The Issue Should Petitioner discipline Respondent for her acts as a correctional officer in association with an inmate?
Findings Of Fact In response to requests for admissions, Respondent admitted the following: The Respondent was certified by the Criminal Justice Standards and Training Commission on July 6, 1992, and was issued correctional number 94229. Between June 1 and July 31, 1994, the Respondent was employed as a Correctional Officer with the North Florida Reception Center. On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Inmate Dean Richardson. (D) On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Toyia Kelly. E) On March 6, 1996, Respondent resigned her position at North Florida Reception Center. Between June 1, 1994 and July 31, 1994, Inmate Dean Richardson was committed to the North Florida Reception Center as a permanent inmate. In that period Respondent came in contact with Mr. Richardson in her capacity as a correctional officer and his capacity as an inmate at North Florida Reception Center. Their contacts occurred while Respondent was on duty as a correctional officer. In a conversation that took place between Respondent and Mr. Richardson in a recreation room within the prison, Respondent told Mr. Richardson that she was "having a problem moving." Mr. Richardson responded by offering to give Respondent money. At first Respondent declined the offer. A week to two weeks later after Mr. Richardson "pushed the issue," Respondent agreed to accept the money. Mr. Richardson had approached Respondent about a dozen times before Respondent was willing to accept the money. Under the terms of their arrangement, Respondent gave Mr. Richardson a post office box address to send the money and a name at that address. The name was Toyia Kelly. In furtherance of the agreement between Mr. Richardson and the Respondent, Mr. Richardson caused a $200 draft from his inmate bank fund to be sent to Toyia Kelly on June 8, 1994, at the address Respondent had provided . After Mr. Richardson sent the $200, he asked Respondent if Respondent had received the money. She answered "no." This conversation took place within the institution where Mr. Richardson was housed. When Respondent told Mr. Richardson she did not receive the $200, Mr. Richardson told Respondent that he would send more money. Mr. Richardson did send more money, but this time he sent the money to a different post office box than before. Respondent had provided Mr. Richardson the new post office box address. On June 24, 1994, Mr. Richardson withdrew $150 by draft from his inmate bank fund and paid it to the order of Toyia Kelly at the new post office box address. Mr. Richardson did not confirm with Respondent whether Respondent had received this $150 that had been paid directly to Toyia Kelly. Of his own volition Mr. Richardson determined to send an additional $150 by a draft from his inmate bank fund. Again this was paid to the order of Toyia Kelly at the second post office box address that had been provided by Respondent. This draft was made on July 11, 1994. On this occasion Mr. Richardson asked Respondent if she had received the second $150 draft. In response Respondent nodded her head in the affirmative.
Recommendation Upon consideration the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which revokes Respondent's correctional certificate number 94299. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sandra Griffin 2852 Wayne Drive Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Facts found by stipulation. Tangela Dorsett is certified by the Commission as a correctional officer for the Broward County Sheriff's Office. Ms. Dorsett's aunt, Vernell Williams, is deceased. Ms. Dorsett shopped at the Eckerd's Drug Store located at 17811 Biscayne Boulevard in Dade County, Florida, (Eckerd Store) on May 5, 1989. Findings of Facts based upon the hearing. Vernell Williams was a cashier employed at the Eckerd store on Friday, May 5, 1989. Ms. Dorsett went to that store with her 5-year-old daughter that day. Carol Videlman and Anne Moore, plainclothes security officers for the Eckerd store, observed Ms. Dorsett in the store that day. Both Videlman and Moore saw Ms. Dorsett with Vernell Williams in an aisle of the store. Ms. Dorsett was carrying a blue shopping basket with several items in it, and had paid for a prescription in the rear of the store. The security officers saw Ms. Dorsett approach the check out station of Vernell Williams, who motioned to Ms. Dorsett to back off when she noticed that the security officers were watching. Williams took the blue basket with Ms. Dorsett's items and placed them on the floor by the counter, and Ms. Dorsett left the store. This aroused the suspicion of the security officers. About 20 minutes later, Ms. Dorsett came back to the store. She was observed by the same security officers and by their supervisor, Raymond Rodas. She dropped off a roll of film and paid for a box of laundry detergent at Vernell Williams' register. Vernell Williams gave her a receipt for the detergent but also bagged and gave her the items Ms. Dorsett had dropped of at her first visit to the store. Ms. Dorsett did not pay for those items. Ms. Dorsett left the store with two bags in her arms. Mr. Rodas stopped her outside the store and asked her for her receipt. Ms. Dorsett did produce a receipt for a prescription purchase, but no receipt for the other merchandise which she had, which included aspirin, Tylenol, cosmetic items, soap, toothpaste, deodorant, laundry detergent and a kiddie pool. She was unable to locate the receipt for the