Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
The Issue The issue in this case is whether respondent's licenses as a registered air-conditioning contractor and registered sheet metal contractor should be disciplined for the reasons given in the amended administrative complaint filed on July 10, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Charges At all times relevant hereto, respondent, Nicholas Donald Bacca, was licensed as a registered air-conditioning contractor and a registered sheet metal contractor, having been issued license numbers RA 0055337 and RS 0049354 by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was the qualifying agent for Nick Bacca Solar/Air Systems. He operated his business from his residence located at 4559 Fulton Avenue, Jacksonville, Florida. On the weekend prior to May 6, 1991, nine large air-conditioning units having a value of around $12,000 were stolen from the Atmore, Alabama Lions Community Center. The identification numbers of the units were immediately given by local police to the National Crime Information Center. Acting on information received from one of the apprehended theives, on May 14, 1991, a search warrant was obtained by the Duval County Sheriff's Office to search respondent's property at 4559 Fulton Avenue, Jacksonville, Florida. All nine units previously stolen in Atmore, Alabama were found in respondent's possession. It can be reasonably inferred from the evidence that respondent knew the units were stolen and that they could be used in his contracting practice. It is further found that by engaging in the foregoing conduct, respondent is guilty of misconduct in the practice of contracting. Respondent was charged with nine second-degree felony counts of violating Section 812.019, Florida Statutes, which makes unlawful the act of dealing in stolen property. On August 29, 1991, respondent entered a plea of no contest to one count of violating Section 812.019, Florida Statutes. Adjudication was withheld by the court, respondent was placed on fifteen months community control, and prior to the expiration of his community control, he was required to make restitution in the amount of $8,371.16. He was also required to pay $220.00 in court costs. For the purpose of determining an appropriate penalty, several aggravating circumstances come into play. First, in terms of the severity of the offense, respondent pled guilty to a second degree felony, punishable by state law by imprisonment for up to fifteen years in state prison. Further, the stolen property in respondent's possession could have been sold to unwitting members of the public with adverse consequences upon those persons. Finally, given the nature of the offense, a penalty having a potential deterrent effect on other contractors may be appropriate. On the other hand, there is no evidence that respondent has been disciplined by the Board on any other occasion. In investigating and prosecuting this action, petitioner has incurred costs to date in the amount of $3,745.42. This amount was established by affidavit and was not contested. Failure to Appear at Hearing Although respondent's counsel received a copy of the notice of hearing issued on August 22, 1995, which scheduled a hearing on September 26, 1995, and a second notice issued on September 18, 1995, giving the specific location of the hearing, he did not appear at final hearing. He has never filed a motion for continuance with the undersigned, or otherwise contacted this office to advise that he would be unable to attend the hearing. At the close of the business day prior to the hearing, respondent's counsel's office telefaxed to opposing counsel a motion for protective order and motion to strike notice of hearing. The document was not served on the undersigned. In the motions, counsel moved to strike the notice on the grounds he had not been given reasonable notice of hearing and the hearing date of September 26 had not been cleared with his office. He further cited R. Crim. P. 3.132(c) and advised he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing. The motions were opposed by petitioner. After petitioner furnished the undersigned with a copy of the motions at final hearing, which were treated as a motion for continuance, the motions were denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty as charged in Counts I and III of the amended administrative complaint, revoking his license, and requiring him to pay $3,745.42 in costs incurred by the Board in investigating and prosecuting this action. Count II should be dismissed. DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1364 Petitioner: Petitioner's proposed findings of fact have been adopted in substance in this Recommended Order. COPIES FURNISHED: Elizabeth C. Masters, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211 Thomas A. Boyer, Jr., Esquire 390 North Orange Avenue Suite 1890 Orlando, FL 32801-1642 Mr. Nicholas D. Bacca 4559 Fulton Avenue Jacksonville, FL 32207 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
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 Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER 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 13th day of August, 1993.
