The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
Findings Of Fact 1/ The parties to this proeeeding have stipulated that Petitioner has standing as an inmate at Union Correctional Institution to challenge the provisions of Union Correctional Institution Operating Procedures No. 82-69. The parties have further stipulated that all of the provisions contained in the aforementioned operating procedure which are not self-limiting are intended to be either System or institutionwide in their impact. As mentioned above, Respondent and Petitioner have stipulated into evidence the challenged operating procedures and any relevant rules contained in Chapter 33, Florida Administrative Code. 2/ On or about December 15, 1976, Union Correctional Institution Operating Procedures No. 82-69 was initially issued. These procedures were revised on September 13, 1982, and were reviewed and continued in an operational status on May 23, 1983. The challenged operating procedures were issued ". . . to establish criteria for the placement of inmates in an Administrative Confinement status and to establish institutional policy and procedures applicable to such confinement." The operating procedures purport to be issued pursuant to authority contained in Sections 944.28 and 945.21, Florida Statutes, and Chapter 33-3, Florida Administrative Code. In the briefing process of this proceeding Respondent has conceded that the following portions of the challenged operating procedure constitute unpromulgated rules: That portion of 82-69.7A on pages 4 and 5 dealing with personal property which an inmate will be permitted to retain in his possession while in administrative confinement; 82-69.7B concerning inmate bank withdrawals; 82-69.7C dealing with canteen privileges; 82-69.7D dealing with library privileges; 82-69.7F concerning clothing for inmates in administrative confinement; 82-69.7K concerning religious material available to administrative confinement inmates; 82-69.7M concereing visiting privileges; 82-69.7U governing notarizing of legal papers and materials; and 82-69.8 governing restrictions to be imposed on privileges granted to inmates by virtue of the operating procedure. Further, Petitioner challenges in his memorandum Sections 82-69.4, entitled Criteria for Administrative Confinement, 82-69.70, entitled Medical Procedures, and 82-69.7Q, entitled Inmate Count procedures. Any sections of the operating procedures not argued by Petitioner in his Proposed Findings of Fact and Conclusions of Law have been considered abandoned. Section 82-69.4 of the operating procedures, entitled Criteria for Administrative Confinement, provides as follows: Inmates may be placed in Administrative Confinement who pose an immediate threat of violence or disruption to themselves, other inmates, Department employees, or the institution generally, or as a result of threats of physical harm from other inmates, or other good reasons. Reasons for placing inmates in Administrative Confinement are further defined as follows: Awaiting Disciplinary Action: When the evidence clearly suggests that to allow the inmate to remain in open population would present a clear danger to other inmates or to the security of the institution. Placing inmates in Administrative Confinement to await a disciplinary hearing is permitted only when there is a danger to the welfare of the inmate or other inmates in the population, or when the security and good order of the institution is in jeopardy. Pending Trial: For a crime committed in the Department when the facts clearly suggest that to allow the inmate to remain in open population would present a clear danger to the inmate, other inmates, or to the security of the institution. Custody Risk: Cases when the facts clearly indicate the inmate cannot be housed in the general inmate population. Inmates who, after removal from disciplinary confinement, clearly appear to the Classification Team to be a potential assaultive or disruptive factor if placed in the inmate population and who, therefore, cannot reasonably and safely be returned to the inmate population. For protection of the inmate or other inmates. The aforecited provisions of Section 82-69.4 of the operating procedures are a virtual recapitulation of the requirements currently contained in Rule 33-3.081(1) and (4) Florida Administrative Code. The requirements of the challenged operating procedures neither create, add to, nor detract from the rights of inmates at Union Correctional Institution. Section 82-69.7 0.1. of the operating procedures provide as follows: 1. Health Appraisal Prior to placement in confinement the inmate shall be escorted to the outpatient clinic for health appraisal. (In cases of combative or assaultive behavior, the appraisal shall be done as soon as possible after being confined.) Inmates who are acutely ill or whose mental condition or behavior shows sudden, rapid change (which may be due to the ingention[sic] of