Findings Of Fact Exhibit A is the Orientation Handbook (Handbook) for Lake Correctional Institution published in June 1980 by the Department of Corrections. Its first page reflects that it will be updated annually or as deemed necessary by the administration of the institution. A copy of this book is issued to every inmate. Inmates are disciplined for violating the mandates set forth in the Handbook; however, the Handbook by its own terms is a compendium of the statutes, rules, and regulations. It is subject to amendment by official memorandum posted on dormitory bulletin boards. Some of the regulations and rules set forth in the Handbook have been amended or stricken by the Department of Corrections. The Handbook no longer lists all of the existing infractions and certain of the infractions listed are no longer applicable. The Handbook states that the rules and regulations change from time to time and that it is the inmates' responsibility to check to see what the existing rules are. Thomas Hayes, DC# 053503, was given a corrective consultation for failing to stockade his mattress on his bunk. Paragraph 9 on Page 3 of the Handbook requires that inmates stockade their bunks. A source is not stated on the Handbook for this requirement to stockade bunks. Superintendent Staggers stated the authority for the requirement was Rule 33-3.01, Florida Administrative Code, and opined that it was a reasonable requirement related to health and welfare of inmates. Evidence was received regarding disciplinary action against Kevin Knight, DC# 094150, who was placed on Disciplinary Report for having a $5.00 bill in his possession when returning from the visiting area. Knight had not reported, as required, that he had the money in his possession when he entered the visiting are, and a search of Knight when he entered the area did not reveal the money. Possession of money (or negotiables) is prohibited. See Paragraphs 3-8, page 8 of the Handbook. The source of this prohibition is Section 944.47, Florida Statutes. Evidence was received that the inmates could not get free postage to mail pleadings to the Division of Administrative Hearings relating to this case. No reference to the Handbook was referenced by petitioners. Petitioner's Exhibit D is the applicable memorandum regarding Legal Mail implementing Rule 3.05, Florida Administrative Code. It limits Legal Mail to mail to or from: municipality, city, state & federal courts state attorneys private attorneys public defenders Hearing Officers of the Division of Administrative Hearings are not state attorneys, private attorneys, public defenders and the Division of Administrative Hearings is not a court. Evidence was received that there was not a specific source to which inmates and staff could refer to determine exactly what rules were operative. See testimony of Thomas Hayes DC# 053503. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent, Brenda Barnett, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent was initially hired in 1991, and worked as a steward in the jail kitchen facilities before becoming a detention deputy. Respondent is a state-certified sworn correctional officer and, in her capacity as a deputy detention officer, is charged with exercising direction, dominion, and control over incarcerated inmates. Prior to her employment as a detention deputy and as a condition thereto, Respondent received extensive training. Such training includes nearly 500 hours of academy training sanctioned by the Criminal Justice Standards and Training Commission. Also, once employed, the Pinellas County Sheriff's Office provides detention deputies with in-service training and forty hours of formal training annually. Respondent received such additional training through in- service while employed as a detention deputy. In March 1995, Respondent Barnett began a casual relationship with an inmate, Nelson Alas. Inmate Alas was incarcerated at the same facility where Respondent Barnett worked. At first, Respondent exchanged pleasantries such as "hello" or "good bye" with Inmate Alas. Inmate Alas would compliment Respondent. Within days, Inmate Alas attempted to pass a note to Respondent Barnett. Initially, Respondent refused to accept the notes. However, within ten days, Respondent accepted a note from Inmate Alas and soon began writing letters to Inmate Alas. Between the period, March 1995 and April 1995, Respondent wrote at least twenty-one letters to Inmate Alas. During this time Inmate Alas also wrote letters to Respondent. At one point Inmate Alas gave Respondent a photograph of himself. The letters written by Respondent to Inmate Alas were romantic in nature, and many of them spoke of her feelings for and attraction to Inmate Alas. Respondent has never denied and has, in fact, admitted writing these letters to Inmate Alas. Respondent further admitted that on one occasion during her involvement with Inmate Alas, she kissed him. Respondent's actions came to the attention of Detention Deputy David Howsare when an inmate told him that there was communication between Respondent and Inmate Alas, including the exchange of notes and allegations of physical contact. Detention Deputy Howsare reported this through his chain of command, and a search of Inmate Alas' cell was conducted. The search uncovered letters that had been written to Inmate Alas. At about the same time the complaint was made to Detention