The Issue Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================
The Issue Whether or not Respondent failed to maintain the qualifications required of a correctional officer by failing to maintain good moral character, to wit, unlawfully and knowingly aiding and abetting an inmate confined at the Zephyrhills Correctional Institution to attempt to escape from such confinement on or about September 23, 1987, 1/ and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Mary A. Jackson, was trained and employed as a police officer by the Valdosta Georgia Police Department, a position she held from 1979 to 1985. Respondent relocated from Georgia to Florida during 1986. Respondent was certified as a correctional officer by the Criminal Justice Standards and Training Commission (Petitioner) on June 16, 1986 and was issued certificate number 41-86-502-03. During times material hereto, Respondent was employed by the Florida Department of Corrections as a correctional officer and was assigned to Zephyrhills Correctional Institution (ZCI). During September 1987, Robert Bridges and Charles Jeffrey were inmates incarcerated at ZCI residing in the "E dormitory". On approximately September 12, inmates Bridges and Jeffrey began discussing plans for an escape from ZCI. Their initial plan was to meet in the prison chapel and change out of their prison uniforms into street clothing which Respondent would provide. They would then mingle with prison visitors and exit the gate posing as visitors. This was to be done at a time when Respondent was in control of gate access. Inmate Bridges observed a personal relationship between inmate Jeffrey and Respondent during September 1987. This was evidenced by Respondent's visits with Jeffrey in the dorm for unusually long periods of time and their utilization of a method of communication by flashing lights at one another. Also during this period, inmate Bridges observed Jeffrey with a photo of Respondent dressed in a bikini bathing suit. Bridges and Jeffrey's initial plan was scuttled and they in turn agreed on a second escape plan whereby Respondent would provide them with a key to an exit door of "E" dorm. This door was nearest the fence and their plan was to exit the door under cover of darkness and scale the fences at a time when Respondent would be the only guard on that portion of the fence. Respondent and Bridges discussed this plan although Respondent expressed apprehension about going through with it. On September 22, inmate Bridges observed inmate Jeffrey and Respondent tossing an object back and forth to one another across a fence. Respondent stood outside the fence and Jeffrey stood inside the compound during this exchange. Bridges and Respondent also openly flirted with each other. For those reasons, Bridges felt that this behavior compromised the secrecy of the escape plan and he decided to back out. Although Bridges initially intended to attempt to escape with Jeffrey, he abandoned the plan and instead informed ZCI's authorities. Bridges was convinced that the escape would fail, resulting in the possibility of additional prison time beyond that which he was already serving. Bridges was also apprehensive that if he failed to report the plan and merely declined to participate, inmate Jeffrey would unsuccessfully attempt the escape and when it failed, Jeffrey would implicate him as a co-conspirator and he would suffer identical consequences for not divulging the plan to ZCI's security staff. On September 23, inmate Bridges requested a meeting with Lt. Wayne Hutto, an investigator at ZCI. Bridges first discussed the escape plans with Lt. Hutto and he thereafter reported the same information to Major Sammy Hill, head of security at ZCI. After discussing the escape plan with Hill and Hutto, they instructed inmate Bridges to go forward with the plan and to accept any keys given him by Respondent. Inmate Bridges was also instructed to give a prearranged signal when he received the key whereupon a correctional staff member would confiscate it. Inmate Bridges concealed his cooperation with ZCI authorities from inmate Jeffrey and the Respondent. During the evening of September 23, inmate Jeffrey reported to the prison chapel where he was assigned as chapel clerk. Jeffrey met Bridges in the chapel's office. On that day, Respondent reported to duty and was assigned to work in the institution's gatehouse control room with Sgt. Rhodene Mathis, the control room supervisor. Throughout the evening on September 23, Respondent appeared nervous and she was preoccupied with matters other than her work. As example, Sgt. Mathis assigned her to type some forms. Mathis examined the forms at a time when they should have been completed and discovered that Respondent had not started her assignment. Respondent telephoned the chapel from the control room approximately three times between her arrival at 4:00 p.m. and 7:25 p.m. On each of these occasions, Bridges would answer. Respondent in each case, asked Bridges to speak with "Nikki" whereupon Bridges gave the phone to Jeffrey. During one of the phone calls, Sgt. Mathis was out of the control room. When she returned, Respondent abruptly ended the call to Jeffrey. During one of the calls, Jeffrey told Respondent that he wanted the key and to let him and Bridges know when Sgt. Mathis was gone so that Bridges could come over and get the key from her. Sgt. Mathis departed the control room leaving Respondent alone at approximately 7:25 p.m. Her stated purpose in leaving at this time was to check on inmates in the institution's fire station. Upon her departure, Respondent immediately called the chapel and informed Bridges and Jeffrey that she was alone. Inmate Bridges walked to gatehouse from the chapel and Respondent, contrary to normal practice, released the remote gate lock mechanism and admitted inmate Bridges into the gatehouse without him asking, in advance, to declare his business in the gatehouse. Once inside the gatehouse, inmate Bridges made his way to the area immediately outside the control room. Once Respondent observed inmate Bridges from her position inside the control room, she looked to see if anyone was watching her. Respondent wrapped a key in a paper napkin and passed it to inmate Bridges through a security drawer. The key, identified as RE141-307, was the key which had been stored in a lock box in "E" dormitory. It would open the rear exit door of "E" dormitory and