detergent because it had been folded up in the bills she had received as change. The merchandise had a value of between 50 and 90 dollars. Rodas saw the badge of Ms. Dorsett while she was looking for her receipt in her purse. Ms. Dorsett had originally agreed to follow Rodas back into the store, and she identified Vernell Williams as the employee who rang up her purchases. As Rodas was checking Williams' register detail tape for proof of payment for the purchases, Ms. Dorsett took her bags and exited because she had an appointment to have her hair done, and Mr. Rodas was taking too long. Mr. Rodas followed, and called to her but she did not respond. He was able to take down her auto tag number. Vernell Williams admitted to Rodas that she had assisted Ms. Dorsett in a bagging the items for her without ringing them up. She made a similar statement to investigators of the Broward County Sheriff's Office, Commission Exhibit 2. Mr. Rodas reported the matter to the Dade County Sheriff. It was investigated soon thereafter by the Internal Affairs office of the Broward County Sheriff's Office. After that investigation, Ms. Dorsett was suspended without pay on May 15, 1989, and was dismissed from employment on July 13, 1989. The matter led to prosecution of Ms. Dorsett in the County Court for Dade County, State v. Dorsett, Case 89-66938. In a non-jury proceeding held on July 31, 1989, she was found not guilty by the County Judge. Ms. Dorsett maintains that she had presented two register receipts at the County Court proceeding which led to the dismissal of the charges, but that after that case was concluded, she disposed of them in the belief that she had no further need of them. Between the first and second hearing dates for this case, an effort was made to determine whether the evidence was still in the County Court's file. The evidence had been returned to Ms. Dorsett's attorney and to Eckerd Drug Store. No transcript of that proceeding was made. Based upon the testimony of all the witnesses including those who attended the County Court trial, I find that the register tapes which were presented at the County Court trial were 1)the detail tape from Vernell Williams' cash register, which was offered by the prosecution for the purpose of showing that the items in the possession of Ms. Dorsett had not been rung up by Ms. Williams; 2)Ms. Dorsett's receipt for the prescription; and 3)Ms. Dorsett's receipt for the laundry soap which she bought during her second visit to the store. Following the County Court's finding that Ms. Dorsett was not guilty of criminal conduct, she was reinstated by the Broward County Sheriff's Office in September, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Commission finding Ms. Dorsett guilty of shoplifting as alleged in the Administrative Complaint, but due to the small value of the items involved, and the previous action of the Broward County Sheriff's Office, her certification should not be suspended or revoked, but she should be placed on probation for a period of 2 years. RECOMMENDED this 26th day of July, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 26th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4586 Rulings on the proposed findings of fact made by the Commission: Adopted in Findings 3 and 4. Adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 6. Adopted in Finding 8. Adopted in Finding 8. Adopted in Finding 8. Adopted in Finding 8. Rulings on the proposed findings of fact made by Ms. Dorsett, treating the paragraphs in her proposed findings as if they had been numbered: Adopted in Finding 10. Rejected as unnecessary. Rejected as unnecessary. (1)The statements by Vernell Williams are admissable. See, Conclusion of Law. Rejected as unnecessary. Rejected because the security agents where Eckerd Drugs do not have the authority to detain people. Rejected as unnecessary. Rejected for the reasons stated in Finding 12. COPIES FURNISHED: Elsa Whitehurst, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Tangela Dorsett, pro se 2610 Fletcher Court Hollywood, FL 33020 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
The Issue The issue presented in this case is whether the disciplinary action taken against Wayne Andrews on the grounds stated in the disciplinary letter dated November 9, 1976, was for good cause. The grounds stated in that letter were negligence on the part of Andrews by allowing three (3) patients to escape from the South Florida State Hospital. At hearing the specific negligent act involved was clarified by counsel for the agency as Andrews having left the steel door between the cell area vestibule and the Nurses Station, thereby permitting the escape of three (3) patients from South Florida State Hospital.
Recommendation Based upon the foregoing findings of fact, conclusions of law, and mitigating factors, the Hearing Officer would recommend that the Career Service Commission not sustain the action of the agency because the failure to adhere to the procedures was at worst a technical violation which did not contribute to the escape. DONE and ORDERED this 26th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1977. COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614 Mr. Wayne Andrews 1681 Northest 158th Street North Miami, Florida 33162 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 =================================================================
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue The issue in this matter is whether the Pinellas County Sheriff’s Office properly dismissed Respondent from her employment as a deputy sheriff.
