a series of reprimands and/or suspensions. Misconduct was classified as follows: Serious misconduct involves criminal violations of the law or actions on the part of the employee which warrant a detailed investigation by the Internal Affairs Unit and which could lead to suspension, demotion or termination of the employee. Examples are: commission of a crime, immoral conduct, corruption, malfeasance in office, official misconduct, D.U.I., violation of the civil rights of another, and excessive use of force. Minor misconduct is that which does not require detailed, formal investigation by the Internal Affairs Unit but may warrant informal counseling by one's supervisor, remedial training or minor disciplinary action. It is usually handled by the employee's supervisor and resolved at or below the division level. The events of July 8 did not result in an internal affairs investigation or a violation of law. On July 19, 1985, the Sheriff served Smith with a "Notice of Proposed Immediate Suspension Without Pay With a Dismissal to Follow." The Notice outlined the charges against Petitioner as follows: CHARGE I Violation of Civil Service Rule 10.06(1), which reads as follows: 10.06(1): Cause shall include, but is not limited to. . . . inefficiency or inability to perform assigned duties . . . conduct unbecoming a public employee which would affect the employee's ability to perform the duties and responsibilities of the employee's job . . . . CHARGE II Violation of Civil Service Rule 561.01(1)(a), which reads as follows: 10.06(1)(a): The employee has violated any lawful official regulation or order or failed to obey any proper direction made and given by a superior officer. and 10.06(4)(a)(5): The retention of the employee would be detrimental to the interests of the City Government." This was the first time Petitioner had been charged with conduct unbecoming an officer and was the first offense on Smith's record which could be used against her in determining any punishment. The City's disciplinary guidelines recommended that an officer receive a written reprimand for the first offense of conduct unbecoming an officer. However, the Sheriff and City did not follow the guidelines since they considered transsexuality and its treatment prohibitive of Petitioner's continued employment. Following her receipt of this Notice, Smith requested a hearing before the Jacksonville Civil Service Board (Board). The hearing was held on October 8, 1985. Petitioner was present and was represented by counsel. Several coemployees testified on behalf of Smith at the civil service hearing. No employees testified in support of the City's position that they could no longer work with Smith and had lost respect for Smith. In fact, at the administrative hearing in this case, Sheriff McMillan acknowledged that he did not expect all of Smith's coemployees to be adverse to her. He said that he had not himself lost respect for Smith and that he could have continued to maintain a satisfactory working relationship with her. The Sheriff also testified that Sheriff's office employees are carefully screened for adaptability and flexibility. The Sheriff had no reason to suppose that his compassion and humanity were greater than that of other department employees. The fact that coemployees came forward to testify for Smith before the Civil Service Board tends to confirm the Sheriff's statements about Smith's coemployees. The Board determined by a vote of four to one that the evidence at the hearing conclusively showed Smith had engaged in conduct unbecoming a public employee. Based on its findings of fact, the Board upheld the Sheriff's decision to dismiss Smith. The evidence did not support any dismissal based on Smith taking sick leave after the incident occurred. Her illness at that time was genuine. The City's entire basis for terminating Smith was supposition that as a known transsexual she would not be able to command the respect of coemployees and inmates and would generally discredit the City. Sheriff James E. McMillan (who had been the Director of Police Services at the time of Smith's termination and had subsequently become Sheriff) testified: "Q: But you didn't think that by virtue of transsexuality there had been any diminution or impairment of Lieutenant Smith's faculties, did you? A: No. "Q: So, as I understand it. Lieutenant Smith wasn't terminated because he was illegal or bad or immoral in and of itself? A: That's correct. "Q: It was entirely because of your concerns about the reactions of other people? A: That's correct, and his ability . . . not to his own doing . . . to be able to carry out his duties because of those." The City concedes that Smith's transsexuality involved no illegality or immorality. There is no contention that she ever conducted herself inappropriately in connection with her employment or on City time. There is no suggestion that she ever sought to exploit or publicize her employment with the Sheriff while cross-dressing. The City does not contend that she ever engaged in homosexual conduct or entertained any homosexual ideas. Importantly, at the time of Smith's termination in 1985, nothing had changed in Petitioner's abilities to perform her job. This was the same transsexual person who had rendered exemplary service for the past 14 years. No reasonable accommodation of Petitioner's handicap was explored