The Issue Whether cause exists to suspend Respondent for 60 days without pay.
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1 through 47 below1/: Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of the PCSO and is responsible for providing law enforcement and corrections services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline in accordance with the Civil Service Act, upon PCSO members/employees who are found to have violated rules or regulations of the PCSO. At all times pertinent to this case, Respondent was employed by the PCSO as a Deputy Sheriff. As a Deputy Sheriff, Respondent was charged with the responsibility of complying with all applicable state laws and PCSO rules, regulations, and standard operating procedures. Respondent is familiar with the General Orders and standard operating procedures with respect to the PCSO generally, and in detention and corrections specifically. Respondent has been employed by the PCSO for approximately 24 years. Respondent has been employed as a deputy with the Detention and Corrections Bureau approximately nine years. [Lt.] Darrell Spiva is assigned to the Administrative Investigations Division of the PCSO. [Lt.] Spiva investigated concerns raised by Respondent's supervisors arising from a Christmas party that Respondent had for inmates who were under her supervision at the jail. In the Correction and Detention Bureau of the PCSO, Respondent's primary function is to ensure the care, custody and control of inmates. Respondent's specific responsibility is to supervise the inmates in the area of the jail where Respondent is assigned during a particular shift. As part of Respondent's job duties in her assignment as a deputy, Respondent is required to conduct well-being checks every 30 minutes, at a minimum, on each inmate in Respondent's assigned area. Respondent is required to document the completion of the well-being checks. Completion of the well-being checks is required to be documented in the official records of the PCSO using the jail's inmate management system. The inmate management software is commonly referred to as "JIMS." Respondent is familiar with a memorandum issued on April 11, 2011 (Memorandum), by Sheriff's Gualtieri's predecessor, Sheriff Coats, directed to all detention and corrections personnel regarding proper care, custody, and control of inmates. The subject line of the Memorandum reads, "automatic 30 day suspension without pay." The Memorandum was understood by Respondent to emphasize that in order to carry out the PCSO's legal and ethical responsibilities, it is imperative that deputies check on inmates. Deputies are to check on inmates in accordance with accreditation standards and requirements of the General Orders of the Sheriff. The Memorandum explained that there had been a pattern of violations by deputies not completing the required checks. The Memorandum indicated that deputies had not been completing the required well-being checks and then falsifying records to reflect they had completed the checks. According to the Memorandum, a new minimum penalty of 30-days unpaid suspension would be imposed for future violations. According to the Memorandum, the new minimum penalty was to be effective on April 11, 2011. On December 2, 2011, Respondent was assigned to supervise an area within the jail's central division designated "Pod 4C4." Pod 4C4 contained 16 cells on two levels around a common area on the lower level. During Respondent's shift, Pod 4C4 contained somewhere between 48 to 60 female inmates. The pod is designed to be managed by the direct supervision of a single deputy. The deputy is stationed at a work area within the pod. The work area is located in the front of the pod on the lower level. A person standing on the lower level of the pod cannot see into all the cells on the upper and lower level without moving up to the upper level and walking throughout the pod. There are certain recessed areas--vestibules, bathrooms, etc.--that are not entirely visible unless a deputy walks around the pod. It would not be a complete well-being check if Respondent did not go to the upper level of the pod. It takes somewhere under five minutes for a deputy, if not interrupted, to make the walk that constitutes a well-being check. On Respondent's overnight shift, which would have been from 6:00 p.m. on December 22, 2011, to 6:00 a.m. on December 23, 2011, Respondent made computer entries to indicate that she had performed well-being checks at certain times. JIMS records indicate that Respondent made well-being checks on the days in question at 1837 hours, 2054 hours, 2123, 2151, 2225, 2246, 0024, 0049, 0118, 0147 and 0218 hours. Pursuant to the Sheriff's General Orders the Administrative Review Board (ARB) met, reviewed the disciplinary file, questioned the Respondent, gave the Respondent an opportunity to make a statement and subsequently determined that based on the preponderance of the evidence, Respondent had violated the Sheriff's rules. General Order 10-2 covers disciplines and ranks certain offenses. General Order 10-2 ranks offenses from Level 1 to Level 5. Level 1 offenses are the least severe, and Level 5 offenses are the most severe. The General Orders set forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The ranking of certain offenses, the