Deputy Howsare, a complaint regarding Respondent was called in to the PCSO Inspection Bureau. The complaint was made by Cynthia Hadley, who identified herself as the girlfriend of Inmate Alas. Ms. Hadley indicated that her boyfriend, Inmate Alas, was having an affair with a detention deputy and had written several letters to the detention deputy. The matter was referred to the Administrative Investigation Unit and Sgt. Daniel Buckingham and Sgt. Robert Kidd were assigned to investigate the complaint. During the investigation, Sgt. Buckingham sought to ascertain the identity of the person who wrote the letters that were found in Inmate Alas' cell. In this regard, Sgt. Buckingham had the letters sent out for processing for latent fingerprints. After this analysis revealed only the fingerprints of Inmate Alas, Respondent was required to provide a handwriting exemplar. The handwriting exemplar was sent to the Florida Department of Law Enforcement for analysis. The result confirmed that Respondent was the author of at least fifteen of the letters. Also, as part of the investigation, interviews were conducted with Inmate Alas, Ms. Hadley, and Respondent. The interview with Inmate Alas' was unsuccessful in that he was evasive, refused to answer many questions, and was generally uncooperative. During her interview with Sgt. Kidd and Sgt. Buckingham, Respondent admitted improper contact with Inmate Alas, including writing letters to him and receiving a photograph of him. Upon completion of the investigation, the investigatory file was given to Respondent's Chain-of-Command Board for review. Based on its review, the Chain-of-Command Board unanimously found that Respondent had violated rules and regulations of the PCSO relating to loyalty, association with prisoners, and knowledge of and obedience to rules and regulations. As a detention deputy, Respondent's actions of fraternizing with an inmate compromised her position and may have lead to the erosion of security. Also, such undue familiarity has the potential for jeopardizing the security of the institution and the safety of the public as well as that of Respondent's own family. Under the PCSO General Orders B-15 and C-1, as amended in February 1994, the disciplinary point calculation for Respondent Barnett was seventy-five points. The range of discipline for seventy-five (75) points is from a 10- day suspension to termination. The Chain-of-Command voted unanimously to recommend termination. Sheriff Rice concurred with the recommendation and terminated Respondent on June 20, 1995. Throughout the investigation and hearing, Respondent has admitted that she engaged in the conduct which is the subject of the termination notice. Respondent explained that her involvement with Inmate Alas occurred during a time that she was experiencing marital problems. In Respondent's opinion, these problems were exacerbated when she found a diary belonging to her husband in which he stated that he no longer loved her. According to Respondent, due to these problems, she was extremely vulnerable at that time. However, Respondent indicated that after the incidents which are the subject of this proceeding, she and her husband went to counseling and, presently, their marriage is strong. Prior to this case, Respondent has not been investigated or disciplined by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff's Civil Service Board enter a Final Order finding Respondent, Brenda Barnett, guilty of conduct unbecoming a public servant; violating PCSO Rules C-1, V, A, (002) and (011) and Rule C-1, V, C, (063); and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0019 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1-4. Accepted. 5-22. Accepted and incorporated to the extent not subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1-2. Accepted. 3-6. Accepted and incorporated. 7-8. Accepted but subordinate to result reached. 9-11. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate to result reached. 14-20. Rejected as conclusions of law and/or legal arguments. COPIES FURNISHED: Lawrence A. Jacobs, Esquire Feathersound Place 2727 Ulmerton Road, Suite 2 Clearwater, Florida 34622 James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Copies furnished continued: Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 34649-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
Findings Of Fact Standing. The Petitioner, Darryl McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. The Challenged Rule, Rule 33ER91-2, Florida Administrative Code. On January 23, 1991, the Respondent filed Rule 33ER91-1. This emergency rule was filed by the Respondent to alleviate problems created by a high increase in the number of close custody inmates caused by changes in the Respondent's rules during 1990. Pursuant to Section 120.54(9)(c), Florida Statutes, Rule 33ER91-1 was only effective for ninety (90) days. Therefore, Rule 33ER91-1 was due to expire on or about April 24, 1991. On April 23, 1991, the Respondent filed the Challenged Rule. The Challenged Rule is identical in its terms to Rule 33ER91-1. The Challenged Rule should have expired on July 22, 1991. The instant challenge was instituted on May 8, 1991, before the Challenged Rule expired. The amendments to Chapter 33-6, Florida Administrative Code, filed by the Respondent on July 1, 1991, do not repeal the effect of the Challenged Rule prior to July 1, 1991.