Findings Of Fact At all times pertinent to this matter, Respondent was employed by the Sheriff’s Office as a deputy sheriff. In 2015, Respondent was assigned to the Pinellas County Department of Detention and Corrections. She worked at the Pinellas County Jail (the “Jail”). At the time of her dismissal, Respondent had worked for the Sheriff’s Office for approximately 16 years. Bob Gualtieri is the duly-appointed Sheriff of Pinellas County, Florida, and is in command of Sheriff’s Office operations. As part of his responsibilities, Sheriff Gualtieri is authorized to impose discipline upon Sheriff’s Office employees and members who are found to have violated Sheriff’s Office rules and regulations. Sheriff Gualtieri’s authority is set forth in chapter 89-404, as amended by chapter 90-395, Laws of Florida, entitled the Pinellas County Sheriff’s Civil Service System (the “Civil Service Act”). As a deputy sheriff, Respondent was charged with the responsibility of complying with all Sheriff’s Office rules, regulations, general orders, and standard operating procedures. Respondent’s termination is based on her alleged misconduct during and after an incident on April 10, 2015, when Deputy Daunika Burge mistakenly carried her service revolver into the Jail in violation of Sheriff’s Office policies. The Sheriff’s Office determined that Respondent was aware of the presence of Deputy Burge’s sidearm in the Jail, but did not take prompt and effective action to remove or report it. Thereafter, the Sheriff’s Office believes that Respondent lied to Sheriff’s Office investigators by denying any knowledge of the pistol’s presence in the Jail. Sheriff Gualtieri terminated Respondent on August 14, 2015. On April 10, 2015, Deputy Burge was assigned to the Judicial Operations Bureau, also known as the “court squad.” Around 6:00 that morning, she was escorting several inmates through the Jail. As she was standing on F-wing, one of the inmates pointed to Deputy Burge’s side and remarked that she was still wearing her sidearm. The Jail is a maximum security facility. As such, all firearms, even for sheriff deputies, are prohibited from the premises. As Sheriff Gualtieri expressed, “the Jail is a completely sterile environment. It’s probably one of the few sacrosanct things. Because nobody has got weapons . . . no one is armed in that facility.” Sheriff Gualtieri further described, “I can’t think of anything that is more serious, that has the potential to wreak havoc and to get people killed, than to introduce a firearm into a jail setting, especially a maximum security jail setting . . . people’s lives, literally, are at risk by having that gun in there.” Lockers placed just outside the Jail entrance are designated as the storage location for all firearms. Sheriff officers are instructed to store all weapons in the lockers prior to entering the Jail. Unfortunately, Deputy Burge forgot to secure her sidearm before she entered the Jail. After realizing her mistake, Deputy Burge decided to store her weapon inside the Jail in the 1F control room, which was the closest secure location nearby. The 1F control room is the security post located inside the Jail between the “Hotel” (the inmate living area) and the exterior hallways that lead to courtrooms and other public areas. The control room is approximately twelve feet long and eight feet wide. Large glass windows line the upper half of the control room walls from approximately four feet high up to the ceiling. The 1F control room is staffed by at least one deputy at all times. To access the control room from the exterior hallways, the deputy inside the control room must remotely unlock (then relock) two control gates. Like the rest of the Jail, the 1F control room is a secure area in which weapons and ammunition are prohibited. Deputy Burge entered the 1F control room with her firearm at approximately 6:22 a.m. Two deputies, Corporal Gilberto Perez and Deputy Michelle Gammon, were present in the control room. After she entered, Deputy Burge testified that she announced to Corporal Perez and Deputy Gammon that, “I have something I shouldn’t have.” Deputy Burge then quickly removed her gun belt and pistol and moved to a small cabinet or cupboard that is located under a counter in the corner of the room. There, she placed her firearm and two magazines of ammunition into the cabinet. Deputy Burge stated that she laid her pistol and ammunition on the bottom of the cabinet and covered them with clothing that she found inside the cabinet. The cabinet was not secured and could not be locked. Thereafter, she quickly exited the control room. On that same morning, Respondent was assigned to work the day shift in the 1F control room. Her shift began at 7:00 a.m. Respondent reported to the control room just before 6:50 a.m. (approximately 30 minutes after Deputy Burge placed her pistol in the cabinet). In the control room, Respondent relieved Corporal Perez who was her night shift counterpart. The Sheriff’s Office alleges that, just before he departed from his shift, Corporal Perez informed Respondent that another deputy left a weapon in the control room cabinet. Respondent disputes this allegation. Corporal Perez was the night-shift commander of the 1F control room. Corporal Perez testified that near the end of his shift, a deputy (later identified as Deputy Burge) enter the control room. She walked passed him, and he heard her say that she had forgotten to remove her