procedure for assigning points for each sustained violation and the range of punishment are all set by the General Orders. The point total for the two sustained violations found by the ARB in Respondent's case is 60. The discipline range for a violation resulting in 60 disciplinary points is from a minimum of a seven-day suspension up to, and including, termination. Sheriff Gualtieri imposed a suspension of 30 days, or 240 hours, without pay against Respondent. The imposed suspension of 30 days, or 240 hours, without pay is the penalty provided for as a minimum in the Memorandum. Respondent did not make any correcting entries to document that well-being checks she intended to complete were never made. If Respondent made entries in the Sheriff's official records that well-being checks were performed and the well-being checks were not made, these recorded entries are false. Although the JIMS system indicated that Respondent made well-being checks at the times set forth in paragraph 34 above, video surveillance confirmed that Respondent did not actually make several of the well-being checks as indicated. Respondent admits that she logged each of the 11 entries into JIMS and that she failed to conduct well-being checks for the times entered at 2123, 2225, 0049, 0118, 0218 and 0244 hours. According to Respondent, the established practice in Pod 4C4 is to note in JIMS that a particular well-being check was done prior to actually conducting the check. Following this practice, Respondent should have conducted the well-being checks within a reasonable time after entering the times into JIMS; but she did not. Because Respondent failed to conduct the well-being checks as required, this failure resulted in the JIMS entries being false. Respondent asserts that she was distracted during the times in question because she was thinking about Christmas and her mom's 95th birthday. Respondent assertion of being distracted is not credible. If Respondent was able to repress her distracting thoughts long enough to make six entries in JIMS attesting to well-being checks that she intended to do, then she should have also been able to curb those same distracting thoughts long enough to actually conduct the required well-being checks. Respondent admits that there was no emergency or disturbance among the inmates that physically impeded here ability to complete the required checks, and in the absence of such circumstances, Respondent should have completed each of the checks. Respondent intentionally failed to conduct the well- being checks at issue, and she knowingly caused false entries to be made in the JIMS tracking system.
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, Dolores Taylor, violated General Order 3-1.1, Rules and Regulations 5.4 and 5.14(c), and suspending Respondent for a period of 30 days (240 hours) without pay. DONE AND ENTERED this 10th day of September, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 10th day of September, 2012.
The Issue The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Respondent was certified as a corrections officer under Certificate No. 502-5580. The Criminal Justice Standards and Training Commission is the agency in this state responsible for the certification and regulation of the conduct corrections and law enforcement officers in Florida. On June 24, 1992, at approximately 11:45 PM, Officer Bryant K. Doyle, a four and a half year veteran of the Orlando Police Department, came across Respondent sitting in his car in a warehouse district near the 400 block of West Grant Street in Orlando. He called for backup by another unit, but before that unit arrived, the Respondent's vehicle, in which Respondent was accompanied a female, came toward him. Doyle stopped and approached the vehicle and at that time recognized Respondent from a prior contact which had occurred several months earlier. At that time, Doyle had come across Respondent in a car late at night in the same general area, again accompanied by a female. At that time, Respondent claimed he was a janitor but also showed Doyle a corrections officer certification card. On the second occasion, because Respondent had no identification with him, Doyle ran a routine identification check and found no prior arrest record. Though he did not know the person with Respondent, he claims Respondent implied she was a prostitute. She has an arrest record in Orange County, Florida but no evidence was produced as to what the arrests were for. Doyle asked the woman to step out of the car and, taking her behind the car, questioned her. Doyle claims she indicated Respondent had picked her up and had paid her $10.00 to fondle herself. She identified herself as Ms. McKie, who resided on Michael Avenue in Orlando. Doyle contends the interview of Ms. McKie lasted for four or five minutes. Officer Doyle then called in the information he had received from Ms. McKie and placed Respondent under arrest for solicitation of prostitution. On each occasion, at the scene, according to Doyle, Respondent cried and said he was sorry, but at no time did he deny her version of the story. There is no evidence, however, that he was made aware of it. Petitioner was unable to present the testimony of Ms. McKie. A subpoena issued to procure her presence at the hearing could not be served