stimulants, drugs, alcohol, medications, or other toxic sub- stances, whether taken legally or illegally) who exhibit acute personality changes or other markedly bizarre behavior, or who have exhibi- ted a recent, serious intent to harm themselves, shall not be confined until the inmate's health status has been evaluated by the medical professional or paraprofessional on duty. If it is feasible to initially confine such persons in the clinic for observation, the medical staff member on duty will monitor the health status of the inmate in confinement at least every two hours, and more often as indicated in individual cases. The health appraisal must include as a minimum, the following: A brief review of health record Determine any medication the inmate is currently on that mustbe continued while in con finement, and essential scheduled health appointments for call-out. Vital signs, including temperature, blood pressure, pulse and respiration Determine any health complaints Perform physical examination as necessary based especially on any noted complaints For inmates in Medical Grades III or IV, determine any necessary continuity of care while in confinement An overall statement as to the fitness of the inmates' confinement will be based on the findings above No such specific procedure dealing with health appraisal was contained in either Chapters 944 or 945, Florida Statutes, or Chapter 33, Florida Administrative Code. These procedures are mandatory, and must be completed before an inmate may be placed in administrative confinement. The remaining provisions of Section 82-69.7 0 relate to Respondent's internal management of routine sick call, emergency medical procedures, medication, and inmate visits by the institution medical director. These sections do not purport to create or otherwise affect any individual inmate right. Section 82-69.7Q, entitled Inmate Count Procedures, provides, in part, that: The special nature of inmates confined on Administrative Confinement require maximum supervision and control. Consequently, there will be a total of six counts con- ducted throughout the day . . . . This section of the operating procedures goes on to establish the times and procedures for conducting the six inmate counts: an 8 a.m. response count; 12 noon response count; a 4:30 p.m. response count; a 9 p.m. master count; a 12 midnight body count; and a 4 a.m. body count. The only act required of inmates in this section is that they present themselves at their cell door and respond with their inmate number when their name is called at the 8 a.m., 12 noon, and 4:30 p.m. response counts.
The Issue The issue in this case is whether Petitioner properly terminated Respondent’s employment as a deputy sheriff for engaging in conduct that violated General Order 3-1.1, Rule and Regulation 5.15, governing the custody of arrestees and prisoners.
Findings Of Fact Admitted Facts Bob Gualtieri is the duly-appointed Sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri’s responsibilities include providing law enforcement services within Pinellas County. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to violate PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 14 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Orders require that PCSO “members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person.” PSCO General Order 13-3.1(A). Respondent used force on an inmate at the Pinellas County Jail on October 1, 2014. A complaint of misconduct was filed against Respondent on or about October 6, 2014. The complaint alleged that on October 1, 2014, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. An investigation was conducted by Petitioner’s Administrative Investigations Division. The investigation record was provided to Petitioner’s Administrative Review Board, which considered the complaint of misconduct and determined that Respondent’s use of force on October 1, 2014, constituted a violation of General Order 3-1.1, Rule and Regulation 5.15. Pursuant to PCSO General Orders, 50 points were assigned to the sustained violation found by the Administrative Review Board. Respondent had 30 carryover points from prior discipline. Pursuant to PCSO General Orders, the 80-point total reverts to 75 points, for which the authorized discipline ranges from a ten-day suspension to and including termination of employment. Sheriff Gualtieri terminated Respondent’s employment with PCSO. Additional Facts Found The central dispute to be resolved is whether Respondent’s use of force on October 1, 2014, was necessary and not excessive, as Respondent contends, or was unnecessary and excessive, as Petitioner contends. On the day in question, Respondent was working as a deputy sheriff in the healthcare division of the Pinellas County Jail. He was stationed at the duty desk located between two “pods”--open housing areas for inmates. At the doorway to one of the pods, a medication nurse was performing “med pass,” i.e., she was passing out