Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation 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 finding Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto Petitioner was incarcerated at Union Correctional Institition within the custody and control of the Department of Corrections. On or about March 1, 1983, Petitioner submitted a request to be admitted to the Mutual Participation Program, also known as ''Contract Parole." Thereafter, Petitioner was considered for eligibility for that program by a classification specialist employed by the Department of Corrections and a parole examiner employed by the Parole and Probation Commission. On April 22, 1983, these two officials recommended against Petitioner's request based on Petitioner's "extensive criminal history," "history of drug abuse in the past," his escape from minimum custody while a patient at the Veteran's Administration hospital in Gainesville in December of 1979, and his involvement in a prison disturbance at Marion Correctional Institute in 1978. Chapter 23-20, Florida Administrative code, entitled Mutual participation Program was first adopted by Respondent on September 10, 1981. Respondent conducted rulemaking proceedings in 1982 which resulted in amendments to various portions of Chapter 23-20, Florida Administrative Code. These amendments became effective October 1, 1982. During the course of the rulemaking proceeding, Respondent published notice of the proposed changes in the Florida Administrative Weekly and, in addition, forwarded copies of the proposed changes to all Department of Corrections offices, including each correctional institution. The record in this cause is unclear as to whether these proposed changes were ever posted in the law library or other office at Union Correctional Institution. Petitioner contends that he was never afforded notice of the proposed amendments to Chapter 23-20, Florida Administrative Code, and library officials at Union Correctional Institution do not specifically recall ever having seen such proposed amendments. There are no facts of record in this proceeding from which it could be concluded with any certainty whether any of the provisions of Chapter 23-20, Florida Administrative Code, either as it was initially adopted or as it was amended effective October 1, 1982, were applied to Petitioner's request for participation in that program.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, an executive agency of the State of Florida, is an employer as that term is defined in Section 760.01(6), Florida Statutes. Vickers is a black male who at all times material to this proceeding was employed by the Department. Vickers was first hired as a COI at the Mayo Correctional Institution, Lafayette County, Florida, on or about October 30, 1987, and transferred to the Madison Correctional Institution, Madison County, Florida, on or about February 19, 1988. At all times material to this proceeding, Vickers held permanent status within the Career Service System, enacted and authorized under the laws of Florida. On April 28, 1989, Vickers was promoted from COI in food service to COII in food service. Vickers was placed on a nine-month probationary status insofar as the promotion was concerned. Vickers was selected for this promotion over two other white candidates. The interview team consisted of Eric Holt, Cathy Leggett and Aubrey Dean. Then-Superintendent, Terry Hicks selected Vickers for the promotion on the recommendation of the review committee. In the position of COII in food service, Vickers was responsible for supervising staff and inmates in the preparation of food at the Madison Correctional Institution. Vickers would supervise as many as three correctional officers and as many as 20-30inmates. Among those under Vicker's supervision was COI, Janice Lingenfelter and inmate Jeffery Lausin. On or about August 15, 1989, Lingenfelter made a complaint to COII Nellie Cunningham that Vickers had been sexually harassing her. Lingenfelter then made a written complaint to Hicks, who then requested that an inspector from the Department's Inspector General's Office be assigned to investigate the allegations. CO Inspector II William Dotson was assigned to investigate the allegations made by Lingenfelter. Dotson began his investigation on August 17, 1989, by interviewing several witnesses including Lingenfelter, Cunningham, Lausin and Vickers. Dotson's investigative report was completed and sent for review to the Inspector General of the Department on October 3, 1989. It was determined through Dotson's investigation that there was evidence to support Lingenfelter's claim of sexual harassment against Vickers and a failure by Vickers to maintain a professional relationship with staff and inmates under his supervision. Dotson's report was sent to Hicks at Madison Correctional Institution sometime between October 4, 1989 and November 1, 1989. By letter dated November 1, 1989, Vickers was notified that disciplinary charges were being brought against him for violating certain Department rules pertaining to sexual harassment and failure to maintain a professional relationship with inmates under his supervision. That letter, signed by Hicks, also advised Vickers of his right to request a conference, prior to any final action being taken, at which he could present evidence to refute or explain the charges against him. Vickers requested and was given a conference held on November 28, 1989. At that conference, Vickers was represented by counsel and presented a statement to Hicks regarding the charges against him. Vickers was notified by letter dated December 6, 1989 that he would be suspended for five days without pay for his violation of the rules cited in the charging letter of November 1, 1989. On or about August 18, 1989, Vickers was reassigned from food service to security. Hicks made this reassignment due to the investigation into allegations of sexual harassment against Vickers which had originated in food service. After reviewing Dotson's investigative