Findings Of Fact On November 15, 1975, Eagler was employed by DOR as a correctional officer at Florida Correctional Institution, Lowell, Florida, and was working the first or 12:00 to 8:00 a.m. shift. At about 7:30 a.m. Eagler was required to participate in the conduct of a prisoner count according to the following standard procedure. At the institution there are four separate dormitories labelled A thru D respectively. Dormitories A and B are located at the south end of the institution and Dormitories C and D are located at the north end. Between the north and the south ends of the institution is the dining hall and lieutenant's office. During the count, a team of two correctional officers are assigned responsibility for two dormitories. In the first dormitory, one officer conducts a prisoner count while the other observes. The roles are then reversed with the second officer conducting his own prisoner count. In the event the two counts do not coincide, a recount is conducted in order to isolate the source of the error. The procedure is repeated in the second dormitory. A count is then made of the dining hall personnel after which all correctional officers meet in the lieutenant's office to report the total count. If the count does not coincide with the actual prisoner population, an escape and recapture plan is immediately implemented. On the morning in question, Eagler along with correctional officer Robert L. Bannister was assigned to conduct the prisoner count in B and C dormitories. In the initial count of B dormitory, Bannister came up with a count of 60 while Eagler came up with a count of 59. Although the procedure is to require both counts to coincide, Eagler at this point declared that he would accept Bannister's count. Sergeant Arthur J. Chandler was the shift supervisor and upon learning of these events ordered Eagler to conduct a recount. In response, Eagler said he would accept Bannister's count but Chandler advised that such procedure was impermissable and ordered Eagler to conduct a recount. Eagler refused and then refused a third time. Eagler never did conduct a recount so Bannister along with another correctional officer conducted a recount of Dormitory B and a proper count was cleared at 8:00. During Eagler's discussions with Sergeant Chandler, Eagler not only refused to conduct a recount but became boisterous and talked in a loud angry manner, occasionally using mildly profane language. This was done within the sight and hearing of some 40 to 50 inmates in Dormitory B. Sergeant Chandler directed Eagler to go to the lieutenant's office but Eagler did not immediately comply although he did ultimately proceed to the lieutenant's office at an undetermined time. The importance of implementing the prisoner count procedure expeditiously cannot be overemphasized. The success of recapturing an escaped prisoner and the minimization of such mischief as an escaped prisoner might accomplish in the community is directly proportional to the timeliness of the implementation of the escape and recapture plan. It is also considered good corrections procedure to avoid airing differences between correctional officers in front of inmates. It is more desirable to present a common front to the inmates and resolve differences in private.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Career Service Commission sustain the action taken by DOR. DONE and ENTERED this 28th day of July, 1977, in Tallahassee, Florida. MICHAEL R. N. McDONNELL Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1977. COPIES FURNISHED: Raymond Gearey, Esquire Department of Offender Rehabilitation 1311 Winewood Boulevard Tallahassee, Florida Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Mr. William R. Eagler 5273 Northwest 63rd Place Ocala, Florida 32670 Earl Archer, III, Esquire Department of Offender Rehabilitation 1311 Winewood Boulevard Tallahassee, Florida 32301
The Issue Did Respondent commit the offense alleged in the Administrative Complaint and, if so, should Respondent's Correction Certificate No. 101468 be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Beverly A. Morris was a certified correctional officer, having been certified by the Criminal Justice Standards Training Commission on October 13, 1986, and issued Correctional Certificate No. 101468. At all times material to this proceeding, Respondent was employed by the DeSoto Correctional Institution. On October 20, 1996, Respondent was assigned as supervisor in "A" Dormitory at the DeSoto Correctional Institution. On October 20, 1996, Inmate Richard Lloyd was assigned to, and a resident of, "H" Dormitory at the DeSoto Correctional Institution. At all times material to this proceeding, Correctional Officer Mark McFry was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer McFry was assigned to east side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer McFry observed Respondent with Inmate Richard Lloyd. During this same period of time, Officer McFry also observed Respondent repeatedly touch Inmate Richard Lloyd by rubbing her hand on his stomach, chest, and back. Officer McFry did not report the incident immediately but waited until October 25, 1996, some five days later to report the incident. At all times material to this proceeding, Officer Richard Wuest was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer Wuest was assigned to west side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer Wuest observed Respondent with Inmate Richard Lloyd. During this same period of time on October 20, 1996, Officer Wuest also observed Respondent repeatedly touch Inmate Lloyd by rubbing her hand on his stomach, chest, and back. Officer Wuest did not report the incident but was named as a witness in Officer McFry's report. There is insufficient evidence to show that Respondent advised Inmate Lloyd that she was not going to take a polygraph, notwithstanding the testimony of Darron Duval which I find lacks credibility. Subsequent to this incident, Inmate Lloyd was transferred from DeSoto Correction Institution to Hardee Correctional Institution. Respondent wrote Inmate Lloyd a letter dated July 7, 1997, and enclosed a photograph of herself and her daughter which was intercepted by the officials at Hardee Correctional Institution. There was no evidence that any other prior violation had been committed by the Respondent or that any other prior disciplinary action had been taken against the Respondent by the Commission. There was no evidence presented as to what, if any, disciplinary action had been taken against the Respondent for this incident by the DeSoto Correctional Institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the aggravating and mitigating circumstances set out in Rule 11B-27.005(6), Florida Administrative Code, it is recommended that the Commission suspend Respondent's Correctional Certificate No. 101468 for a period of one year and, upon being reinstated, that Respondent be placed on probationary status for a period of six months subject to terms and conditions imposed by the Commission. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Beverly A. Morris 1811 Southwest Hendry Street Arcadia, Florida 34266
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
The Issue Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
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 correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, 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 7th day of June, 2012.