or attempted by the City. Given, the Sheriff's testimony regarding his ability to accept Petitioner, the screening undergone by correctional officers, the fact that coemployees stepped forward on behalf of Smith and Smith's experience in other jobs after her termination demonstrate that the City's apprehensions were unjustified and were not concerns which could not be reasonably accommodated as was done with female correctional officers and black correctional officers when those groups entered the correctional work force. The evidence showed that inmate reaction to a transsexual is a "big unknown" and that a known male correctional officer holding himself out as a woman within the confines of a correctional facility may theoretically be disruptive and may theoretically be adverse to the best interest of the agency. However, there was no evidence which indicated that any inmates were aware of the July 8 incident or were cognizant of Petitioner's transsexuality. Additionally, the evidence demonstrated that an inmate's ability to discern a transsexual who is cross-dressing while at work may be difficult since correctional officers wear the same uniform and have strict rules regarding their appearance. See General Orders Manual, G.O. III-9. No evidence was submitted as to what changes would have occurred in Petitioner's appearance had she been allowed to be female at work. 2/ Moreover, all of the theoretical problems which may or may not occur could have been reasonably accommodated by restricting any overt appearance of Petitioner while at work. Finally, the City had extensive general orders and personnel rules and regulations requiring that employees be respectful and courteous toward one another and forbidding disrespectful, mutinous, insolent, or abusive language towards a supervisory employee or any other employee. It also had prohibitions against speaking disparagingly about any coemployees or defaming or demeaning the nationality, creed, race, or sex of any person. Various punishments or administrative actions were prescribed for violations of these orders. Such respective behavior was demanded toward black and female correctional officers. The evidence did not demonstrate any legitimate reason for not demanding such behavior toward Petitioner. After termination, Smith worked at a series of jobs. In almost each instance, her employers knew of her transsexuality and the fact that she was cross-dressing at work. Her experience at those jobs was basically what she had predicted she would have encountered if she had continued with the Sheriff's Office -- that is, initial snickering and then general acceptance. For example, she worked as part of a clean up crew at a construction site at which there were approximately (300) construction workers. Smith testified that at first she was subjected to some taunts and name calling, but that this shortly subsided. By the end of the construction site job, she had achieved general acceptance and had received apologies from various of the taunters. In most of her post- termination jobs, Smith successfully oversaw and supervised other workers. The only exception to Petitioner's successful employment occurred when she was employed by Walmart as a sales manager. Apparently, the Walmart had segregated male and female restroom facilities and there was great concern over which restroom Petitioner would use. Lost income calculated from July, 1985, until April 13, 1989, when Smith requested a continuance in this cause, was $99,070. Lost income from July, 1985, through February, 1991 was $136,435.00. (These calculations include a 20% wage differential and set-off for Petitioner's earnings). Since all the parties at one time or another requested continuances in this case, Respondent is not entitled to a set-off for the period of time after Smith's continuance of April 13, 1989. Both parties delayed the action at a time when the other party was ready to proceed. Moreover, Respondent is entitled to a set-off for any earnings of Petitioner after the April 13 continuance. Therefore, Petitioner is entitled to $136,435.00. in back pay through the end of February, 1991, plus any additions through reinstatement, less deductions for any earnings of Petitioner during this time. Smith ultimately was accepted into a gender reassignment program. As part of that program, she was required to live as a female for a two (2) year adjustment and demonstration period. She successfully accomplished the adjustment. In 1990, she underwent her gender reassignment surgery. Since then, she has been living entirely as a female and has been judicially determined to be a female. Since the gender reassignment surgery, Petitioner is now doing well. She feels much more at peace with herself and much happier than when she was a male. She has quit drinking altogether and no longer suffers from stomach ulcers. She no longer thinks about suicide. She has received acceptance by her brothers and sisters, and also by her son. She is working successfully as a salesperson for a retail tile company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a Final Order reinstating Petitioner, awarding back pay and attorneys' fees and costs and reserving jurisdiction should the parties fail to agree on appropriate reinstatement, back pay and attorney's fees and costs. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.