report, and after hearing Vickers' response to the charges against him, Hicks made the decision to demote from COII to COI. The demotion was effective December 15, 1989. At the time of the demotion, Vickers was in probationary status as a COII. Hicks determined that Vickers had exhibited an inability to properly supervise the inmates and staff under his supervision. An inmate in food service had patted a female correctional officer in food service (Lingenfelter) on the buttocks. Hicks attributed this lack of discipline on the part of the inmate to poor supervision by Vickers. On or about December 15, 1989, Vickers was given a below standards performance appraisal written by Eric Holt, his supervisor. On the front of the appraisal was the indication that it was a probationary appraisal. Personnel Manager Leggett told Hicks that it should be a special performance appraisal rather than probationary, but Hicks did not change the appraisal prior to giving it to Vickers. This performance appraisal was incorrectly titled "probationary" rather than "special", and later determined to be invalid. Vickers was not given an annual performance appraisal on his anniversary date (October 30, 1989) because he was in a probationary status. While the failure to give a timely and appropriate employee performance appraisal may be a violation of the Career Service System Rules, Chapter 22A-9, Florida Administrative Code, this not would prohibit the Department from demoting an employee who is on probationary status because of a promotion, if there were legitimate, nondiscriminatory reasons for the demotion. Vickers has never received a Performance Appraisal wherein he was rated at less than an "Achieves Level", other than the Performance Appraisal entitled "probationary" which was later determined to be invalid for reasons other than the rating of Vickers' performance. Vickers appealed his suspension and demotion to the Public Employees Relations Commission (PERC). A hearing was held, since it was determined that PERC did have jurisdiction to review Vicker's suspension but not his demotion. Under the personnel rules governing state employees, a person who is in probationary status in a class may not appeal his or her demotion from that class. After hearing and weighing the evidence and argument of both parties, the Hearing Officer entered a Recommended Order dated March 2, 1990 wherein it was found that the Department had proven the charges against Vickers by a preponderance of the evidence, and therefore, just cause existed for discipline. The Hearing Officer also determined that the five-day suspension should not be reduced, specifically citing the seriousness of the offense as it related to his duties and responsibilities. A Final Order was issued by PERC on May 2, 1990 adopting the Hearing Officer's Recommended Order in its entirety and dismissing Vicker's appeal. Approximately January 3, 1990, interviews were held to fill the position of COII in food service from which Vickers had been demoted. Of the eleven applicants, two were black males, one was a black female, five were white males, and three were white females. One of the black males cancelled his interview, while the other "declined F.S." (food service). The black female was promoted to a position with the Hamilton Correctional Institution. Larry Pickels, a qualified white male, was selected for the position. Neither the "invalid Performance Appraisal" nor Hick's decision to demote Vickers were motivated by Vickers' race or sex, to wit: black and male. The Department has produced sufficient admissible evidence to show that it had a legitimate, nondiscriminatory reason for demoting Vickers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, recommended that the Commission enter a Final Order finding that Petitioner, Curtis Vickers, was not demoted due to his race or sex in violation of Section 760.10, Florida Statute, and that the Petition for Relief be dismissed. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 day of February, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5279 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(14); 5(2,19); 6(11); 7(7,18); 8(7); 11(10); 12(17); 13-14(16); 15-16(15); 18(14); 19(12); 20-21(14); 27(7,8); 31(16). Proposed findings of fact 9 and 10 are a restatement of testimony rather than a finding of fact, but see Finding of Fact 8. Proposed findings of fact 17, 28 and 32 are unnecessary. Proposed findings of fact 22-26, and 33 are neither material nor relevant. Proposed findings of fact 29 and 30 are more in the way of an argument than findings of fact. Proposed finding of fact 34 is neither material nor relevant, unless it is shown that Vikers' demotion was discriminatorily movitated. Specific Rulings On Proposed Findings Of Fact Submitted by the Respondent 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number inparenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(2); 2(4,5); 3-14(6,7,8,9,10, 11,12,13,14,17,18 and 19, respectively). COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahssee, FL 32399-1570 Gary L. Asbell, Esquire McMurry & Asbell 1357 East Lafayette Street Suite C Tallahassee, FL 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
