The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, 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 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue The issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
Findings Of Fact The Department?s Case Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713. On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida. Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut. Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene. Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak. Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen. The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent?s actions. Officer Dodson was able to interview Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify. On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie?s arrest was issued that same day. Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011. Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013. Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General?s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie. In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene. Respondent?s Story Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother?s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her. Ms. Bradie?s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face. Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face. Ms. Bradie?s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of February, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ashley Bradie (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Randolph Scott, began his employment with petitioner, Department of Health and Rehabilitative Services (HRS), on October 25, 1985. He held the position of detention child care worker 1 at the Dade Regional Juvenile Detention Center (Center) in Miami, Florida. When Scott began work, he was given a copy of HRS Pamphlet 60-1, the employee handbook which contained attendance and leave policies. According to the Center's superintendent, Dwight D. Coleman, Scott had attendance and punctuality problems from the onset of his employment. Scott was disciplined on several occasions in 1986 and 1987 for missing work without authorization and being late to work. This is confirmed in various memoranda introduced into evidence as petitioner's exhibits 1-3 and 7. To accommodate Scott and alleviate his attendance problems, Coleman reassigned Scott to a facility closer to his residence. This was because Scott had complained that the traffic congestion between his residence and the Center was responsible for him being late to work. However, the reassignment did not resolve the problems, and Scott eventually returned to the Center in March 1988. After returning to the Center, Scott's attendance was "sporadic" at first but, after April 23, Scott never returned to work except to pick up his paycheck. On those occasions, Coleman asked Scott for an explanation of his absences but received no satisfactory reply. At no time after April 23 did Scott give a reason for his absence in writing or prepare and submit a written leave request as required by HRS rules. Also, Scott was never authorized by a supervisor to be absent from work. At hearing, Coleman explained that he continued to allow Scott to remain on the payroll after April 23 because he was trying to help Scott work out his problems and Scott was a career service employee. According to Scott, he was paid through May 27, 1988. On May 27, 1988 Coleman sent Scott a letter by certified mail advising Scott that his absences since April 23 were not authorized, career service system rules provided that an employee was deemed to have abandoned his job after being absent three consecutive days without leave, and that he must "report to work immediately and provide an explanation for (his) absences." Scott denied receiving the letter since he maintained it was mailed to the wrong address. However, when Scott returned to the Center on June 8 to pick up a paycheck, he was given a copy of the letter. At that time, he declined to fill out a leave form as required by HRS rules and gave no valid reason for being absent. Although Scott made an oral request to take leave, no leave was authorized, and he did not return to work again. On June 13, 1988 Coleman sent Scott a second letter by certified mail advising him that he had been deemed to have abandoned his job effective June 8 by virtue of being absent for three consecutive workdays. Scott acknowledged that he received this letter. On July 21, 1988 Scott requested a hearing to contest the agency's decision. Prior to his termination, Scott had numerous conferences with Coleman and Ernestine W. Thurston, personnel manager for the Center. Despite these meetings, and instructions by them that he comply with HRS leave and attendance policies, Scott never submitted a formal written request for leave. At hearing Scott acknowledged that he did not attend work after April 23 and that he did not fill out a leave request. He declared he had verbally asked for time off but that his assistant supervisor did not "understand" his problems. These problems included being evicted from his apartment, a fear of being arrested at the job site for failing to make child support payments and a death in his fiance's immediate family. Finally, Scott admitted receiving a copy of the employee handbook when he began employment and conceded he was aware of the agency's leave and attendance policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Administration concluding that respondent has abandoned his job. DONE AND ORDERED this 18th day of November, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officers Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
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 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.
Findings Of Fact In 1977, Dr. Reavis applied for licensure as a medical doctor in Florida by endorsement pursuant to Section 458.051, [now Section 458.313(3)], Florida Statutes. Dr. Reavis was licensed in January 1978 by the Board. Dr. Reavis moved to Lakeland, Florida in 1978, where he has practiced medicine continuously since that time. The Board without actual notice to Dr. Reavis entered a Final Order on February 5, 1981, which purported to declare null and void the license of Dr. Reavis to practice medicine in Florida. Dr. Reavis became aware of the Board's action in 1984 when he sought to renew his license. Dr. Reavis immediately took steps to have the Board's order of February 5, 1981, rescinded. The Board reinstated the license of Dr. Reavis on February 15, 1984, but concurrently gave notice of its intent to reprimand Dr. Reavis for violation of Rule 21M-22.17, Florida Administrative Code. Rule 21M-22.17, Florida Administrative Code was enacted on December 12, 1983. Rule 21M-22.17, Florida Administrative Code, requires a doctor licensed by endorsement to present evidence to the Board of actually practicing in Florida. It is this provision of the rule which the Board alleges Dr. Reavis violated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners dismiss forthwith the Notice of Intent to Reprimand, and take no penal action against the Respondent, Dr. Wilton Reavis. DONE and ORDERED this 22nd day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985. COPIES FURNISHED: Susan Tully, Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301 Thomas L. Clarke, Jr., Esquire P.O. Drawer J Lakeland, Florida 33802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29) In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9) The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4) On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26) In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean) By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6) Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13) On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14) The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20) Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28) On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form. Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Earl Archer, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32301 Edward M. Teuton 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Conley Kennison Attn: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