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
Findings Of Fact Petitioners, Douglas Lavern Adams, Edwin Paul, Stanley Blanding, Carl B. Cribbs, Efron Yero, and James M. Cook are all incarcerated in the State of Florida at Respondent's facility, the Union Correctional Institution located at Raiford, Florida. On November 15, 1984, the Department of Corrections forwarded to the Bureau of the Administrative Code for publishing in the next available issue of the Florida Administrative Weekly, its proposed Rule 33-5. The proposed rule in question was published in Volume 10, No. 46 on November 21, 1984. The stated purpose and effect of the proposed rule was to clarify and revise policies and procedures relating to visitation with inmates. The proposed rule purported to make certain changes to pre-existing Rule 33-5 as outlined in the proposal which, among other things, allowed superintendents to make exceptions to any provision of this rule on an individual case by case basis, based on the best interests of the inmate, the security and welfare of the department, or both with the qualification that the exception could not be more restrictive than the provisions of the rules and with the further requirement that all visiting policies promulgated by the superintendent shall be subject to approval by the Secretary of the department. Petitioners contend that the proposed changes severely limit their prior existing visiting rights. Specifically, Petitioners' contentions include: Rule 33-5.01 is without legislative authority in that the Secretary has no authority from the legislature to delegate policy making authority to superintendents; Rule 33-5.04 is an invalid rule for the same reason and because it deprives hospital inmates of family visits in an arbitrary and capricious manner, without a valid penological objective, and in violation of both equal protection clauses of the State and Federal Constitutions and is fatally vague and invalid in that by stating, "any other special status" it fails to specify what status prisoners will be prohibited from visitation; Rule 33-5.07(5) constitutes an invalid delegation of legislative authority to an employee; Rule 33-5.08(2) is arbitrary, capricious, and without any known penological objective, constitutes an abuse of discretion, and is unreasonable in that it is without a rational basis for the potential reduction of visiting days; Rule 33-5.08(3) is discriminatory on its face, is fatally vague, and insufficient in specificity to inform Petitioners what circumstances will be considered; Rule 33-5.08(4) is without a rational basis in fact and is fatally vague; Rule 33-5.10(c) is an unconstitutional rule in that by authorizing unwarranted searches and invasions of privacy of visitors, this would discourage visitation and thereby deprive Petitioners of visits; Rule 33-5.08(12)(c) is fatally vague and overbroad and discriminates against female visitors in an arbitrary and capricious manner by permitting their exclusion if they are "not appropriately clothed or are dressed in revealing attire . . . and other like attire"; Rule 33-5.08(14) and (15) constitute an abuse of discretion and are discriminatory in an arbitrary and capricious manner in that they refer without defining or explaining "security" reasons for allowing non-contact visits; (j) Rule 33-5.04 and 33-5.08(2) render the proposed rule ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied on a just and rational basis; (k) that Respondent has failed to provide adequate notice of the proposed rule to those inmates in administrative, disciplinary, and close management status. The proposed changes to the rules came about after Respondent conducted a survey of the existing visitation policies of all institutions within its system. This review indicated a need for a statewide set of standards for visitations while at the same time allowing the superintendents of the various institutions the flexibility to tailor standards at the individual institutions to local needs and the special needs of the inmates. The survey showed a need for some flexibility within the rules to accommodate the uniqueness of the individual facilities and the special needs inherent therein while at the same time addressing the overall needs constant throughout the system such as security, inmate health and welfare, and safety of both staff and inmate population. Primary among the concerns considered by the Department was the security aspect. The need to control contraband and to maintain order and discipline within the confines of any given facility is obvious. Without question a valid concern of the staff is the ability to control who and what goes into the facility. The superintendent has the inherent power to interdict the introduction of drugs, alcohol, weapons and similar contraband into a facility. He or she also has the responsibility to insure against the potential for disturbance caused by obviously inappropriate clothing worn by staff visitors to a sexually segregated institution. James M. Cook is an inmate at the Union Correctional Institution who has received special visits of the type to be governed under proposed Rule 33- 5.04 in the past. On those occasions he had to establish for his proposed visitor the classification the visitor would fall under, such as distance from the facility travel led or other criteria. In his opinion the proposed rule is somewhat vague. He contends it does not give specifics as to mileage, clothing to be worn, etc., in detail adequate for the proposed visitor to know what is required. He understands from a conversation with his classification officer that the distance requirement to be applied under the new rule is 400 miles but this criteria is not specifically stated in the proposed rule nor can it be determined from reading the rule. As to female visitors, he contends that that portion of the proposed rule which provides for appropriate clothing is insufficient in detail to insure the visitors will be properly dressed for the visit. It has been his experience in the past that if a female visitor is improperly dressed, as determined by the institution's personnel, the guards require her to wear a shapeless smock. Under the terms of the new rule, Cook