Findings Of Fact The Alachua County Detention and Corrections Department (Exhibit 9) consists of 50 full-time employees (Exhibit 17). Authorized personnel spaces include the Correctional Director, the Correctional Assistant Administrator, the Correctional Inmate Consultant, the Correctional Recreation and Education Consultant, a Correctional Officer V, a Correctional Officer IV, six Correctional Officers III, five Correctional Officers II, and thirty Correctional Officers I (see Exhibit 10). Also authorized are a Secretary III who is the secretary to the Director, three Food Service Employees and one Accounting Clerk I. Alachua County has a total of about 786 County employees, including constitutional officers such as the Sheriff, Clerk of the Circuit Court, Tax Appraiser, Tax Collector, Supervisor of Elections and the County Commission Staff. This figure includes 91 professional employees. If employees of constitutional officers were excluded from a single bargaining unit for the County, such a unit would consist of 360 employees. The County is under a unified pay plan for all county employees. It retains the services of a pay plan consultant who does an annual review of pay, job descriptions and duties of all county employees. It also has a unified classification plan and personnel regulations that govern salaries, work hours, vacation, sick leave, leaves of absence and the like (Exhibits 10,11). The County Administrator is the chief executive officer for the county and, with respect to the Department of Corrections, supervises basic policies and budgetary functions. The department budget is proposed by the Director of the Department, submitted to the County Administrator for review and corrections, and then approved by the County Commission. The Director implements the plan and can change line items only by permission of the County Administrator and the County Commission. The only history of prior collective bargaining in the county was recognition of the Sheriff's office on or about May, 1972. The Police Benevolent Association is the bargaining agent for that unit. The position of the County at this time is that it is a co-employer with the Sheriff as to that unit. The current contract with sworn personnel includes about 133 employees. The Police Benevolent Association declined to be included in a county-wide unit of county employees. Alachua County is the subject of special state legislation which permits it to manage funds allocated to constitutional officers such as the Sheriff, Clerk of Circuit Court, Tax Assessor, and Tax Collector for the county (Exhibits 12-15). The functions of the Corrections Department include the detention of persons awaiting criminal trial, care and housing of prisoners serving sentences, work release and school release programs, classification and diagnostic services, recommendations to the court for referrals to these programs and recommendations for diversionary programs. Unlike most counties, the Corrections Department does not operate within or under the office of the Sheriff. The Department is conducting a modern concept in rehabilitation of offenders through a variety of programs which are designed to re-orient prisoners for more useful lives. To this end, the department secures grants which enable it to fulfill some of these functions. In hiring personnel, it looks for those who have a high school degree and preferably some college work in the social services area. When forming the department in 1973, most of the employees hired came "off the street", although some came from the office of the Sheriff and from other county departments. Correctional Officers carry identification as Special Deputies which empowers them to detain people for corrections only. This status is unique to them. They wear a modified uniform consisting of a blazer, slacks and tie. Correctional Officers carry arms in transporting prisoners to and from court and in supervising their recreational activities outside the correctional facility. The department has tried to get away from a chain of command concept to lessen a law enforcement image. Although it has done away with military titles there are still some personnel who use military titles such as Sergeant and Lieutenant in addressing personnel. Employees of the department have their most continuing contacts with the Sheriff's office because they are in the same building and have similar interests in connection with county prisoners. The Correctional Director is responsible to the County Administrator for all activities, operations and functions of the department. His duties include fiscal, plant, manpower planning, management, organization, staff selection and supervision, policy formulation, the establishment of programs for the department, and for the operation and maintenance of the detention center. He alone has the authority to hire, discharge, promote or discipline personnel of the department. He formulates the budget which is submitted through the County Administrator of the County Commission. He is assisted in the hiring process by a panel which includes himself or the Assistant Administrator, another department employee and either the inmate consultant or a faculty member from the University of Florida. The Assistant Administrator assists the Director by making recommendations as to departmental policy, securing grant applications,. and formulating departmental programs. He also makes recommendations to the Director as to personnel matters and assists in fiscal matters. The Director holds periodic staff meetings at which the Correctional Officers IV and V usually attend. The Correctional Officer V is the Commander of the Detention Center and is thus responsible for direct supervision of all personnel and operations at that facility. He carries out operational policy established by the Director in the form of orders and memoranda. He makes budget recommendations to the Director as to necessary equipment but is not directly involved in the budget process. He makes recommendations to the Director concerning all personnel actions affecting the Detention Center, to include leaves, promotions or terminations. He exercises direct supervision over the Correctional Officer IV and the shift commanders (Correctional Officer III). The Correctional Officer IV is under the general supervision of the Detention Center commander and is responsible for supervision of all logistical and support services of the center. He also assists the Commander in maintaining communication and coordination among shift commanders. He serves as the Acting Commander in the absence of the Correctional Officer V. The Correctional Officers III have direct supervision of Correctional Officers I and II in the operation of the center and related programs. They serve as shift commanders for three shifts of 8 1/2 