sidearm prior to entering the Jail. He then saw her kneel down in front of the cabinet in the corner of the room. He observed her place a pistol in the cabinet. Corporal Perez relayed that he heard the deputy express that she was going to leave her weapon in the control room, and she would be back to pick it up later. After the deputy left the control room, Corporal Perez opened the cabinet door and looked inside. He saw a pistol and two clips of ammunition lying on the bottom of the cabinet. Corporal Perez stated that he directly told Respondent about Deputy Burge’s weapon in the cabinet. When Respondent reported for her shift at 6:50 a.m., Corporal Perez attested that before he left the control room, he advised Respondent that a court squad deputy left her firearm in the cabinet. Corporal Perez then motioned for Respondent to walk with him to the cabinet. He opened the cabinet door in front of Respondent, and pointed to the pistol laying inside. Corporal Perez relayed that Respondent, who was standing right next to him, nodded her head. Respondent then bent down and saw the object to which he was pointing. He also showed her the ammunition. Corporal Perez had no doubt that Respondent saw the pistol. Corporal Perez then told Respondent that the deputy was returning to pick up the weapon at the end of her shift. Corporal Perez did not know who the deputy was. Therefore, he described her to Respondent. According to Corporal Perez, Respondent correctly guessed that the officer was Deputy Burge. Corporal Perez left the 1F control room approximately six minutes after Respondent entered. At the final hearing, the Sheriff’s Office introduced a security video from a fixed position surveillance camera mounted outside the 1F control room. The video camera was located in a long corridor that connected the different wings of the Jail. The camera looked across the corridor into the interior of the control room. Because the control room walls were lined with windows, most of the activity and persons moving about inside were reasonably visible and identifiable. (The video recording did not capture audio sounds or conversations.) The cabinet in which Deputy Burge stored her firearm, however, was located under a counter in one of the corners of the control room. The cabinet was not visible by the camera. Furthermore, the corner post of the control room wall blocked from view any person opening the cabinet door or looking inside. At approximately 6:50 a.m., the video recording of the 1F control room shows Corporal Perez acknowledging Respondent’s arrival. Shortly thereafter, Corporal Perez and Respondent move together to the corner of the room where the cabinet is located. Both individuals disappear from the video, effectively obscured by the corner post. Corporal Perez testified that during this brief period, he opened the cabinet door, pointed to the weapon, and Respondent bent over and looked at the pistol. The video recording corroborates Corporal Perez’s testimony that he and Respondent communicated after she entered the control room. The video also establishes that Corporal Perez and Respondent walked together to the corner of the room where the cabinet is located. However, the video does not show, outside a brief quiver of someone’s clothing, Corporal Perez opening the cabinet door or directing Respondent’s attention to Deputy Burge’s sidearm. Neither does the video confirm that Respondent peered inside the cabinet. Deputy Gammon was also present in the 1F control room when Deputy Burge entered on the morning of April 10, 2015. Deputy Gammon denied having any knowledge at the time that Deputy Burge was carrying a weapon. Neither did she observe Deputy Burge place her sidearm in the cabinet. However, Deputy Gammon did hear Deputy Burge utter something to the effect of “I have something I shouldn’t have.” Deputy Gammon was also present in the 1F control room when Respondent arrived to begin her work shift. Shortly after Respondent entered the control room, Deputy Gammon saw Respondent and Corporal Perez move together to the corner of the room where the cabinet was located. Deputy Gammon, however, did not hear Respondent’s conversation with Corporal Perez. Neither did she speak with Respondent about Deputy Burge’s weapon. According to the video recording, Deputy Burge returned to the 1F control room to retrieve her pistol and ammunition at 7:52 a.m. Respondent was not present when she entered the room. In fact, the video showed that three minutes earlier (at 7:49 a.m.), Respondent walked out of and away from the control room. (Respondent explained that she left the control room to get some coffee.) In the control room, Deputy Burge pulled her pistol out of the cabinet and placed it, along with the ammunition clips, in a black bag. She then exited the control room intending to leave the Jail. As she left the 1F control room, Deputy Burge testified that she bumped into Respondent and a deputy recruit standing just outside the control room door. Deputy Burge relayed that Respondent said to her, “I hope you’re here to get what you left earlier.” Deputy Burge replied to Respondent that she was and stated, “That’s why I have my black bag.” Respondent then inquired, “Did you get everything?” Deputy Burge conveyed that neither she nor Respondent used the word “firearm,” “gun,” or “weapon.” However, she interpreted Respondent’s statements as questions specifically concerning her pistol. Deputy Burge