The Issue The issue is whether the correctional officer certificate of Melvin J. Simmons should be revoked for lack of good moral character due to having sexual relations with an inmate in the Palm Beach County Jail where Mr. Simmons was employed?
Findings Of Fact Melvin J. Simmons was issued a certificate as a correctional officer by the Criminal Justice Standards and Training Commission on May 30, 1984, certificate 44-84-502-02. In February 1985, Mr. Simmons and Lidia Gonzalez were employed as correctional officers at the Palm Beach County Jail. Both had attended the Police Academy in the same class. In February 1985, Pearline Bartee was incarcerated at the jail. As a trustee, Ms. Bartee was able to move about the jail. Ms. Gonzalez worked in the watchtower at the jail. Simmons approached her to have her arrange a meeting between himself and Bartee in the enclosed stairwell between the first and second floors of the jail. Women inmates were housed on those two floors. Simmons told Gonzalez that he wanted the meeting to engage in sex with Bartee. Simmons asked Gonzalez to warn him through the intercom system in the watchtower and stairwell if a supervisor approached the stairwell while Simmons and Bartee were together there. Simmons had two meetings with Bartee in the stairwell and thanked Gonzalez for looking out for him. On both occasions Simmons had sex with Bartee in the stairwell. Sergeant Michael Tucker of the staff investigation unit of the Palm Beach County Sheriff's Department investigated a rumor that correctional officers had engaged in sex with female inmates. During the course of the investigation, Tucker received information that Simmons may have been involved in misconduct. On April 23, 1987, Sergeant Tucker and a polygraphist, Aaron Saylor, interviewed Simmons about the allegations of sexual misconduct. Simmons initially denied the allegations and grew increasingly nervous during the interview. Due to Simmons' demeanor, Tucker told Simmons that he doubted Simmons' truthfulness and was asked to submit to a polygraph examination. Respondent then admitted that he had engaged in intercourse with Bartee in the stairwell on three occasions in February 1985. Sexual contact between correctional officers and inmates is inconsistent with the employment practice of the Palm Beach County Sheriff's Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That certificate 44-84-502-02 issued to Melvin J. Simmons be REVOKED. DONE AND ORDERED this 21st day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2937 All proposed findings of fact have been adopted except Finding of Fact 9 relating to rumors that inmate Bartee may have become pregnant. In light of the evidence that Ms. Bartee, herself, told correctional officer Gonzalez that Bartee was not pregnant, there is no record basis for such a finding. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Melvin J. Simmons 1412 West 7th Street Riviera Beach Florida 33404 Marzell Mitchell, Jr., Esquire Harvey Building, Suite 413 224 Datura Street West Palm Beach Florida 33401 Rod Caswel1, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since October 13, 1981, certified by the Commission as a correctional officer. She holds certificate number 3-81- 5000-00. At the time of the incidents alleged in the Amended Administrative Complaint, Respondent was employed as a correctional officer with the Broward County Sheriff's Department (hereinafter referred to as "BSO"). On November 9, 1989, Lieutenant Charles Bass of the Davie Fire Department and other Davie Fire Department personnel were dispatched to a residence located at 13710 Southwest 36th Court in Davie, Florida, to respond to a report of a gasoline spill inside the structure. When Lieutenant Bass arrived on the scene, he was met outside the residence by Respondent, who identified herself as the owner and a resident of the home. Respondent told Lieutenant Bass that, upon returning home that day, she had discovered that someone had apparently entered the residence during her absence and spilled gasoline on the carpeting. In view of the information with which he had been provided, Lieutenant Bass contacted the BSO Bomb and Arson squad, as well as the Davie Police Department, to request that a criminal investigation be initiated. After having done so, he entered the home and found that the living room carpeting was saturated with gasoline. To reduce the danger of an explosion or fire, it was necessary to remove the gasoline-saturated carpeting from the home. Before this could be accomplished, however, the furniture that was on the carpeting had to be moved. One of the pieces of living room furniture that Lieutenant Bass and his colleagues had to move was a recliner. Under the recliner was an ashtray that contained the remnants of two hand-rolled, unfiltered cigarettes. Lieutenant Bass noticed the ashtray and its contents when the recliner was lifted off the floor. He thought that, given their appearance, the cigarette remains in the ashtray might possibly contain marijuana. He therefore brought the matter to the attention of the law enforcement officers who had arrived on the scene. One of these law enforcement officers was Detective Wayne Boulier of the Davie Police Department, who had extensive training and experience in the identification of illegal substances. Detective Boulier, based upon his visual inspection of the cigarette remains in the ashtray, believed that they contained marijuana. He then field-tested the cigarette remains using a Valtox disposal kit. The results were positive for the presence of cannabis. Detective Boulier