hours a day each. Correctional Officers I and II perform essentially the same duties which involve primary responsibility to maintain physical custody and control of prisoners within the detention facility and while transporting inmates. Their secondary responsibility is support of program goals through communication and observation of behavior and inmate attitude which is reported to the shift commander or treatment staff. The Correctional Officer II also assists in supervision and on the job training for new employees. In the absence of the shift commander, the Correctional Officer II becomes responsible for the functions of the Detention Center and supervision of correctional officers on duty on that shift. The Correctional Recreation and Education Consultant is preferably an ex-offender who initiates programs and activities for the prisoner population, including various sports and games, competitions among the inmates, and assists the Correctional Inmate Consultant. The Correctional Inmate Consultant is a member of the personal staff of the Director. It is his responsibility to spend great portions of his workday in direct contact with the inmate population and to advise the Director on matters pertaining to the well-being, health, sanitation and programming activities of the inmates. He assists individual inmates with their problems and makes recommendations to the director concerning work release, furloughs, extra "gain time" and, in certain instances, disciplinary matters. He attends all staff meetings except those involving departmental personnel and advises the Director on matters relating to policies of the department with reference to inmate treatment and control. He is an ex-inmate and, in general, advises on the institutional climate. The Food Service personnel are cooks who prepare food for the institution in the cafeteria. They report to the Correctional Officer IV. The Secretary III is the secretary to the director of the department who handles confidential matters for him, including meeting agendas, taking and transcribing dictation, minutes of meetings, conferences and other activities.
The Issue Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-7. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 3 and 4. Incorporated in Finding of Fact 6. 10-11. Incorporated in Finding of Facts 7 and 8. Incorporated in Finding of Facts 10 and 11. Rejected as contra to the weight of the evidence. Incorporated in Finding of Fact 17. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that: Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated. RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986. COPIES FURNISHED: Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Gene "Hal" Johnson, Esq. 233 W. College Avenue Tallahassee, FL 32301 Robert R. Dempsey Executive Director Department of Law Enforcement O. Box 1489 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue Whether an alleged policy of the Respondent constitutes an unpromulgated "rule" which is an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, David Ansgar Nyberg and Walter William Harris, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are housed in Marion Correctional Institution. The Petitioners are subject to the rules and policies of the Respondent. The Petitioners were sentenced pursuant to Section 775.082(1), Florida Statutes. The Petitioners were both denied a requested transfer from Marion Correctional Institution to Zephyrhills Correctional Institution, a level 5A institution. The Petitioners have standing to institute these proceedings. The Respondent. The Respondent, the Department of Corrections, denied a recommendation that the Petitioners be transferred from Marion Correctional Institution to Zephyrhills Correctional Institution. The Respondent, through employees of the Respondent located at its central office (including Fred Roesel and James G. Mitchell), decides where inmates are housed and makes decisions concerning requests for transfers between institutions. The Alleged Policy. In the Initial Complaint filed in case number 91-6189RU and in the Initial Petition filed in case number 91-7540RU, and at the commencement of the formal hearing, Mr. Nyberg indicated that the alleged policy which he believes exists and that the Petitioners are challenging in this proceeding is essentially the following: Any inmate sentenced to prison in Florida pursuant to Section 775.082(1), Florida Statutes, is prohibited from being housed in any institution of the Respondent classified as a level 5A or lower numbered institution regardless of the inmates custody classification, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. Section 775.082(1), Florida Statutes, provides the following: A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death. The Evidence Failed to Prove the Existence of the Alleged Policy. The evidence failed to prove that the precise alleged policy challenged by the Petitioners as stated in finding of fact 8 is an existing policy of the Respondent. The institutions in which inmates are housed by the Respondent are classified as level one through level seven institutions. Generally, the higher the level of an institution, the greater the security. There are four custody grades for inmates: minimum, medium, close and maximum. An inmate's classification determines the security risk of that particular inmate. In determining which institution an inmate should be housed in, the Respondent has a general policy, as specified by Chapter 33-6, Florida Administrative Code, to consider many factors, including custody grades, the offense for which sentenced, the type of facility that is recommended and the medical grade of the inmate. It is not the policy of the Respondent to exclude an inmate from being housed in a level 5 or lower level institution without taking into account the inmate's custody grade merely because the inmate was sentenced pursuant to Section 775.082(1), Florida Statutes. The Respondent apparently has a policy of not placing inmates