said, he is required to inform his visitor what can and cannot be worn, but because the rule is devoid of detail, it is difficult for him to do this. Proposed Rule 33-5.06(3) does not, as Cook asserts, require the inmate to inform the visitor in detail of the particulars of the visiting program only the basics, such as hours, days, and, to be sure, the need for non-provocative apparel. The question on the distance requirements for special visits is also of concern to inmate Cribbs whose mother lives in Tampa, a 350 mile round trip from this facility. Cribbs contends the proposed-rule has no specifics in it as to mileage for special visitors. In the past, his mother, coming from Tampa, has been able to visit on both Saturday and Sunday and because of the distance, has made a two day visit out of the trip. The new rule, according to Cribbs, leaves everything up to the superintendent regarding visiting privileges and depending upon the determination of that officer, his mother may be forced to come this long distance to see him only on one day of the weekend. Under the current policy, inmates are allowed visitors on both Saturday and Sunday and the new rule, he feels, will change this benefit to allow visits normally only once per weekend. Cribbs is also concerned about the dress requirements of the new rule. He is concerned with the term "like attire" which he feels makes it difficult for him to tell his female visitors what to wear. Petitioner, Stanley Blending, has also had visitors on both days of the weekend in the past. He had a need for this benefit because his grandmother came from Canada for a visit once a year and, in addition, his son comes up to visit from time to time and the two day visit is required for him to talk with the young man regarding family problems. At UCI he currently gets two days of visits and, in his opinion, these two day visits have had a beneficial, rehabilitative effect. As in the case of Cribbs, Blanding's family comes from Tampa and that distance makes it necessary for them to have a two day visit. He is concerned and believes that the proposed rule will limit visits to one day per weekend which, in his opinion, would severely limit the amount of visitation he would receive. He is also concerned, about the proposed rule regarding appropriate dress for female visitors. The proposed rule says nothing about the institution providing a smock for inappropriately dressed females as has been done in the past. Combining the two changes, if his visits were reduced to one day or his female visitors were barred because of "improper" clothing, either situation would have an adverse effect on him. The current rule does not provide what is appropriate clothing and under the terms of the new rule, he would have a difficult time explaining to his female visitors what "appropriate" clothing is. Inmate Yero was in disciplinary confinement in December, 1984 and then placed under investigation. While he was in that status from October 26, 1984 through early January, 1985, he did not get to see nor did he ever receive notice of the proposed rule. Prior to October, 1984, he was allowed visitors from one to two hours. This was the rule for prisoner in disciplinary confinement. The new rule would allow the superintendent to restrict visitors to prisoners in Yero's status. The new rule adds the word "infirmaries" to the list of special status inmates. He signed the Petition herein with only limited knowledge of its contents. Inmate Paul is presently a hospital inmate and has been intermittently since 1982. He is housed in the hospital because of a disability which confines him to a wheel chair not because of any contagious or infectious disease. He understands the new rule to state that since he is in the hospital, he could be denied visitors even though he is not a patient but a special housing prisoner who is considered to be a regular inmate. He was advised that when his sister from New York called to arrange a visit with him, she was told that because he was in the hospital, he could have only a one hour visit with her. The new rule could prohibit him from having visitors at all, he says, and leaves too much discretion with the superintendent. The one hour rule which applies to inmates in the hospital has had an adverse effect on him since he has been deprived of visits from his sister. He and his sister are orphans, he says, who have just been recently reunited after a long separation. He contends that the new rule puts too much control in the hands of the superintendent. It is too vague and gives the superintendent authorization to make decisions which he should not have. The propriety of placing control, the right to make decisions, and discretion in the hands of the superintendent is clear. Without question, the superintendent is the individual most qualified to make those decisions and to exercise those functions. Adams' mother is old. Because of this and because she cannot walk far, the past changes in parking and entry procedures have cut down on her visits to him. Because of this, he is not likely to be affected by the potential for a change to one day visits. However, as to the dress rule, he would have difficulty in telling his family what they could or could not wear based on the descriptions or lack thereof in the proposed rule. During the four years he has been in confinement, he has found it difficult to know or determine who is going to do what at any given time. His mother has told him that she would like to visit him but doesn't want to go through all the difficulties she has to encounter when she does visit. She states to him that the metal in her bra sets off the metal detector utilized to screen visitors and as a result, she wears a tank top on her visits which would be prohibited by the new rules. He considers this to be deleterious to him and his welfare and he contends that the new rule will destroy any uniformity among the 79 or so different facilities within the DOC. There is no evidence that the sole alternative to a metal braced bra is a tank top. Numerous other modes of dress are available to women of all ages, sizes, and shapes. According to Harry Singletary, Assistant Secretary of the Department of Corrections, the