testified that, based on this exchange, she had no doubt that Respondent knew that her gun was in the 1F control room. As with the cabinet, the control room doorway is obscured from the video camera’s vantage point. Any persons standing outside the control room are hidden from view. Deputy Burge testified that, despite the fact that the video does not show her meeting Respondent, she did, in fact, speak with her outside the control room door. However, the video recording completely discredits and subverts Deputy Burge’s story. True to her testimony, at 7:52 a.m., the video shows Deputy Burge walking with a black bag down a corridor and into the control room. Once there, she moves across the room to the corner where the cabinet is located (disappearing from view). Soon thereafter, she walks back across the control room, through the doorway (again disappearing from view), and reemerges back in the corridor walking away from the control room. However, moments later, just after Deputy Burge disappears from view up the corridor, the video recording shows Respondent appear in the corridor, walking toward the 1F control room from the opposite direction. Respondent turns a corner, disappears from view, then walks through the control room door carrying a cup of coffee. The video provides compelling evidence that Deputy Burge did not encounter Respondent outside the control room door (much less carry on a conversation about the weapon). The video establishes that Deputy Burge did not see Respondent at any time while she was retrieving her pistol. When Deputy Burge was asked at the final hearing whether, based on the video record, she did, in fact, confront Respondent outside the control room doorway and discuss her sidearm, Deputy Burge testified that “the video shows that we didn’t . . . I did not have a conversation with [Respondent].” Deputy Burge’s mistake of carrying her sidearm into the Jail led to an internal administrative investigation, which commenced on May 1, 2015. Deputy Burge, Corporal Perez, and Deputy Gammon were all charged with violating Sheriff’s Office General Order 3-1.1, Rule 5.4, pertaining to duties and responsibilities. The investigation was conducted by the Sheriff’s Office’s Administrative Investigations Division, Professional Standards Bureau (“AID”). Sergeant Amy White was assigned to lead the investigation. One of Sergeant White’s goals was to determine who knew about the presence of Deputy Burge’s sidearm in the control room. As Sheriff Gualtieri described, anybody who had knowledge that “a loaded firearm is within that environment, should immediately — must immediately take action to determine if it has occurred. And if it has, to take swift remedial action.” Therefore, Sergeant White initiated her investigation to determine whether Corporal Perez and Deputy Gammon failed to take action or notify anyone of the situation. On May 22, 2015, AID questioned Respondent as a witness to the incident. Three AID sergeants met with Respondent to determine what, if anything, she knew about the presence of Deputy Burge’s weapon in the 1F control room on April 10, 2015. As the questioning began, Respondent remarked, “Are you talking about the gun, or do you mean the gun[?]” Prior to Respondent’s statement, Sergeant White had not made any comments to Respondent about a gun, firearm, or weapon being the subject of the investigation. Consequently, Sergeant White interpreted Respondent’s unsolicited comment to mean that Respondent had learned that Deputy Burge had left her pistol in the control room at the time it happened (April 10, 2015) and from no other source after April 10, 2015. One of the AID investigators then directly asked Respondent if she knew that a gun had been brought into the 1F control room. At the final hearing, Sergeant White described Respondent’s response as, “she, you know, then kind of tilted her head, and got this kind of, for lack of a better term, smile or smirk on her face. And said may — stated maybe. . . .” This reaction confirmed in Sergeant White's mind that Respondent knew about the presence of Deputy Burge’s sidearm in the control room on April 10, 2015. That same day (May 22, 2015), the Sheriff’s Office changed Respondent’s status to a subject of the investigation. The complaint of misconduct filed against Respondent alleged that on April 10, 2015, she violated General Order 3-1.1, Rule 5.4, pertaining to duties and responsibilities. (The same charge the Sheriff’s Office filed against Deputy Burge, Corporal Perez, and Deputy Gammon.) On June 16, 2015, Respondent made a sworn statement to AID. In her statement, Respondent denied any knowledge of the presence of Deputy Burge’s sidearm in the 1F control room on April 10, 2015. Respondent specifically expressed that Corporal Perez did not tell her that Deputy Burge brought her gun into the control room. Respondent explicitly stated that “Nobody specifically told me that there was a weapon in that control room,” and that she was “totally unaware of a weapon.” The Sheriff’s Office believed that Respondent’s sworn statement directly contradicted the statement she made during her initial interview on May 22, 2015, in which she said the word “gun” and then tilted her head and kind of smirked. Therefore, the Sheriff’s Office concluded that Respondent’s sworn statement on June 16, 2015, was a lie. Consequently, on June 24, 2015, the Sheriff’s Office supplemented Respondent’s initial complaint of misconduct