medications to inmates from a medication cart. A deputy--not Respondent-- stood in the pod doorway next to the nurse, to supervise and provide security. Inside the pod, near the doorway, a few inmates waited in line for their medication. The deputy supervising med pass, Deputy Pettiford, was also calling the names of some of the inmates in the pod for “sick call,” meaning the inmates were to be taken from the pod to the healthcare clinic. One of the inmates waiting in the med pass line whose name was called for the clinic was Eugene Borkowski, a sickly- looking elderly man in a wheelchair. At the time, he was 63 years old, but he looked more frail and older than someone that age. He had Parkinson’s disease. He had been housed in the healthcare division for months, and had never caused a problem or been involved in a use of force by staff. When Mr. Borkowski’s name was called for sick call, he refused to go. At first, he ignored Deputy Pettiford when she called his name. The deputy called his name a few more times, and he responded verbally, saying, and then yelling, with a sprinkling of profanities, that he was not going to go and that he would have to be dragged down there. Mr. Borkowski’s behavior was verbal only; he remained in place in his wheelchair in line to receive his medication. By all appearances from the video evidence captured on two security cameras, Mr. Borkowski’s verbal outbursts were unremarkable, in that several inmates milling about the pod continued to go about their business, and nursing staff continued to administer medications, seemingly undisturbed. Without anyone asking for his assistance, Respondent took it upon himself to leave the desk area outside of the pod, enter the pod, and address Mr. Borkowski.4/ The video evidence shows that in a matter of seconds, Respondent entered the pod, walked up to Mr. Borkowski in his wheelchair, slowed down slightly at the side of the wheelchair (appearing to be stepping around something on the floor), and continued seamlessly around the wheelchair to stand behind it, grab the handles, and start pushing the wheelchair towards the pod doorway. Mr. Borkowski put his feet on the floor to stop the forward movement of the wheelchair. When he did so, he rose slightly to a partial standing position for a fraction of a second, then immediately returned to a seated position. When Mr. Borkowski braced and tensed in this manner, he had his back to Respondent; Respondent stood behind the wheelchair and Mr. Borkowski faced forward. He did not turn around towards Respondent, even in part. Respondent then moved to the right side of the wheelchair, placing his left hand on Mr. Borkowski’s back. Respondent’s left arm rose up Mr. Borkowski’s back, and when it reached above the shoulder to the neck area, Respondent’s left arm wrapped around Mr. Borkowski’s neck, controlling his neck and head. Respondent admitted that his arm was “probably” underneath Mr. Borkowski’s chin. (Tr. 140). Then, in rather startling violent fashion, Respondent lifted Mr. Borkowski up from his wheelchair seat by his neck and head and slammed him face down to the floor with enough force to break Mr. Borkowski’s dentures into pieces and topple the wheelchair. The wheelchair landed upended near the pod doorway. Respondent pinned a flattened Mr. Borkowski to the floor, with Respondent’s left knee pressing on the inmate’s back. There was some evidence that after Respondent moved to the right side of the wheelchair, either just before or at the same time as Respondent began his takedown, a small paper or plastic cup that had been in Mr. Borkowski’s right hand was dislodged, either going up in the air or up and backward. The cup may have had a small amount of water in it, or it may have been empty. Respondent testified that Mr. Borkowski tried to throw his cup at Respondent. However, if the cup was thrown on purpose, it was not thrown in the direction of Respondent, who was next to--not behind--the inmate; neither the cup nor any contents that may have been in the cup came into contact with Respondent. The evidence does not support a finding that Mr. Borkowski aggressively attacked Respondent by throwing a cup of water at Respondent. Instead, it is more plausible that: the cup was dislodged when Respondent began the takedown; this inmate with Parkinson’s disease involuntarily lost his grip; or the inmate intended to throw the cup as a distraction, not aimed at Respondent or anyone else. Respondent also offered, as justification for the takedown, his testimony that when he moved to the right of the wheelchair, he felt something that he perceived to be Mr. Borkowski’s hand on Respondent’s left side, where Respondent’s Taser and radio were. Here too, however, Respondent’s statements were inconsistent. In the incident report that he was required to complete, Respondent stated that Mr. Borkowski grabbed Respondent’s shirt. When questioned, however, Respondent said that his statement had