Department is presently reviewing all rules and policy and procedure directives in an effort to do away with the latter and make all controlling directives for the Department in the form of Rules. The intent is to promulgate standards for statewide application to meet the needs of the families of the inmates, the inmates, and the institutions. Mr. Singletary contends that the majority of changes set out in the proposed rules make them more liberal for the inmate or increase security for the institution. Both of these goals are worthy and supportable. It was the intent of the drafters of the rule to standardize procedures so that visitation would be made easier and safer and to increase uniformity among the institutions so that prisoners moving from one institution to another could know what to expect. It is the Department's position that a rule should not create surprises for the inmates and should liberalize and simplify procedures for them as much as possible. As to proposed Rule 33-5.01, the reason for the new language was to give the Superintendent the discretion to provide more visitation for the inmates and their families and to deal with special needs of the inmates or the institution. The change here is to liberalize - not penalize. The terms of the proposed rule provide that Superintendents' interpretations cannot be more strict than the terms of the rule and it in essence legitimizes superintendents being more liberal than the rule calls for. Based on the population and size of the UCI visitor park, notwithstanding the concerns of Mr. Adams that the Legislature and recent court decisions will have the effect of significantly reducing the population at UCI, there should he no change in visitor policy as it exists now at this institution. As a matter of fact, if the population decreases, there would be less pressure or reason to reduce the visit days for each inmate to make more time available for others. The fact that some language is less than specific (i.e., 6 hours instead of 9 am to 3 pm) reflects an intention on the part of the drafters to give the superintendent latitude to tailor local policy to the needs of the inmates and his institution. It is recognized that there may be some abuses by superintendents, but if this should occur, it would be the exception rather than the rule and there are adequate remedies existing in the DOC rules through grievance procedures to rectify any such abuse. With regard to proposed Rule 33-5.04, dealing with special status inmates, the change here proposed adds only the word "infirmaries." The existing rule was changed only to describe all types of facilities. The rule originally was designed to prevent the spread of disease incident to the closeness of prison populations. However, it is Mr. Singletary's confirmed opinion that ambulatory or non-infectious patient- inmates, such as Mr. Paul, one of the Petitioners here, would be allowed visitors in the visitor park the same as any other inmate, on regular hours. Proposed Rule 33-5.07(5) is a new offering which gives the Superintendent authority to act to promote discipline but provides adequate safeguards to prevent abuse. Proposed Rule 33- 5.08(3) is also new and it gives the inmates the opportunity to tell the superintendent what they need and provides for extra visiting time when justified. It also gives specific factors that inmates are to use to justify extra visiting time. It was intended to promote uniformity. Proposed Rule 33-5.08(10) dealing with searches, is designed to provide for a method to prevent the introduction of contraband into the institution. It is for the security of the institution and if reasonable, should provide no problems. There are presently no dress codes applicable to visitors coming into UCI or any other institution. Proposed Rule 33- 5.08(1)(c) applies to both men and women and is based on the need for security in the institution. The intent of the agency was to limit the opportunity for rude, suggestive, or untoward comments by inmates which could give offense to the resident inmate relative of the visitor to whom the comments are directed and which could incite fights or other violence. Proposed Rules 33-5.08(14) and (15) both exist in the present rule. Subparagraph 14 deals with people in protective custody and death row inmates as well as violent inmates. Subparagraph 15 deals with those instances where contact visits might jeopardize security. Those inmates in normal status would not be separated. The rules are based on the need to maintain security and prevent the passing of weapons, the spread of disease, or inappropriate conduct as is periodically demonstrated by inmates and visitors. The machinery designed by the agency to deal with those instances envisioned by the rule where a Superintendent of a particular institution might want to impose a standard stricter than that encompassed in the rule, requires that superintendent to submit his proposal to the Secretary of DOC along with justification and documentation indicating a need for a stricter standard. It is also envisioned that prisoners requesting a transfer from one institution to another write in advance to the new institution to get the local policy regarding a particular area or, wait to be briefed as to local policy during the incoming orientation on arrival. Just as the institutional superintendent must justify imposing a stricter standard than called for in the rule, it is, as well, the responsibility of the inmate who request extra visiting time, to present factors justifying the extension, the grant or denial of which is within the prerogative of the superintendent. Admittedly, while the rule does not define specific criteria for the superintendent to use in making his decision, it will be based on the reasonableness of the request and the sufficiency of the reasons submitted by the inmate. In short, the inmate must make his case and is not limited as to the factors he may use to show the need for extra time or for the change in location. The decision is within the discretion of the superintendent and is similar to other areas such as release, privileges, and the like in which the superintendent has been held capable of legitimately utilizing his discretion.