with another complaint. This second complaint added the allegation that on, but not limited to, June 16, 2015, Respondent violated General Order 3-1.1, Rule 5.6, pertaining to truthfulness. In the course of its investigation, AID compiled an investigation record. This record was provided to the Sheriff’s Office’s Administrative Review Board (the “ARB”) which considered the complaints of misconduct against Respondent. The ARB was a five-person panel composed of members of Respondent's chain-of- command. The ARB was charged with reviewing the evidence and resolving issues of disputed fact. Thereafter, the ARB would make a recommendation to Sheriff Gualtieri regarding the disposition of the matter, as well as any discipline that should be imposed. Sheriff Gualtieri would then decide whether to follow the ARB's recommendation, and what discipline, if any, the member was to receive. The ARB reviewed AID’s investigation record including statements made by the witnesses. The ARB also heard live testimony from Respondent, as well as the other deputies charged with misconduct. Thereafter, the ARB substantiated both complaints of misconduct against Respondent. On August 14, 2015, Sheriff Gualtieri issued an Inter- office Memorandum to Respondent. Sheriff Gualtieri relayed that the ARB determined that Respondent committed the following violations of General Order 3-1.1: You violated Pinellas County Sheriff’s Office General Order 3-1.1, Rule and Regulation 5.4, Duties and Responsibilities: Synopsis: You relieved the night shift 1F Control Room post and were advised that a firearm had been left in a lockless cabinet, in that control room, by another deputy. The loaded and charged gun, accompanied by two full magazines, was displayed to you and you acknowledged its presence in the unsecured cabinet. You took no action to rectify this acute situation. To compound this integrity compromise of the maximum security facility of the Pinellas County jail, you were also acting in the capacity of Field Training Officer. You and your recruit were notified of the presence of the gun and discussed it in the control room. You misled your recruit with flippant and impotent remarks. You had an obligation, not only to restore security, but to teach your trainee proper and effective security measures. You failed to fulfill these responsibilities. You violated Pinellas County Sheriff’s Office General Order 3-1.1, Rule and Regulation 5.6, Truthfulness: Synopsis: You affirmed, to three Administrative Investigation Division (AID) Sergeants, that you were aware of the presence of a gun in the 1F Control Room while you were assigned to and accountable for the security of that control room. Consequently, you were identified as a subject in this case. During your subject interview, you provided testimony which contradicted the statements you originally made to the AID investigators. When presented with this conflict, you denied making the statements to the three investigators. Four (4) additional staff members, two of whom were equally culpable for this incident, consistently attested to your awareness that a firearm was carelessly stored in the control room. In the same interview, you, again, denied being notified of the presence of the weapon and made counter accusations against some of the members. In a second subject interview, this being your third meeting with AID investigators, you maintained your denial and repeatedly swore that witness testimony was false and made “no sense.” To the contrary, however, witness’ testimonies were logical and independent yet consistent and they were supported by recorded video of this incident. At your Administrative Review Board, you were, again, presented with witness testimony and video evidence which bore stark contrast to your sworn statements. Your replies to direct questions from the Board were evasive, and insufficient to prove your candor in this case. In essence, Respondent was alleged to have been aware that a weapon was brought into the 1F control room against regulations, and she took no action to rectify the situation and restore security. Thereafter, Respondent was not truthful in that she lied to Sheriff’s Office investigators by denying that she knew about the presence of the firearm in the control room. Sheriff Gualtieri “substantiated” the ARB’s findings. Sheriff Gualtieri explained at the final hearing that he reached his conclusion based on the “abundance of evidence that was presented to me that indicated that she knew the gun was there, and denied it.” Sheriff Gualtieri did not conduct an independent investigation into the incident, or Respondent’s involvement in the same. Sheriff Gualtieri did not read the investigation documents themselves or witness statements. (He never takes that step.) Sheriff Gualtieri did not speak to Respondent about what happened on April 10, 2015. Instead, Sheriff Gualtieri met with the members of the ARB and was briefed on the evidence and the ARB’s recommendation.6/ Sheriff Gualtieri based his decision on “the volume of the evidence” against Respondent, specifically: During her May 22, 2015, interview with AID, Sheriff Gualtieri found it significant that Respondent “initiated the inquiry about the gun. [The AID investigators] didn't say gun to her. She said gun to them.” Sheriff Gualtieri concluded that Respondent knew about Deputy Burge’s mishandling of her pistol and “once it became evident to Respondent that she might