on her because the address given for her turned out to be a vacant lot. Ms. McKie had not been deposed previously, and, therefore, her testimony was not available. Respondent, testifying in his own behalf, indicated on the first incident described by Doyle, he had been visiting his brother, who resides in a Department of Health and Rehabilitative Services sponsored group home for the mentally disabled, the Golden Age Retirement Home, in the general area near where he was stopped by Doyle. Respondent is his brother's guardian, and on the night of that first alleged incident, had been visiting him somewhat late in the evening. During that visit, his brother introduced him to his girlfriend, whom he identified as Ms. McKay, and asked Respondent to take her to the store to pick up some items for him. After leaving the local convenience store where she purchased some snack items, on the way back she got sick and Respondent pulled over to the side of the road to allow her to relieve herself. While he was sitting there, with the auto engine running, Doyle arrived and directed him to get out of the car. When he complied, Doyle questioned him and in response, Respondent indicated he was a janitor and a corrections officer. At this time, he claims, Doyle accused him of prostitution, though Respondent denied it. Though he did not arrest Respondent, Doyle allegedly told him at that time to stay out of the area in the future even though Respondent claimed to have a lot of relatives living there. Throughout this interview, Respondent claims, Doyle was hostile and threatening. On June 24, 1992, Respondent, who was working the 6:30 AM to 2:30 PM shift, again visited his brother late in the evening. His visit was late because, after getting off work, he had to have some car repair work done and then took his wife to dinner. By the time they got back and he was ready to go, it was after 10:00 PM. However, because, he had to get his brother to sign some papers for the Social Security Administration, he decided to go even though it was late, and since his wife did not care to accompany him, he went by himself. On the way there, he saw a female walking on the street whom he recognized as a woman named Sally (McKie). He had known her for several years as a friend of his sister, but no idea she had an arrest record as a prostitute. Ms. McKie apparently walked out in front of his car and he stopped. He told her he was going to visit his brother, but if her destination was anywhere near his, he would give her a ride. She accepted. On the way, Ms. McKie indicated she was having some problems and began to get upset. She directed him into the warehouse area as a shortcut, but, for some reason, he claimed instinct, Respondent decided not to take it, turned around, and went back the way he had come. As he did so, however, he met Officer Doyle who stopped him and asked him for his driver's license which he did not have with him. According to Respondent, Doyle had Ms. McKie get out of the car and go with him to the rear where, for a period which Respondent estimates as approximately thirty minutes he allegedly threatened her with arrest if she did not admit she was engaged in prostitution at Respondent's solicitation. Respondent admits he did not hear the entire conversation and did not observe Doyle in his relationship with Ms. McKie, but he recalls the nature of the conversation. After speaking with McKie, Doyle came back to Respondent, had him get out of the car, and arrested him. Respondent was not prosecuted on the charge for which he was arrested. A Nol Prosequi Order dated October 13, 1992 so indicates. Even though Respondent notified his agency of his arrest, no action was taken against him by his supervisors. His appraisal report, dated June, 1993, for the preceding year which included the time of the incident in question reflects he exceeded standards, receiving 38 out of a possible 44 rating points. In that report he is described as an individual who can be depended upon to get the job done; who takes the initiative to insure those working for him have the requisite tools to do their job; accepts additional duties and puts every effort into accomplishing a task; works well with others; and can be depended upon to be there when needed. His three prior performance appraisal records, covering the period from January, 1989 through January, 1992, also reflect ratings of either "exceeds standards" or "outstanding." Respondent's supervisor, Sergeant Lacienski, and a fellow corrections officer and sometime subordinate, Officer Charette, both indicate Respondent has a good record and reputation within the corrections community for truth and veracity. According to Lacienski, even though Respondent's arrest was known within the correctional community, no one indicated any reluctance to work with him for that reason. This opinion is shared by Officer Charette, who asserts that Respondent's arrest for this incident had no effect on his work, and his effectiveness has not been diminished. Respondent has worked with the Orange County Department of Corrections for more than eleven years, achieving the rank of corporal. While serving as a corrections officer over that period, he has, at various times, held various part time jobs such as security officer, psychic technician, nurse's aide, and, for a period, janitor with Duncan Janitorial Service. He has never received any type of disciplinary action during his corrections career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against the Respondent, John H. Girtman. RECOMMENDED this 13th day of December, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 13th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3299 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 to this case. FOR THE PETITIONER: 1. - 15. Accepted and incorporated herein. Rejected as hearsay evidence not properly corroborated by other admissible evidence of record. & 18. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted. 7. - 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted. 18. & 19. Accepted. Accepted. & 22. Accepted. COPIES FURNISHED: Steven O. Brady, Esquire Florida Department of Law Enforcement 400 West Robinson Street, N-209 Orlando, Florida 32801 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Union Correctional Institution Operating Procedure No. 81-6, concerning inmate canteen coupon books, is an "unpromulgated rule" within the meaning of Section 120.52(15), Florida Statutes, rendering it an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioners are prisoners Incarcerated at Union Correctional Institution, a prison operated by the Department the agency responsible for the state prison system. The parties stipulated that petitioners are Substantially affected by the challenged Union Correctional Institution Operating Procedure No. 81-6. Petitioners, who initially challenged several operating procedures and directives, have confined their attack to Union Correctional Institution Operating Procedure No. 81-6. This Operating Procedure, issued February 16, 1962, and revised October 2, 1981, Is titled "Inmate Canteen Coupon Books" and issued over the signature of the Superintendent of Union Correctional Institution. As authority for its issuance, two policy and procedural directives are referenced, neither of which is in evidence. The stated purpose of this Operating Procedure is: To establish the approved medium of exchange for inmates assigned to Union Correctional Institution; To establish procedures for obtaining coupon books for use in the Canteen System; To place responsibility for distributing and accounting for Canteen coupons; To place limitations upon inmates use of coupon books; To establish procedures for redemption of coupon books; and To identify disciplinary action relative to misuse of coupon books. (Petitioners' Exhibit No. 1) Paragraph 81-6.3A expresses the main policy of the Operating Procedure: A. Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband. (Petitioners' Exhibit No. 1) This Operating Procedure announces and purports to set Department policy for Union Correctional Institution. Canteen coupon books are declared to be the only approved medium of exchange for inmates. Currency, coins or other negotiable instruments in the possession of inmates are declared contraband. All currency, coins or negotiable instruments are removed from new inmates and credited to their individual trust accounts. Thereafter, inmates may draw up to $20.00 per week from their trust accounts, but only in the form of coupon books. Coupons may be redeemed in the canteen system but loose coupons will not be accepted. Inmates may not possess more than $25.00 worth of coupons--any excess is declared contraband. This Operating procedure also includes details regarding coupon books, coupon distribution, and coupon redemption. Finally, inmates are warned that failure to comply with the Operating Procedure may constitute a violation of institutional rules for which, presumably, sanctions may be imposed. (Petitioners' Exhibit No. 1) This written Operating Procedure applies to all inmates at Union Correctional Institution. It applies prospectively, and dictates the medium of exchange for inmates at the institution. It purports, in and of itself, to create rights and affect others; it is virtually self-executing, no exceptions or discretion in implementation is allowed. By its tone and language, it speaks with the force of a rule of law. The Department concedes that this operating procedure has never been adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact The Respondent, Lester Bishop, was employed as a Correctional Officer at Union Correctional Institution from March 20, 1981, to April 1, 1986. Union Correctional Institution (UCI) is a facility which houses inmates ranging in custody levels from minimum to close. In December of 1981, the Respondent was given a copy of the rules of the Department of Corrections. At this time he acknowledged that he was responsible for compliance with these rules. In late March and early April, 1986, the Respondent was scheduled to work the first shift at UCI beginning at 12:00 midnight and ending at 8:00 a.m.. The supervisor for this shift was either Lieutenant R. L. Weiland or Lieutenant S. E. Stafford, depending upon the day of the week. On March 23, 1986, the Respondent called Lieutenant Weiland at Union Correctional Institution at 12:30 a.m., requesting and receiving sick leave for the remainder of this shift. On March 24, 1986, the Respondent did not report to work, and he did not contact the shift supervisor