been inaccurate. Respondent conceded that Mr. Borkowski did not actually grab Respondent or Respondent’s shirt. But as to what actually happened, Respondent offered a variety of different statements: it was an attempted grab, not really a grab at all; Respondent perceived something like a grab with an arm, hand, or something; or Respondent just had a perception of something. Ultimately, Respondent admitted that what he perceived he felt may have been nothing more than the side of the wheelchair. Respondent acknowledged that when he perceived whatever he perceived, he did not actually see Mr. Borkowski move a hand or arm towards Respondent. The video evidence appears to confirm that there was no such movement. After the takedown, not surprisingly, the inmate struggled with Respondent on top of him. Respondent secured one of the inmate’s hands fairly quickly, but then struggled to secure the inmate’s other hand behind his back to cuff him. The videos show Respondent on top of the inmate, using both upper and lower limbs to deliver blows to the inmate’s side and up around his head. While it is impossible to discern from the video whether Respondent delivered full closed-fisted punches, it does appear that Respondent delivered blows of some kind, pulling both arms and right leg back, then forcefully moving them forward to connect with not only the inmate’s body, but also the inmate’s head. Whether the blows were administered with Respondent’s knees, fists, or both cannot be determined, but the difference is inconsequential. Respondent acknowledges that he delivered at least four knee strikes to Mr. Borkowski for pain compliance, although Respondent said that the strikes were delivered to the inmate’s torso. Respondent testified that he did not remember whether he punched Mr. Borkowski, although he did admit that it was possible that he punched the inmate. After the takedown, while Respondent was on the floor struggling with Mr. Borkowski, Deputy Pettiford came into the pod with her Taser. After she attempted ineffectively to deliver a drive-strike to the inmate, Respondent grabbed her arm with the Taser and brought the Taser into contact with Mr. Borkowski. As a result of the takedown, Mr. Borkowski suffered cuts and bruising to the head and face, and his dentures were broken in pieces. Respondent denied that he anticipated a use of force when he left his desk to go into the pod, but he offered conflicting versions to explain what he intended to do when he left his desk to go into the pod: during his investigation, Respondent initially said that Mr. Borkowski could not refuse to go to the clinic, so he went in to take Mr. Borkowski out of the pod to speak with Corporal Bolle, who was nearby in the pod on the other side of the officer’s station. Later, after acknowledging that Mr. Borkowski had the right to refuse to go to the clinic, Respondent said that he went into the pod only planning to speak with Mr. Borkowski to try to convince him to stop yelling. Finally, in a blend of the two versions, Respondent said that he went into the pod only with the intent of speaking with Mr. Borkowski to calm him down, but that Mr. Borkowski’s behavior escalated to aggression and at that point Respondent decided to remove the inmate from the pod out of concern for staff and other inmates. The evidence does not support Respondent’s explanation that he only intended to talk to Mr. Borkowski to calm him down. The video display shows that hardly more than a second passed from the time Respondent entered the pod and approached Mr. Borkowski to when Respondent moved to the back of the wheelchair and began pushing Mr. Borkowski towards the doorway to exit the pod. If a calming talk was the objective, Respondent gave up pretty quickly. Apparently, Respondent did not consider or deliver the one calming line that would have addressed the inmate’s problem--telling him that if he did not want to go to the health clinic, he did not have to go to the health clinic. As Respondent admitted, inmates have the right to refuse to go to the health clinic. Sheriff Gualtieri convincingly explained the significance of that right here: Even if you’re in jail, you have rights. Even if you’re in jail, you don’t have to eat the food. You don’t have to go see the doctor. There are a lot of things you don’t have to do. And if you don’t want to go see the doctor, you shouldn’t be forced to go see the doctor. I mean, it’s real clear. The healthcare practitioner can come see him. But engaging to that extent all over the fact that the man didn’t want to go to sick call, that is just so wrong. (Tr. 52). The evidence also does not support Respondent’s explanation that he only made the decision to remove the inmate from the pod when the inmate’s behavior escalated. Instead, until Respondent attempted to push the wheelchair towards the pod exit, Respondent admitted that the inmate was not irate and that his behavior had not escalated beyond mere