then confiscated the cigarette remains. When he returned to police headquarters, he placed the suspected contraband in the police property room. Before completing his report of the incident, Detective Boulier interviewed various people, including Respondent. In his completed report, Detective Boulier noted that marijuana had been found in Respondent's home. A copy of the report was sent to BSO, Respondent's employer. On December 11, 1989, after reviewing the report, Lieutenant Mike Ryan, the Executive Officer of BSO's Internal Affairs Division, assigned Detective Carol Dansky, one of his subordinates, to investigate the matter. Detective Dansky was instructed to contact Respondent and inquire if she would undergo urinalysis testing. Detective Dansky and Respondent were acquaintances. They had previously worked together in BSO's Internal Affairs Division. The same day that she was assigned the case Detective Dansky telephoned Respondent at the detention facility at which Respondent was working and asked Respondent to report to the Internal Affairs Division office to see her as soon as possible. Detective Dansky did not volunteer why she wanted to meet with Respondent and Respondent did not ask Detective Dansky to explain the purpose of the proposed meeting. Respondent complied with Detective Dansky's request and reported to the Internal Affairs Division office later that day. Detective Dansky informed Respondent of the report that had been received from the Davie Police Department regarding the discovery of marijuana in Respondent's home and that, as a result of this report, BSO's Internal Affairs Division was requesting 2/ that Respondent provide a urine sample for drug testing. Respondent freely and voluntarily consented to provide Detective Dansky with the requested urine sample. She indicated to Detective Dansky that she was in a hurry and wanted to get the matter over with quickly. Urine samples collected by BSO's Internal Affairs Division were tested and analyzed by Metpath Laboratories (hereinafter referred to as "Metpath"). 3/ Metpath provided BSO with sterile containers for the storage of the samples, 4/ as well as identifying labels and forms which were to be filled out and sent with the samples. Detective Dansky went to where these materials were kept and obtained a sterile container and the requisite form and labels. She also obtained from this area some food coloring and a clean styrofoam cup that, by all appearances, had not been used previously. Detective Dansky then walked with Respondent to the ladies' room. Upon entering the ladies' room, Detective Dansky went into one of the stalls and placed food coloring in the toilet bowl, after which she went to the sink in the ladies' room to wash her hands. While Detective Dansky was washing her hands, Respondent went into the stall that Detective Dansky had vacated and urinated into the clean styrofoam cup that Detective Dansky had given to her for that purpose. Respondent came out of the stall holding the styrofoam cup containing her urine sample in her hand. She then poured the urine sample from the styrofoam cup into the Metpath-provided sterile container. After the styrofoam cup was emptied, it was discarded in the waste basket in the ladies' room. Detective Dansky promptly sealed the container into which Respondent's urine sample had been poured. The container was sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. Taking the sealed container with her, Detective Dansky, accompanied by Respondent, walked back to her office. In her office, Detective Dansky filled out a Metpath Drug Screen Test Requisition (Chain of Custody) form. On the line on the form where the "Patient Donor Signature" was supposed to be placed, Respondent, consistent with accepted BSO practice and policy designed to protect the confidentiality of test results, instead put her initials, as well as her BSO computer control number, 2559. After the form was completed, Detective Dansky placed green labels, each bearing the same unique identifying number, on the form and the sealed container. She then put the completed form and the container in an envelope. The envelope was stored in a refrigerator until it was picked up by a courier. The envelope was delivered to Metpath's forensic laboratory later in the day on December 11, 1989. The sealed container with Respondent's urine sample was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of the unique metabolite of tetrahydrocannabinol (THC), which is produced when marijuana is ingested and metabolized in the body. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method currently available, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of the THC metabolite in a concentration of 27 micrograms per liter. 5/ The microgram per liter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana prior to the collection of her urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. BSO's Internal Affairs Division received the results of the testing on December 15, 1989. On December 20, 1989, Detective Dansky took a statement from Respondent. In her statement, Respondent willfully and knowingly provided false information when she denied using marijuana. Respondent also denied that Detective Boulier had informed her that marijuana had been found in her home. BSO eventually terminated Respondent's employment on the grounds that Respondent had engaged in the illegal use of drugs and had provided false information during an internal investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking her certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1994.