in a level 5A institution if, among circumstances not relevant here, the following circumstances exist: The inmate has been classified as close custody grade; and The inmate is serving a life sentence with a mandatory twenty-five years. The apparent policy set out in finding of fact 15 is contained on page 23 of a document referred to as the "Custody Classification Instructions." The apparent policy as set out in the Instructions, unlike the policy challenged by the Petitioners, takes into account, and is based upon, the custody grade of the inmate. Therefore, the apparent policy set out in finding of fact 15 is inconsistent with the policy challenged by the Petitioners and supports a conclusion that the policy challenged by the Petitioners does not exist. An inmate who has been sentenced pursuant to Section 775.082(1), Florida Statutes, may be housed in a level 5 or lower level institution as long as the inmate is not classified as close custody. The reason for not housing close custody inmates who meet any of the conditions set out on page 23 of the Custody Classification Instructions in a level 5 or lower level institution is that close custody inmates have not been assigned release dates and, therefore, constitute a greater security risk. The evidence failed to prove that the Custody Classification Instructions are contrary to, or inconsistent with, the provisions of Chapter 33-6, Florida Administrative Code. Denial of Mr. Nyberg's Recommended Transfer. It was recommended by personnel at Marion Correctional Institution that Mr. Nyberg be transferred to Zephyrhills Correctional Institution. Mr. Nyberg was classified as close custody at the time the transfer request was made. The recommended transfer of Mr. Nyberg was denied by the Respondent through its Classification Department in Tallahassee, Florida. In light of the fact that Mr. Nyberg was sentenced pursuant to Section 775.082(1), Florida Statutes, and was classified in a medium custody grade at the time his transfer request was denied, Mr. Nyberg apparently concluded that the denial of his transfer was based upon the challenged policy. The evidence failed to prove this conclusion is correct. The evidence proved that Mr. Nyberg's transfer was denied after consideration of the length of time he has been in Marion Correctional Institution, the location of his current institution, the recommended time between transfers and the facility recommended. The evidence failed to prove that Mr. Nyberg's transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody grade. Denial of Mr. Harris' Transfer. The Respondent also denied a requested transfer to Zephyrhills Correctional Institution of Mr. Harris. A teletype from the Tallahassee office of the Respondent indicated the following concerning the denial of Mr. Harris' transfer: Transfer to Zephyrhills was disapproved 8-14-91, ACI is now a Category 5-A, cannot house life with 25- mandatory. This explanation was also included as the response from Mr. Harris' classification officer, Simon Ponder, on the form DC-3005 (the request for transfer form) (Petitioner's exhibit 2) filed by Mr. Harris. Mr. Ponder, who is not involved in formulating policies of the Respondent, assumed during the formal hearing that the rational given for denying Mr. Harris' transfer was the same rational for denying Mr. Nyberg's transfer. Mr. Ponder did not testify that he had any personal knowledge of the reason why Mr. Nyberg's transfer was denied, however. At best the evidence concerning Mr. Harris' denied transfer tends to prove that Mr. Harris' transfer was denied because he is serving a life sentence with a mandatory twenty-five years and because he is classified as close custody. Therefore, the denial of Mr. Harris' requested transfer was not made without regard to his custody classification which is an essential factor in the alleged policy challenged by the Petitioners. The evidence failed to prove that Mr. Harris' transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody status. Denial of David Ray Martin's Transfer. The Respondent denied a transfer to Zephyrhills Correctional Institution of David Ray Martin, another inmate. A teletype was sent to the Tallahassee office of the Respondent by Charles Manning, a correctional probation officer II, in which Mr. Manning indicated the following concerning the Mr. Martin's transfer: Subject was recommended for Zephyrhills CI for a good adjustment transfer. Please note that he has a 25-year mandatory; and, therefore, does not meet the criteria for a Category 5-A institution. Please divert to Polk CI 580, and excuse the error. Thanks, Chuck. Mr. Manning, who is not involved in establishing policy for the Respondent, admitted at the formal hearing that he had incorrectly assumed when he sent the teletype quoted in finding of fact 30 that the Respondent had such a policy. Mr. Manning's incorrect assumption concerning the policy of the Respondent was probably based upon the language of the Custody Classification Instructions concerning inmates classified as close custody who are serving a life sentence with a mandatory twenty-five years. Mr. Manning apparently confused the policy which may be evidenced in the Custody Classification Instructions with the alleged policy at issue in this proceeding. Conclusion. The Petitioners have failed to prove that the Respondent has a policy that inmates who are sentenced pursuant to Section 775.082(1), Florida Statutes, may not be housed in a level 5 or lower numbered level institution without regard to the custody classification of the inmate, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. At best the Petitioners presented evidence which may support a finding that the Respondent has a policy that inmates who are classified as close custody and who are serving a life sentence with a mandatory twenty-five years may not be housed in a level 5A institution. That is not the policy being challenged by the Petitioners, however, and no such finding of fact is necessary to dispose of these cases.