The Issue Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
The Issue The issue is whether respondent’s law enforcement certification should be disciplined for the reasons cited in the administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, David G. Delisle, is a certified correctional officer, having been issued Correctional Certificate No. 67615 on August 31, 1992, by petitioner, Criminal Justice Standards and Training Commission (Commission). When the relevant events herein occurred, respondent was employed by the Jacksonville Sheriff’s Office as a correctional officer at the Duval County Pre-Trial Detention Facility (detention facility). In an administrative complaint filed on March 21, 1996, the Commission charged that (a) on May 30, 1995, respondent “engage(d) in an unprofessional relationship with an inmate of said facility, under his supervision;” (b) on May 30, 1995, respondent unlawfully “receive from an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling paper;” (c) on May 30, 1995, respondent unlawfully “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling tobacco;” (d) on June 17, 1995, respondent engaged in “an unprofessional relationship with an inmate of said facility, under his supervision;” and (e) on June 17, 1995, respondent “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: food.” Respondent disputed these allegations and initiated this proceeding. At final hearing, petitioner voluntarily dismissed item (c). During respondent’s tenure as a correctional officer at the detention facility in 1995, James M. Bonner and James Barbour were inmates under his supervision. In May of 1995, respondent approached inmates Bonner and Barbour and offered them tobacco products, including rolling paper, and other considerations if they would “beat up” certain inmates, including one Max Harrison, who were “causing trouble,” for respondent. The purpose of such action was to cause those inmates to transfer out of the cellblock thereby relieving respondent of having to deal with them. In the case of inmate Max Herring, respondent wanted Henning to leave the cellblock because he was allegedly a homosexual. Bonner and Barbour agreed to beat up Herring and other unidentified inmates. On June 19, 1995, Bonner, Barbour and several other inmates, tied inmate Herring to a bed with sheets and began striking him with “flip-flops” and shower shoes. Herring suffered abrasions and bruises on his body. Bonner confirmed that, at the request of respondent, several other inmates, none of whom were identified, were also beaten. In return for these favors, respondent provided inmates Bonner and Barbour with extra portions of jail food, extra food brought into the facility from outside establishments, magazines, cigarettes, rolling paper, and radio privileges. Although not specifically identified at hearing, certain "regulations" of the Jacksonville Sheriff's Office prohibit a correctional officer from furnishing such goods and services to inmates, and the introduction of illegal contraband into a jail violates state law. On at least one occasion, respondent received tobacco products and rolling paper from Bonner to give to other inmates. This also violated an unidentified facility rule as well as state law.
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 determining that respondent has failed to maintain good moral character and required by state law and that his law enforcement certificate be revoked.DONE AND ENTERED this 24th date of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER 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 24th day of February, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of 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 Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. David G. Delisle 5350 Arlington Expressway, No. 3902 Jacksonville, Florida 32211
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2012.
Findings Of Fact On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist. While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face. Officer Winkle then grabbed Mr. Kitchens and put him on the floor. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed. DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992.
The Issue Whether Respondent was the subject of an unlawful discrimination action as defined in Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. She was certified as a corrections officer in March 1991. In November 1995, Petitioner was employed by Respondent, Department of Corrections, at Taylor Corrections Institution in Perry, Florida, as a correctional officer with the rank of sergeant. Prior to her employment at Taylor Corrections Institution she had been a corrections officer at a correctional facility in Jefferson County. Petitioner did not have employment problems while working at the Jefferson County facility. Petitioner's first year at the Taylor County correctional facility was "O.K." However, Petitioner was not well liked among her fellow officers. Between June through October 1996, Petitioner was the subject of several complaints from her fellow officers. These separate complaints were: On June 12 or 13, 1996, King cursed at an entire dormitory of inmates. On June 19 King was assigned to assist another officer in conducting a recount of inmates. She failed to assist the officer in conducting the recount. On July 24, 1996, King was assigned to escort the swill truck (a food truck) by the control room sergeant. She refused to accept the assignment and cursed at the control room sergeant. A few days later, she confronted another officer in a hostile and threatening manner because the officer had submitted an incident report concerning King's conduct in cursing at the control room sergeant. On October 9, another sergeant asked King to sign a typed incident report regarding King's loss of her state-issued handcuff case. King initially refused to sign the report. Shortly thereafter, she tore up the report in the presence of an inmate because she was displeased with certain comments in the report. On October 28, King cursed at a coworker. Id. PERC Final Order dated October 8, 1997. In October 1996, Petitioner filed several internal discrimination complaints against the agency generally opposing unfair employment practices. The exact nature of