verbal resistance to being taken to the clinic. The video evidence confirms that in the scant seconds between Respondent’s entry into the pod and when Respondent moved behind the wheelchair and began pushing the inmate towards the door, Mr. Borkowski displayed no sign of movements or gestures that would indicate escalating behavior. Finally, with regard to Respondent’s testimony that his plan was not to force Mr. Borkowski to go to the clinic, but rather, to simply remove Mr. Borkowski from the pod and take him to talk to a supervisor, Respondent admitted that he never shared this plan with Mr. Borkowski; he did not tell Mr. Borkowski that Respondent was not taking him to the clinic. When asked if the inmate may have thought that Respondent was trying to take him to sick call when the inmate had just said he was not going, Respondent conceded: “He could have perceived that. He could have perceived that, yes.” (Jt. Exh. 5 at 111). Not only is that possible, but it is the most likely impression given by Respondent’s failure to tell the inmate that he was not being forced to go to the clinic. A determination of whether a use of force is necessary requires due consideration of the totality of circumstances, including subject/officer factors such as the relative ages, size, and physical condition of the subject and the officer. Likewise, a determination of whether the degree of force is reasonable or excessive must be made with due consideration of the totality of circumstances. Sheriff Gualtieri explained how he viewed the circumstances in making the determination that Respondent’s use of force was prohibited conduct because it was unnecessary and excessive: A big factor for me was, what was the nature of the initial point of contact between Deputy Ferrio and the inmate? We have a 63- year-old male in a wheelchair who had Parkinson’s who was disabled, who had signed up to go to sick call. We don’t make people go to sick call. If somebody wants to go to sick call, they go to sick call. He didn’t want to go. If there was an issue or a problem with him going, don’t make him go or go get with medical and make a determination as to what’s appropriate or how to do it. What was striking to me was the reason for the contact. This wasn’t an inmate refusing to come out of a cell or we needed to do a cell extraction. He wasn’t threatening anybody. He was sitting in his wheelchair minding his own business and just didn’t want to go to sick call. At that point, Deputy Ferrio tried to force him to go to sick call and that is where the incident went very bad from the beginning because he shouldn’t have been forced to go to sick call at all. Once he did that, the inmate put his feet on the floor. He braced a little bit by putting his feet on the floor. Okay, so what? The inmate put his feet on the floor. The next thing that really happens of significance is Deputy Ferrio grabbing this 63-year-old guy sitting in a wheelchair by the neck and slamming him on the ground with such force that it causes the guy’s dentures to break. He slams his face down on the ground and then pummels him with his knees and fists. This is all over this guy, this inmate, who didn’t want to go to sick call. There was some discussion about this. We discussed it during the decision-making process. It was discussed during the board about this alleged water throwing. Well, there’s no water throwing[.] [And] this alleged touching. Even if they occurred, they are nominal events. This isn’t that some guy took a bottle of water and threw it in his face or caused him to be incapacitated. This is a 63-year-old frail guy with Parkinson’s disease who’s sitting in a wheelchair who at the most, and I don’t think it happened from watching it, is may have turned his cup maybe towards Deputy Ferrio or something along those lines, but there was no justification. No justification at all for using that amount of force to take the guy by the head and neck, slam him on the ground to the point where his dentures break and then pummel him with his hands and fists. That is what I considered in making a decision that it was excessive force under the circumstances. I gave some consideration to Deputy Ferrio’s statements in this case. But even if there was some justification to do something, it wasn’t slamming the guy to the ground and kicking and punching him. Maybe tilting the wheelchair back and pulling him out. Maybe telling him not to brace with his legs. Maybe something along those lines, but not what he did. (Tr. 42-45). Sheriff Gualtieri’s assessment of Respondent’s use of force in the context of the totality of the circumstances in which that use of force occurred is fully supported by the record evidence and the findings made above, is reasonable, and is credited. Respondent’s use of force was not justified, and was not a reasonable response under the totality of circumstances. This finding is not a reflection of hindsight examination of the