Findings Of Fact On December 3, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: provides maximum penalties for major violations, but fails to designate, or define minor infractions, or provide sufficient guidelines to guide the agency in exercise of its discretion to designate minor infractions as opposed to major infraction listed by the rule. More particularly, the rule provides in part that "any portion of either penalty may be applied." Applying either penalty listed in this rule, which provides for loss of gaintime or disciplinary confinement, is definitionally a major violation. . . . The Petition and the Amended Petition do not included any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
Findings Of Fact The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
The Issue The issues for determination are: (1) Whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; (2) Whether Respondent violated the Pinellas County Sheriff rule relating to effectiveness in assigned duties; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent is employed by Petitioner as a detention deputy and has been so employed for more than 11 years. At all times relevant hereto, Respondent was assigned to the Pinellas County Detention Center (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Respondent is responsible for the care, custody, and control of inmates incarcerated at the Jail. On April 26, 1999, Respondent was assigned to the third shift, Special Operations Division, and was a corporal supervising the booking area. In connection with that assignment, Respondent's job responsibilities included booking inmates into the Jail. One part of the booking process required that detention deputies obtain certain information from individuals taken into custody in order to complete the necessary paperwork. While the information was being obtained, inmates are instructed to stand behind a blue line on the floor. As part of the booking process, detention deputies inventory the property in the possession of an inmate and make a written record of that property and "pat down" the inmate. Following these procedures, the inmate is seen by a nurse. However, if the nurse is unavailable, the inmate is told to wait in Pre-booking Cell 4 (Cell 4). Detention Deputy Robert McQuire was also assigned to work the third shift in the booking area of the Special Operations Division on April 26, 1999. On April 26, 1999, during the third shift, Jay McMillen (McMillen) was booked into custody at the Jail on the charge of driving without a valid driver’s license. Upon arrival at the Jail, he was taken to the booking area, instructed to stand behind the blue line on the floor near the counter in the booking area, and asked for information required to complete the inmate property form. Both Respondent and McGuire participated in booking McMillen but McGuire asked the inmate most of the questions. During the booking process, McMillen cooperated with Respondent and McGuire and provided the information required to complete the booking form. Moreover, McMillen complied with orders given to him by the detention deputies. Although McMillen occasionally wandered a few feet away from the booking counter, he would immediately return to the area behind the blue line when so instructed. While being booked, McMillen never threatened either Respondent or McGuire. Furthermore, McMillen never physically resisted the actions of the detention deputies or exhibited physical violence. During the course of the booking process, Respondent undertook a routine pat down search of McMillen. As a part of that process, McMillen again complied with Respondent’s instructions to assume the appropriate position. While engaging in the pat down, some slight movement of McMillen’s leg occurred. However, at the time of this movement by McMillen, Respondent took no action to restrain McMillen. After the pat down was completed, McMillen was then told to sit on the bench in the booking area and to remove his shoes for inspection. McMillen immediately complied with this instruction. After Respondent completed the search of the shoes, he then ordered McMillen to have a seat in Cell 4. When Respondent ordered McMillen to Cell 4 to await nurse screening, McMillen complied with that order. While McMillen was walking toward Cell 4, McMillen made a single verbal statement to Respondent. The statement by McMillen was inappropriate and unnecessary. In the statement, McMillen referred to Respondent as "bitch." In response to McMillen's statement, Respondent turned from his original direction of returning to the booking counter and followed McMillen into Cell 4. It was Respondent’s intent at that time to remove McMillen from Cell 4 and to transport him to C Wing, an area used for inmates who were agitated or upset and needed a "cooling down" period. Respondent’s decision to remove McMillen from Cell 4 to the C Wing was based solely upon the tone of McMillen’s voice and was not the result of any aggressive physical act taken by McMillen or a verbal threat made by McMillen. Respondent followed McMillen into Cell 4 without the benefit of assistance from another detention deputy. In fact, prior to acting upon his decision to remove McMillen from Cell 4, Respondent did not advise McGuire or any other detention deputy of his intent or ask for assistance. Although Respondent did not advise any detention deputy that he was going into Cell 4, McGuire apparently observed Respondent proceeding toward Cell 4, and within approximately nine seconds, followed Respondent into the cell. At the time Respondent entered Cell 4 there was another inmate in the cell. Once in Cell 4, McMillen complied with Respondent’s instruction to face the wall and place his hands behind his back. However, while Respondent was handcuffing McMillen, McMillen exhibited an aggressive move toward him. As a result of McMillen's aggressive move, Respondent exercised force in restraining McMillen, engaging in an arm hold and forcing McMillen to the ground. Once on the ground, McMillen did not resist further and cooperated in the efforts of Respondent and McGuire to return him to his feet. During the process of Respondent's utilizing this force, McMillen suffered a cut over his right eye that required medical attention. McGuire then assisted Respondent in the handcuffing and transporting of McMillen. McMillen was then transported to C Wing where he was seen by a nurse, his restraints were removed, and he