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
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 The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot, glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G) Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is, RECOMMENDED: That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Craig McWhorter 1131 Northeast 201 Terrace North Miami Beach, Florida 33179 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a certified correctional and probation officer, was guilty of driving under the influence (DUI) on a date certain, as Petitioner alleges; and, if so, whether (and what) discipline should be imposed against Respondent’s certificate.
Findings Of Fact Petitioner is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them. At all times material to this case, Mr. Best was certified by Petitioner as a correctional officer (certificate number 191403) and correctional probation officer (certificate number 233946). In 2009, Mr. Best was disciplined by Petitioner for DUI. On January 11, 2012, Mr. Best arrived at a friend’s home around 10:00 p.m. and drank three beers while chatting about football. He left a little after midnight to return home. That same evening, Deputy James Ooley and Deputy John Carter, two deputies with the Indian River County Sheriff’s Office, were on road patrol. A few minutes after midnight, they observed Mr. Best’s car. The deputies noticed that Mr. Best’s vehicle registration decal had expired, that Mr. Best’s car was swerving within its lane and almost hit a curb, and that Mr. Best stopped beyond where he should have stopped at a stop bar. At 12:07 a.m., they stopped Mr. Best because of the expired decal and possible impairment. Deputy Carter stayed in the patrol car while Deputy Ooley approached the car. Deputy Ooley noticed that Mr. Best’s eyes were bloodshot and glassy, his speech was slurred and mumbled, and he had trouble finding his driver’s license, despite the fact that it was in his wallet. Deputy Ooley also smelled alcohol on Mr. Best’s body and breath. Deputy Ooley asked Mr. Best to perform field sobriety exercises. These tests are designed to be divided attention exercises, to see if the person’s normal faculties (such as walking and talking) are impaired. During the field sobriety tests, Deputy Ooley verbally gave Mr. Best instructions and demonstrated each exercise for him. Directed to walk heel-to-toe on a straight line, Mr. Best stepped off the line a few times, and he turned incorrectly. While trying to stand on one leg, Mr. Best swayed, because he had trouble balancing, and put his foot down before being told to do so. Deputy Ooley arrested Mr. Best for driving under the influence of alcohol, a violation of section 316.193, Florida Statutes. He based his decision on his observations of Mr. Best’s driving before he stopped him, his physical appearance, and the difficulties he had in performing the field sobriety exercises. Mr. Best was handcuffed and placed in the patrol car, where he did not have any access to alcohol. He was brought to the local jail. Video footage of the intake room shows that, at approximately 12:54 a.m., Deputies Ooley and Carter entered the intake room of the jail with Mr. Best. Deputy Carter entered an officer room which was about ten feet away from the seat in which Mr. Best was placed and had a clear view of Mr. Best. Deputy Ooley left Mr. Best’s presence at approximately 12:56 a.m. to gather paperwork and a blank DVD for the DUI breath test. Prior to leaving, he asked Deputy Carter to keep an eye on Mr. Best. Deputy Ooley returned at 12:59 a.m. and started to fill out the DUI paperwork. He asked Mr. Best questions while he completed the paperwork. Mr. Best consented to a breath test and was escorted to the intoxylizer room by Deputy Ooley. Deputy Ooley had to start the intoxylizer and input Mr. Best’s personal information before samples could be given. The intoxylizer data began recording at 1:13 a.m. Deputy Ooley is seen on the video footage giving verbal instructions on how to blow into the machine and giving a demonstration. Mr. Best had difficulty providing a sample; repeatedly, he was unable to blow air for the required amount of time. His first valid sample was recorded at 1:20 a.m. and indicated a reading of .162 blood alcohol level, and the second required sample was recorded at 1:24 a.m. and gave a reading of .157 blood alcohol level. The legal limit is .08 of alcohol per 210 liters of breath. Deputies Ooley and Carter were with Mr. Best from 12:18 a.m., when he was arrested. As of 12:54 a.m., when video footage shows them entering the intake room, Mr. Best was never