these complaints was not established by the evidence. On December 13, 1996, Petitioner received a notice of disciplinary charges being brought against her based on the earlier-filed employee complaints. The notice lists the charges as follows: Multiple charges are being brought against you stemming from several investigations. In the first case, you are being charged with malicious use of profane or abusive language toward inmates, visitors, or persons under supervision, use of verbal abuse of an inmate, conduct unbecoming a public employee, and willful violation of state statute, rule, directive, or policy statement. Specifically on June 25, 1996, an anonymous request was received by the Superintendent's Office alleging that you cursed the entire dormitory of inmates on June 13, 1996. It was also alleged that you had been gambling and would not pay off your debts. This prompted an investigation into these allegations. Several witnesses including an inmate verified the above allegations. The basis for these charges is contained in the Institutional Investigation Report #96-044, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33- 4.001(4)(a), 33-4.002(4)(9), and 33- 4.003(6)(20)(22)(24), F.A.C., copies attached and made a part hereof. In the second case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming a public employee, unwilling to follow lawful orders or perform officially designated duties, interference with an employee, failure to follow oral or written instructions, witness tampering during an investigation, and retaliation. Specifically on July 24, 1996, Sergeant J. Pickles reported that while assigned as Control Room Supervisor, he advised you via radio that he needed an escort for the swill truck. You responded by telephone and stated "Why are you calling me? I'm not escorting that fucking swill truck. I'm busy in the Caustic Room. Get someone else to do that shit." Officer V. Aman submitted an incident report verifying the telephone conversation since it was the dormitory in which she was assigned to that you came to use the telephone. On August 1, 1996, Officer Aman also stated that you made threats toward her in retaliation for submitting her report, in which you admitted to confronting this officer. The basis for these charges is contained in Institutional Investigation Report #96-052, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33- 4.002(4)(11)(17), 33-4.003(22)(24)(32), F.A.C., and Sections 914.22, 914.23, Florida Statutes, copies attached and made a part hereof. In the third case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming, unwillingness to perform officially designated duties, substandard quality of work, negligence, and failure to follow oral or written instructions. Specifically, on June 19, 1996, a recount was ordered and you were informed by the control room that your dormitory officer needed assistance in the recount. The officer stated that he waited approximately ten (10) minutes for your arrival and proceeded to recount without assistance. He then submitted an report as to the incident. You then submitted an incident report concurring with the officer with the exception that you observed the recount from the Officer's Station. The basis for these charges can be found more specifically contained in the Institutional Investigation #96-058, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(4)(11) and 33-4.003(10)(13)(22)(24)(32), F.A.C., Institutional Post Orders 17.02(j), 06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4), and Institutional Operating Procedures 3.03.3(C)(5)(11e), copies attached and made a part hereof. In the fourth case, you are being charged with conduct unbecoming a public employee, willful violation of state statute, rule, directive, or policy statement, and destruction or abuse of DC property or equipment. Specifically on October 9, 1996, you submitted an Incident Report for losing your state issued handcuff case. On October 13, 1996, after being typed, Sergeant Chad Dees gave the Incident Report to you to be signed. Upon receiving the report, you allegedly stated "I will show you what I will do with this," then tore the report up and walked away. You admitted to tearing up the report because of the comments written by Captain Simons, but denied making the comment alleged by Sergeant Dees. Officer Tammy Alvarez witnessed you tear up the report, but denied hearing any statements made by you. The basis for these charges is contained in the Investigative Report #96-23008, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(25), and 33- 4.003(22)(24)(27), F.A.C., copies attached and made a part hereof. All of these charges pre-date Petitioner's internal complaints. On January 23, 1997, a predetermination conference was held on the above charges. The evidence did not demonstrate that the employee charges or the disciplinary action were retaliatory in nature or based in discrimination. Moreover, the factual basis of the charges was upheld in the PERC Final Order. As referenced in the letter, Petitioner was the subject of several investigations conducted by the Inspector General's Office of the Department of Corrections. The role of the Inspector General was to gather the facts and evidence involved in a complaint. The Inspector General does not make any recommendations as to discipline or determine if a rule or statutory violation has occurred. Raleigh Sistruck, an Inspector with the Inspector General's office conducted some of the investigations of Petitioner. He did not personally know Petitioner. There was no evidence that he treated Petitioner differently than he did any other investigatory subject. Nor did Inspector Sistruck engage in any conspiracy or act alone to fabricate evidence against Petitioner or elicit false testimony from witnesses. Indeed, the only evidence presented in this case, is that Inspector Sistrunk followed standard investigatory procedures in investigating the complaints against Petitioner. In January, 1998, Petitioner was accused of soliciting an inmate and another correctional officer to cause harm to another inmate at the facility. The Inspector General's office investigated that accusation. Again there was no evidence that the inspectors engaged in any conspiracy to falsify or fabricate evidence. Normal investigatory procedures