have some culpability for knowing about the firearm, she changed her story and began denying any knowledge of it.” Sheriff Gualtieri found it significant that “all these people . . . said that they knew that [Respondent] knew about the gun . . . you have all of the totality of several people saying that.” Sheriff Gualtieri did not personally speak with any witnesses involved in AID’s investigation. Instead, he relied on what he was told the witnesses admitted to the investigators. In reaching his conclusion to terminate Respondent, Sheriff Gualtieri specifically referenced statements given by Deputy Burge and Corporal Perez who asserted that they expressly told Respondent that Deputy Burge had left her sidearm in the cabinet.7/ Sheriff Gualtieri also referenced the video recording which he believed corroborated Corporal Perez’s testimony. He commented that “there’s a video of Perez with her at the cabinet where the gun is stored.” Sheriff Gualtieri did not view the video. However, he described that he understood it showed Respondent “bending over and looking to a storage area where the gun is stored.” Thereafter, Sheriff Gualtieri took all of the evidence gathered to that point including “the numerous statements by numerous deputies that they personally told her; they either heard somebody tell her, et cetera. And, then the video, with her looking in the cabinet where the gun was, that I concluded that she did have knowledge.” Sheriff Gualtieri also commented that Respondent had ample opportunity to reconsider her denial of knowledge of the weapon’s presence and tell the truth. Instead, Respondent continued to refuse “to do the right thing.” Consequently, on August 14, 2015, Sheriff Gualtieri sustained the complaint against Respondent. Sheriff’s Office General Order 10-2, Disciplinary Procedures, establishes disciplinary guidelines for the Sheriff’s Office. Violations of Sheriff’s Office standards of conduct are categorized into five distinct levels which range from Level 1 to Level 5. Level 5 violations result in the most serious discipline. Pursuant to General Order 3-1, violations of Rule 5.4, Duties and Responsibilities, and Rule 5.6, Truthfulness, are Level 5 violations. According to the General Order 10-2 point scale, 60 points were assigned for Respondent’s two Level 5 violations. On the disciplinary scale, the discipline that the Sheriff may impose for 60 points ranges from a minimum suspension of seven days up to termination from the Sheriff’s Office. Sheriff Gualtieri determined that the appropriate discipline for Respondent’s two rule violations was to terminate her employment. On her progressive discipline worksheet, Sheriff Gualtieri wrote that Respondent was terminated “because of lying.” Sheriff Gualtieri explained at the final hearing: [T]he most serious part of the allegation, which was the most concerning part of the facts to me, was the lying . . . . I will not tolerate, and have never tolerated a deputy sheriff lying and not telling the truth. There’s nothing that is more important than our veracity and our credibility, individually. And, everybody in the agency knows, or should know . . . that if a determination is made, based upon the facts, that you lied, you’re not going to work at the Pinellas County Sheriff’s Office. Sheriff Gualtieri further explained: There’s nothing more important than your candor — than your character. And, it really brings discredit on an individual [and] the agency. . . . It really prevents you from being an effective deputy sheriff. Because you’re going to get called in — everything you do, is going to get called into question. . . . So, very simply . . . the underlying conduct is in one bucket, and would have been dealt with separately. Then, you add the lying onto it. And, the lying is what resulted in the termination. Sheriff Gualtieri testified that he has terminated every Sheriff’s Office deputy who has been found to violate the policy requiring truthfulness. As he succinctly stated at the final hearing, “Everybody that I have determined that has lied, I fired them.” Sheriff Gualtieri also substantiated the ARB’s findings that Deputy Burge, Corporal Perez, and Deputy Gammon violated General Order 3-1.1, Rule 5.4, Duties and Responsibilities. Sheriff Gualtieri explained that he would have expected these deputies to take immediate, swift action to remove the gun from the Jail. Based on their violations, Sheriff Gualtieri suspended Deputy Burge for 120 hours and reassigned her from the court squad to the Jail. Corporal Perez was suspended for 40 hours and demoted from corporal to deputy (which is the loss of a supervisory rank). Deputy Gammon was suspended for 40 hours. None were terminated. Sheriff Gualtieri expressed that while these deputies made a mistake, none of them lied about the situation. None were charged with violating General Order 3-1.1, Rule 5.6, Truthfulness. Respondent asserts that she was wrongfully terminated. At the final hearing, Respondent staunchly denied that she knew of the presence of Deputy Burge’s firearm in the 1F control room on the day in question. Respondent also disputed that she lied in her sworn statement on June 16, 2015, when she denied any knowledge that Deputy Burge brought her pistol into the control room. Respondent further refuted having any conversation with Deputy Burge outside the control room door on the morning of April 10, 2015. (The surveillance video supports Respondent’s