alone. The Deputies collectively observed Mr. Best continuously for approximately an hour. They never observed Mr. Best ingest anything, or regurgitate during the entire process. Deputy Ooley observed Mr. Best continually from 12:59 a.m. through 1:20 a.m., when the first valid sample was provided. He never saw Mr. Best ingest anything or regurgitate. The intoxylizer was working properly and had been inspected by the Florida Department of Law Enforcement. The deputies substantially complied with the requirements for breath tests set forth in Florida Administrative Code Rule 11D-8, which requires a 20-minute observation period before breath samples are taken. The totality of the evidence, which includes Mr. Best’s driving pattern that evening, his appearance and speech, and the difficulty he had in performing the field sobriety tests, establishes that Mr. Best was driving while under the influence of alcohol. The intoxylizer results provide additional evidence that Mr. Best was guilty of driving under the influence of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order permanently revoking Mr. Best’s certifications. DONE AND ENTERED this 31st day of July, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 31st day of July, 2013. COPIES FURNISHED: Elissa R. Saavedra, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Adrienne D. Soule, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his Correctional Officer Certificate?
Findings Of Fact Having considered Respondent's comment in requesting a formal hearing, it is inferred that Respondent holds a correctional officer's certificate issued by the Commission. On October 28, 2004, Respondent and Misty Quarles were living together in Gainesville, Florida, as a couple. Ms. Quarles describes their relationship as boyfriend and girlfriend. Respondent determined to end the relationship, to include removing Ms. Quarles' name from the lease for the apartment. An argument ensued. Ms. Quarles left the bedroom and went to the bathroom and closed the door. Respondent opened it and started yelling at Ms. Quarles. Respondent was angry. Respondent pushed Ms. Quarles forcefully. She fell to the ground. When Respondent pushed her down, Ms. Quarles hit her head on the and door the impact left a knot on her head. She got up and pushed Respondent back. The argument continued. Respondent pushed Ms. Quarles again and she landed on the bed in the bedroom. Ms. Quarles then began to pack her belongings to leave. Respondent started gathering some of her clothing and other effects to throw in the dumpster outside the apartment. Ms. Quarles knocked those items out of Respondent's hands. Respondent began yelling again and punched Ms. Quarles on her leg while holding her down on the bed. In trying to stop Respondent from punching her, Ms. Quarles used her right hand to resist the Respondent. He pushed against a joint in her hand, causing a right thumb fracture at the base of the first metacarpal. After that, Ms. Quarles asked Respondent to take her for medical treatment. Respondent took Ms. Quarles to North Florida Regional Medical Center where she was observed to have the fracture, together with abrasions on her nose, under her left eye, and a contusion on her right forehead. Her right hand was also swollen. Ms. Quarles received a splint and was told to use ice and employ elevation and rest to deal with her fracture. She was provided pain medication and referred to an orthopedic physician. Petitioner's Exhibit numbered one is a composite exhibit containing a series of photographs depicting Ms. Quarles physical state after her encounter with the Respondent leading to her injuries. Respondent's actions against Ms. Quarles were against her will and intentionally caused bodily harm. Deputy Robert Wesley of the Alachua County Sheriff's Office came to the hospital to investigate. Based upon his investigation, he arrested Respondent for felony domestic battery involving the incident with Ms. Quarles. The disposition of that arrest was not explained at hearing. There is no indication that Respondent has had prior discipline imposed on his correctional officer's certificate.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rules referred to and revoking Respondent's correctional officer's certificate. DONE AND ENTERED this 31st day of May, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2007 COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Curtis Coleman, Jr. Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Rampage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, 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 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