to request leave. As a result, he was placed on unauthorized leave without pay status for this day. On March 25, 1986, the Respondent called his supervisor, requesting and receiving eight hours sick leave for this day. On March 26 and 27, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. March 28 and 29, 1986, were the Respondent's regularly scheduled days off. From March 30 until April 2, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. On April 2, 1986, the Superintendent of Union Correctional Institution, T. L. Barton, sent the Respondent a letter informing him that he had abandoned his position at Union Correctional Institution, and that he was dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Lester Bishop, from his position as Correctional Officer at Union Correctional Institution, for abandonment, pursuant to Rule 22A 7.010(2), Florida Administrative Code, effective March 25, 1986. THIS Recommended Order entered on this 9th day of December, 1986, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gilda H. Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986. Ernest A. Reddick, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lester Bishop, in pro per Box 1341 Starke, Florida 32091
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2. Incorporated in Finding of Fact 3. 3. Incorporated in Finding of Fact 4. 4. Incorporated in Finding of Fact 5. 5. Incorporated in Findings of Fact 4 and 6. 6. Incorporated in Finding of Fact 5. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Findings of Fact 7 and 8. COPIES FURNISHED: Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Vernell Hadley Jackie B. Blevins Samuel Moore Douglas Adams Union Correctional Institution P. O. Box 221 Raiford, Florida 32083 Liz Cloud Chief Bureau of Administrative Code 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32301
The Issue Whether the Petitioner abandoned his position or resigned from the Career Service System.
Findings Of Fact The Petitioner received an approved education leave of absence without pay from his Career Service position at Hendry Correctional Institution from August 29, 1986, until May 15, 1987. The purpose of the leave was to allow the Petitioner to obtain a master's degree in library science through a government sponsored, professional training grant program. As a condition of the grant program, the Petitioner agreed to return to Hendry Correctional Institution following the completion of his degree. The anticipated completion date was May 15, 1987. If there was no vacancy on staff at that time, the Petitioner agreed to accept employment first in another state correctional institution library in Florida. If no vacancies were located in state correctional institutions, the Department of State, Division of Library Information Services, would assist him in finding suitable employment in other Florida libraries. On May 5, 1987, and June 26, 1987, the personnel manager at Hendry Correctional Institution wrote to the Petitioner to inquire whether he intended to return to the institution. The Petitioner did not reply to the inquiries. On June 30, 1987, the personnel manager at another correctional institution in Florida wrote to the Petitioner and offered him employment as a Librarian II. The Petitioner counteroffered with a conditional acceptance of employment if he could begin work on September 1, 1987. The personnel manager wrote to the Petitioner to determine why the counteroffer was made. The Petitioner had no further contact with the institution. Upon completion of the master's degree course work, the Petitioner wrote to various persons involved in the grant administration and attempted to demand unilateral changes in the terms and conditions of the agreement which would inure to his benefit. All of these attempts to change the terms of the contract were unsuccessful. The Petitioner accepted employment in another state sometime between May 1987 and September 27, 1987, the date he wrote to Respondent about his new job. The letter was received by the Bureau of Personnel on October 15, 1987. In the same letter, the Petitioner acknowledged that he had breached the terms of the professional training grant program. He offered to repay the grant by making monthly installments of $50.00 toward the outstanding balance. On October 21, 1987, Hendry Correctional Institution sent the Petitioner a letter which stated he had been deemed to have abandoned his position at the institution and resigned from the Career Service system effective October 21, 1987.
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-7. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 3 and 4. Incorporated in Finding of Fact 6. 10-11. Incorporated in Finding of Facts 7 and 8. Incorporated in Finding of Facts 10 and 11. Rejected as contra to the weight of the evidence. Incorporated in Finding of Fact 17. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that: Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated. RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986. COPIES FURNISHED: Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Gene "Hal" Johnson, Esq. 233 W. College Avenue Tallahassee, FL 32301 Robert R. Dempsey Executive Director Department of Law Enforcement O. Box 1489 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