circumstances. Instead, the undersigned finds that a reasonable officer on the scene on October 1, 2014, would not have responded to the circumstances the way Respondent did. Respondent’s changing description of the events at issue and shifting rationales for his actions call into question Respondent’s credibility. Respondent’s evolving story suggests that it was Respondent who engaged in hindsight evaluation of his own actions, and, finding them wanting, revised the details in an effort to paint a more reasonable picture. What cannot be changed is the vivid picture of what transpired, recorded by two security cameras. While the two views do not perfectly capture every detail, they provide a clear visual record of what actually transpired that day, with images that cannot be denied or changed over time. The picture portrayed is more in keeping with Respondent’s admissions to the Administrative Review Board that he probably should not have gone into the pod and used force on the inmate (Jt. Exh. 6 at 148); and that even after the inmate braced and tensed, he did not have to rip him out of the wheelchair and take him down, but did so acting in “[t]he heat of the moment.” (Jt. Exh. 6 at 149). It is found, as a matter of ultimate fact, that Respondent’s use of force on October 1, 2014, was not necessary to accomplish a legitimate law enforcement task, was not justified by the totality of circumstances presented that day, and was excessive in degree, in violation of General Order 3-1.1, Rule and Regulation 5.15. Pursuant to General Order 3-1, a violation of Rule 5.15 is a level five violation--the most serious level under the PCSO disciplinary system. According to the point scale in General Order 10-2, 50 points were properly assigned for this violation. The discipline provided for this single 50-point violation ranges from a five-day suspension to termination. However, Respondent had a significant prior disciplinary history, with 30 carryover points from previous discipline. In accordance with the concept of progressive discipline built into Petitioner’s disciplinary system, the carryover points increased the authorized discipline to a range of from a ten-day suspension to termination. See General Order 10-2.6. Under Petitioner’s disciplinary system, prior counseling is another factor relevant to the progressive discipline process, although counseling does not count toward the progressive point total. The evidence established that Respondent had been counseled previously about uses of force, in contexts bearing some similarities to this case. Respondent acknowledged that he previously was counseled by his superiors and warned about grabbing an inmate by the neck to execute a takedown. The inmate, Mr. Strempel, was also elderly and was in the same healthcare unit as Mr. Borkowski. Respondent was also counseled for a separate incident involving an inmate, Mr. Griffith, who refused to go to Advisory Court, which was the inmate’s right (just as it was Mr. Borkowski’s right to refuse to go to sick call). Respondent forced the inmate to go, engaging in a use of force to cuff the inmate. When counseled, Respondent told his superiors that he did not know the inmate could refuse. The evidence established that the disciplinary action against Respondent is consistent with the disciplinary action taken against other members who committed the same or similar conduct. Petitioner offered the unrebutted testimony of Sheriff Gualtieri that he has always imposed termination as the disciplinary consequence for other members, after it was substantiated that they engaged in the same sort of prohibited conducted as Respondent. Respondent did not offer any evidence to the contrary, to refute the Sheriff’s testimony that he has consistently applied discipline in all cases similar to Respondent’s case. Indeed, the Sheriff’s testimony was actually corroborated by Respondent, who testified that he is not aware of any other PSCO member who was found to have committed the same or similar conduct and who received a lesser form of discipline than Respondent. The Sheriff reasonably exercised his authority, within the disciplinary range authorized by General Order 10-2 and consistent with the discipline imposed in similar cases, to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Pinellas County Sheriff’s Office, enter a final order finding that Respondent, Raymond Ferrio, engaged in prohibited conduct by violating General Order 3-1.1, Rule and Regulation 5.15, and upholding the termination of Respondent’s employment. DONE AND ENTERED this 20th day of October, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of October, 2015.
The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/ In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.
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 against Respondent. DONE AND ENTERED this 12th day of March, 2013, 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 12th day of March, 2013.