were followed. Based on the various complaints and the findings set forth in various Inspector General investigations, Mr. Drake decided to terminate Petitioner. Petitioner received a letter of extraordinary dismissal on February 7, 1997. The dismissal letter dismisses Petitioner for: This dismissal is the result of you being charged with willfully engaging in conduct which violates state statutes and Agency rules; conduct unbecoming a public employee; failure to conduct yourself in a manner consistent with the welfare of inmates; soliciting, bartering, dealing, trading with or accepting a gift or other compensation from an inmate(s); willfully treating an inmate in a cruel or inhuman manner; threatening or interfering with other employees while on duty; failure to maintain a professional relationship with inmates; giving false testimony; and interfering with an inmate. Specifically, on or about January 10, 1997, you solicited the assistance of inmate Tony Jackson, DC#724515 and Correctional Officer Jacqualyn Jackson-Beasley to cause harm to inmate Mike Doty, DC#725094. As a result of your actions and requests, Officer Jackson- Beasley, inmate Jackson, inmate Mark Smith, DC#724887, inmate Alberto Matta, DC#191523 and inmate Thomas Carrillo, DC#195319, conspired and did plant a homemade knife, with an approximate 14 inch blade, in inmate Doty's cell in an effort to set him up. When inmates Carrillo and Matta entered F- Dorm with the knife, Officer Jackson-Beasley signaled then with her fingers indicating inmate Doty's cell number. She also acted as a cover while the inmates planted the knife in inmate Doty's cell. Once the knife was planted, you and Officer Jackson-Beasley had a telephone discussion during which you instructed her to call Sergeant Gerald Miller and have inmate Doty's cell searched. Once Officer Jackson-Beasley reported the information to Sergeant Miller, a search of Doty's cell was made and the knife was recovered. Sergeant Miller than notified Captain William F. Buchtmann. After questioning by Captain Buchtmann, inmates Carrillo and Mata, both admitted their participation in placing the knife in inmate Doty's pillow and stated they were contacted by inmates Jackson and Smith for assistance. Carrillo was told by Jackson and Smith that it was you who wanted inmate Doty taken care of and they gave inmate Carrillo the impression that if he took care of inmate Doty, he would be paid $50.00 and be given an undisclosed amount of marijuana for his assistance. The following day, January 11, 1997, you stated to inmate Jackson words to the effect, "They locked up inmate Smith" and "That motherfucker talked" (referring to inmate Matta) You also stated to inmate Jackson words to the effect, "It's not cool for me to be seen talking to you." On or about January 17, 1997, Officer Beverly Pratt overheard you state to an unidentified inmate, words to the effect, "Something needs to be done with Doty." On that same date, inmate Willie Jackson, DC#041463, overheard you state to an unidentified inmate, words to the effect, "I am going to get Officer Jackson-Beasley and Sergeant Miller." When questioned under oath, on January 24, 1997, you gave false testimony when you denied all allegations. Additionally, the letter dismisses Petitioner for the earlier disciplinary charges discussed at the predetermination conference in December. Mr. Drake, Superintendent of Taylor Correctional Institute at the time, testified that Petitioner's termination was based on his belief that she had in fact committed the aforementioned rule and statutory violations. He stated that the termination was not based on Petitioner's race or sex or any other of her characteristics; rather, the termination was based on rule and statute violations. There was no evidence which demonstrated Mr. Drake engaged in any conspiracy to concoct evidence against Petitioner or to falsely accuse her. Angela Ratliff, Personnel Supervisor at the time, testified that she did not have any conversation with Petitioner wherein she told her that the Department, her supervisors or coworkers were "out to get her" or words to similar effect. Additionally, Ms. Ratliff does not recall having any conversations with prospective employers for Petitioner. The Respondent's policy is to recite to a prospective employer information contained in the employee's personnel file. The Department does not offer opinions or recommendations about an employee. Moreover, most of the information in the personnel file is considered a public record and must be released to any person or entity requesting the information. In any event, other than broad general statements about seeking employment and what she was told by others who did not testify at the hearing, there was no evidence regarding any specific prospective employer or the information, if any, the prospective employer received from the Department. There is no doubt that Petitioner feels very strongly she was discriminated against. The problem with Petitioner's case is a total lack of evidence to support her allegations. Throughout the hearing she made allegations of discrimination. However, no evidence apart from her allegations of which she had no personal knowledge, was offered. For instance, the alleged paper trail created against her or documents she claimed were changed were not introduced into evidence. No witness was called who wrote or filed such document or statement was called to testify about any such document or statement or any alleged change made to the document or statement. The paper noises or pauses of tape-recorded interviews of witnesses taken during the Inspector General's investigation did not support Petitioner's claim that the witnesses were prompted or told what to say. Such noises or pauses sounded exactly like pages being turned in a notebook when one page is full and a new page is needed to continue taking notes. The pauses sounded like a note taker pausing the witnesses' statement in order to catch up the notes to the witnesses' statement. Given these critical lapses in evidence and the earlier PERC Final Order, the Petition for Relief should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 16th day of May, 2001. COPIES FURNISHED: Anita King 108 Alice Street Perry, Florida 32347 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