would assist inmates Bridges and Jeffrey in making a night escape over the fence behind "E" dormitory. This was a key which ordinarily an inmate of ZCI would be unable to obtain. As a correctional officer, Respondent had access to the key. Bridges took the key that Respondent wrapped in the napkin, placed it in his pocket and exited the gatehouse. Once outside, inmate Bridges gave a prearranged signal to Sgt. Levy Roberts, who had been designated to assist in aborting the plan by Major Hill and Lt. Hutto. Upon seeing the signal, Sgt. Roberts approached inmate Bridges and retrieved the key and napkin from Bridges. Sgt. Roberts handcuffed inmate Bridges and led him to "E" dormitory. Soon thereafter, Respondent learned that inmate Bridges had been intercepted by Sgt. Roberts. Upon learning of Bridges' interception, Respondent exhibited an unusual amount of curiosity as to the nature of Bridges interception. Respondent called a fellow officer and requested permission to leave her post to ascertain why Bridges was being held by Sgt. Roberts. This was an extraordinary request under the circumstances. Respondent's concern was her complicity in the escape plan. As agreed, Sgt. Roberts immediately telephoned Major Hill and Lt. Hutto and advised them that he had retreived the key from Bridges. Thereafter, Sgt. Roberts approached the gatehouse and signaled to Sgt. Mathis that he had recovered the key. Respondent, who was still in the gatehouse, immediately asked Sgt. Mathis for permission to leave her duty station. Later during the evening of September 23, Respondent was questioned by Major Hill and Lt. Hutto. Respondent provided a statement voluntarily without any promises, threats or coercion from either Hill or Hutto. During her statement, Respondent initially denied any involvement with Jeffrey or giving Bridges a key. However, later during her statement Respondent admitted giving Jeffrey the number of a pay phone located near her home and to receiving at least two personal calls from Jeffrey at the pay phone. Respondent admitted to accepting a collect call from Jeffrey on her home phone and she paid the tolls for the two calls which were made from Jeffrey to her at a pay station near her home. Also, Respondent admitted having previously discussed a plan for inmates Jeffrey and Bridges to escape involving the key to exit from "E" dormitory. Respondent ultimately admitted allowing Bridges to take a key from a ring located in the pass-through drawer in the guardhouse control room. At approximately 11:00 on September 23, Respondent returned to the gatehouse control room whereupon Sgt. Mathis asked her what she had done. Respondent replied that she had "really screwed up" and began crying. Upon further inquiry by Sgt. Mathis, Respondent told her that she had given Bridges a key because her safety and that of her children had been threatened by the inmates at ZCI. Although Respondent had confided in Sgt. Mathis of some personal problems prior to that time, she did not previously discuss any threats to Sgt. Mathis. On September 25, Tony Perez, a Department of Corrections prison inspector, interviewed Respondent. Respondent was advised of her constitutional rights under the Miranda decision and she agreed to answer questions voluntarily. Inspector Perez did not make any promises nor did he threaten or coerce Respondent to provide him a statement. During the early stages of the interview, Respondent related that she had three children, was divorced and that inmate Jeffrey asked her to assist him in escaping from ZCI such that he could accompany her to the Bahamas. During that statement, Respondent claims that she told inmate Jeffrey that she would not help him escape and that he could "get out on [his] own." (Petitioner's Exhibit 3, page 9.) Respondent admitted giving inmate Jeffrey the number of a pay telephone, thereafter receiving calls from him and discussing his aspirations to escape from ZCI. During Perez' interview of Respondent, she admitted that inmate Jeffrey asked her to get a "main key" and provide it to him. She also related other escape plans that she and inmate Jeffrey discussed. Respondent related receiving telephone calls from Jeffrey while he was assigned to work in the institution's chapel. Respondent also described giving inmate Bridges a napkin at the time she gave him a key from the sliding security pass-through drawer of the control room. (Petitioner's Exhibit 3, pages 23-25.) Although Respondent initially maintained that if inmate Bridges took a key away from the control room, this was done without her knowledge, she finally conceded that she knew Bridges had taken a key, but insisted that it was a key from one that she randomly selected and removed from ring number 4. A subsequent audit of ring 4 disclosed no missing keys. Respondent also admitted that she phoned a fellow inmate about inmate Bridges interception by Sgt. Roberts. At the conclusion of the Respondent's interview with inspector Perez, she resigned her position as a correctional officer at ZCI. During her resignation, Respondent told Major Hill that she had made a big mistake and had ruined her career. Respondent cried uncontrollably and threatened suicide. She ultimately regained her composure and left the institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's law enforcement certificate number 41-86-502-03. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 27th day of March, 1991.
Findings Of Fact Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections. The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The memorandum is directed to all inmates and relates to visiting procedures. It provides: Effective Saturday, March 6, 1982, inmates will no longer be permitted to receive visitors on both Saturday and Sunday of the same week. Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor. This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably. The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public. The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides: The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary. Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1: Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day. The directive provides at Paragraph V.B.: There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis. This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive. Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