was left in a cell. McMillen did not resist further at that time and complied with the instructions of Respondent. Following the incident described in paragraph 16, Respondent and McGuire reported the incident as a use of force. Their incident reports were reviewed by Respondent’s supervisor, Sergeant Richard Leach, who approved the use of force and completed his own report. Prior to completing his report, Sergeant Leach attempted to speak with McMillen, but McMillen refused to discuss the matter with him. Sergeant Leach discussed the incident with Respondent and McGuire, but did not review the videotapes of the pre-booking area for the time period during which the incident occurred. It was later that Sergeant Leach was advised there was a problem with regard to the use of force. After reports were completed and submitted, the videotapes made in the pre-booking area of the incident were reviewed by Lieutenant Alan Harmer, pursuant to the procedures utilized at the Jail. Lieutenant Harmer also reviewed the incident reports prepared by Respondent and McGuire and the use- of-force report prepared by Sergeant Leach. Upon reviewing the tapes, Lieutenant Harmer determined that the events leading up to the use of force and the use of force itself violated Sheriff’s Office rules. As a result of Lieutenant Harmer's preliminary determination, an internal investigation was conducted by the Administrative Inquiry Division (AID) of the Sheriff’s Office pursuant to the referral by Lieutenant Harmer. Sworn statements were taken by investigators, including statements of Respondent, McGuire, and the inmate in Cell 4 at the time of the altercation. In his sworn statement, Respondent alleged that McMillen was verbally abusive during the course of the booking process and that he further was uncooperative and had initiated an act of possible physical resistance by moving his leg in a manner possibly designed to strike Respondent. After completing its investigation, the AID presented its entire investigative file to the Administrative Review Board (Board) without conclusion or recommendation. Sergeant Leach was among the officers sitting on the Board. Although Sergeant Leach had initially approved the use of force when he reviewed the reports of Respondent and McGuire, he voted to discipline Respondent based upon his observations from the videotapes of the incident. The Board met and after reviewing the materials provided by AID and giving Respondent the opportunity to respond further, the complaint was sustained. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, General Order 3-1.3 (Level Three violation), 067, relating to a member’s effectiveness in their assigned duties. On April 26, 1999, you unnecessarily caused a use of force by entering a cell and confronting an inmate. Further, you exposed yourself to undue risk by entering the cell without appropriate back-up. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of one Level Three violation is the basis for assigning 15 disciplinary points. As a result, Respondent was assessed 15 disciplinary points. Sheriff’s Office General Order 10-2 identifies a disciplinary range for a total point assessment of 15 points to be a minimum discipline of a written reprimand and a maximum discipline of a three-day suspension. In the instant case, Respondent was assessed the maximum discipline, a three-day suspension. The conduct engaged in by Respondent in following McMillen into Cell 4 and then engaging in a physical altercation with McMillen based solely upon a single comment by McMillen, regardless of the extent to which the comment constituted a vulgar insult directed toward Respondent, did not constitute a good correctional practice. Moreover, such conduct is not consistent with the training or conduct expected of correctional officers. The role of correctional officers in a volatile situation is to calm the situation and to maintain control, not to act to aggravate or to escalate the dispute or to allow the inmate to control the situation via verbal comments. Proper correctional practice would have been to allow McMillen to remain in Cell 4 for sufficient time to cool off and calm down before initiating further contact with him. Similarly, the actions of Respondent in following McMillen into the cell by himself rather than obtaining assistance prior to entering the cell, are also contrary to good correctional practice. Again, this conduct by Respondent served only to potentially escalate and aggravate the confrontation, rather than to calm the situation. Moreover, it is also good correctional practice to have two detention deputies transport an inmate. This is particularly so considering the presence of another inmate in Cell 4 at the time Respondent entered the cell. There was no need for Respondent to enter the cell with McMillen or to initiate physical contact with McMillen, and his actions are contrary to Pinellas County Sheriff's Office Policy and Procedure File Index No. DCB 9.29 that requires that detention deputies refrain from one-on-one confrontations with inmates that may lead to physical confrontations. The actions of Respondent created a situation that led to a use of force and injury to McMillen that could have been avoided had Respondent effectively performed his duties as a detention deputy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a final order finding Respondent guilty of the conduct alleged in the charging document and upholding Respondent’s suspension for three days from his employment as a detention deputy with the Pinellas County Sheriff’s Office. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of February, 2000. COPIES FURNISHED: William E. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, the following findings of fact are made: Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI). Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI. Inspector White and Ziggy were summoned to the parking lot. Ziggy alerted to the presence of narcotics in Respondent's vehicle. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it). In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters and other written materials, including correspondence from inmates. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her." Instead of waiting in the lobby, Respondent got into her vehicle and drove off. Her employment was subsequently terminated, and she never returned to the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2008.