testimony.) Respondent admitted that she had a brief conversation with Corporal Perez when she reported to the 1F control room to start her shift. However, she denied that Corporal Perez notified her that a weapon was in the cabinet. She further denied that he pointed out the pistol to her, or that she bent down to look into the cabinet to see the weapon. At the final hearing, Respondent commented about her statement during the May 22, 2015, interview during which she uttered the word “gun.” Respondent explained that her remark was based on the “gossip” and “rumor and innuendo” that she had heard about the incident. Respondent also challenges the fairness of Sheriff Gualtieri’s decision to terminate her while the other three deputies remain with the Sheriff’s Office. Deputy Burge actually caused the trouble by wrongfully bringing her sidearm into the Jail. Yet, Sheriff Gualtieri allowed her to keep her job. Respondent also pointed out that, because Corporal Perez was aware of the weapon’s presence in the control room (prior to her arrival), he should have assumed primary responsibility for reporting and removing it. Therefore, even if Respondent did err in not timely communicating the pistol’s existence in the Jail, Corporal Perez was more negligent by not immediately securing the weapon. Sheriff Gualtieri, however, also allowed him to keep his job. Finally, Respondent testified regarding two other deputies who she believed the Sheriff’s Office punished inconsistently. Respondent represented that both Detention Deputy Alexandra Zuloaga and Deputy Jeanette Pettiford violated the Sheriff’s Office rules for truthfulness, but were not terminated.8/ However, the Sheriff’s Office presented evidence that neither of these “comparators” were punished for the same rule violation as Respondent. Deputy Zuloaga was disciplined for loyalty, not “truthfulness.” Similarly, a charge of untruthfulness was not substantiated against Deputy Pettiford. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Sheriff’s Office sufficient factual and legal “cause” to dismiss Respondent. Consequently, the Sheriff’s Office met its burden of establishing sufficient grounds to terminate Respondent from her position as a deputy sheriff.
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, Cynthia Graham, violated General Order 3-1.1, Rule 5.4, Duties and Responsibilities, and Rule 5.6, Truthfulness. It is further RECOMMENDED that Sheriff Gualtieri’s decision to terminate Respondent from her employment with the Pinellas County Sheriff’s Office be sustained. DONE AND ENTERED this 19th day of July, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of July, 2017.
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
Findings Of Fact The Petitioner testified in his own behalf, admitting that he had failed to answer Question 13, "Have you ever been arrested?" honestly. He stated that he had been embarrassed to put down the fact that he had been arrested. He stated that he had applied for the position as an unarmed security guard with Oxford Security Services thinking that it would be a temporary position. However, since his employment he has been promoted to safety coordinator, salesman and supervisor/operations manager of the company's operations in the Jacksonville area. The applicant was first employed in June of 1979. He stated that he needed to be licensed in order to maintain his present position. The applicant explained his arrest in 1963 and in 1977. His arrest in 1963 was for larceny and arose from taking money belong to the company by which he was employed and purchasing a car with it. The court withheld adjudication and placed the applicant on probation for five years. During that time he married and left the State of Florida in violation of the terms of his probation. In 1977, the applicant was employed in Jacksonville, Florida, as a used car salesman. After a 24-hour sale-athon, the applicant began bar-hopping and ended up in a topless go-go club. His next conscious recollection was waking up in the Duval County jail, where he was advised that he was charged with lewd and lascivious conduct. He had no knowledge of the conduct which gave rise to his arrest. The Duval County court advised the applicant to enter a plea of nolo contendere and be transferred to Miami court for disposition of the applicant's offense of parole violation. The Duval County court sentenced the applicant to two days for lewd and lascivious conduct, during which time he was transferred to the Dade County courts. The charges of violating parole in Dade County were dismissed. The applicant further explained his arrest for passing a worthless bank check. The applicant stated that he had overdrawn his account unknowingly in 1971. He was arrested and paid off the overdraft, and the charge was dismissed. The applicant stated that his employer was not aware of his arrest record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the applicant's application for a Class F, unarmed guard license be denied; however, that the applicant be afforded the opportunity to refile his application with full disclosure, and that in the absence of any other disqualifying grounds said reapplication be approved. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Wayne M. Chadwick 865 Lane Avenue, #703 Jacksonville, Florida 32205 =================================================================
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of June, 2019.