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 Respondent was the subject of an unlawful discrimination action as defined in Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. She was certified as a corrections officer in March 1991. In November 1995, Petitioner was employed by Respondent, Department of Corrections, at Taylor Corrections Institution in Perry, Florida, as a correctional officer with the rank of sergeant. Prior to her employment at Taylor Corrections Institution she had been a corrections officer at a correctional facility in Jefferson County. Petitioner did not have employment problems while working at the Jefferson County facility. Petitioner's first year at the Taylor County correctional facility was "O.K." However, Petitioner was not well liked among her fellow officers. Between June through October 1996, Petitioner was the subject of several complaints from her fellow officers. These separate complaints were: On June 12 or 13, 1996, King cursed at an entire dormitory of inmates. On June 19 King was assigned to assist another officer in conducting a recount of inmates. She failed to assist the officer in conducting the recount. On July 24, 1996, King was assigned to escort the swill truck (a food truck) by the control room sergeant. She refused to accept the assignment and cursed at the control room sergeant. A few days later, she confronted another officer in a hostile and threatening manner because the officer had submitted an incident report concerning King's conduct in cursing at the control room sergeant. On October 9, another sergeant asked King to sign a typed incident report regarding King's loss of her state-issued handcuff case. King initially refused to sign the report. Shortly thereafter, she tore up the report in the presence of an inmate because she was displeased with certain comments in the report. On October 28, King cursed at a coworker. Id. PERC Final Order dated October 8, 1997. In October 1996, Petitioner filed several internal discrimination complaints against the agency generally opposing unfair employment practices. The exact nature of these complaints was not established by the evidence. On December 13, 1996, Petitioner received a notice of disciplinary charges being brought against her based on the earlier-filed employee complaints. The notice lists the charges as follows: Multiple charges are being brought against you stemming from several investigations. In the first case, you are being charged with malicious use of profane or abusive language toward inmates, visitors, or persons under supervision, use of verbal abuse of an inmate, conduct unbecoming a public employee, and willful violation of state statute, rule, directive, or policy statement. Specifically on June 25, 1996, an anonymous request was received by the Superintendent's Office alleging that you cursed the entire dormitory of inmates on June 13, 1996. It was also alleged that you had been gambling and would not pay off your debts. This prompted an investigation into these allegations. Several witnesses including an inmate verified the above allegations. The basis for these charges is contained in the Institutional Investigation Report #96-044, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33- 4.001(4)(a), 33-4.002(4)(9), and 33- 4.003(6)(20)(22)(24), F.A.C., copies attached and made a part hereof. In the second case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming a public employee, unwilling to follow lawful orders or perform officially designated duties, interference with an employee, failure to follow oral or written instructions, witness tampering during an investigation, and retaliation. Specifically on July 24, 1996, Sergeant J. Pickles reported that while assigned as Control Room Supervisor, he advised you via radio that he needed an escort for the swill truck. You responded by telephone and stated "Why are you calling me? I'm not escorting that fucking swill truck. I'm busy in the Caustic Room. Get someone else to do that shit." Officer V. Aman submitted an incident report verifying the telephone conversation since it was the dormitory in which she was assigned to that you came to use the telephone. On August 1, 1996, Officer Aman also stated that you made threats toward her in retaliation for submitting her report, in which you admitted to confronting this officer. The basis for these charges is contained in Institutional Investigation Report #96-052, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33- 4.002(4)(11)(17), 33-4.003(22)(24)(32), F.A.C., and Sections 914.22, 914.23, Florida Statutes, copies attached and made a part hereof. In the third case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming, unwillingness to perform officially designated duties, substandard quality of work, negligence, and failure to follow oral or written instructions. Specifically, on June 19, 1996, a recount was ordered and you were informed by the control room that your dormitory officer needed assistance in the recount. The officer stated that he waited approximately ten (10) minutes for your arrival and proceeded to recount without assistance. He then submitted an report as to the incident. You then submitted an incident report concurring with the officer with the exception that you observed the recount from the Officer's Station. The basis for these charges can be found more specifically contained in the Institutional Investigation #96-058, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(4)(11) and 33-4.003(10)(13)(22)(24)(32), F.A.C., Institutional Post Orders 17.02(j), 06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4), and Institutional Operating Procedures 3.03.3(C)(5)(11e), copies attached and made a part hereof. In the fourth case, you are being charged with conduct unbecoming a public employee, willful violation of state statute, rule, directive, or policy statement, and destruction or abuse of DC property or equipment. Specifically on October 9, 1996, you submitted an Incident Report for losing your state issued handcuff case. On October 13, 1996, after being typed, Sergeant Chad Dees gave the Incident Report to you to be signed. Upon receiving the report, you allegedly stated "I will show you what I will do with this," then tore the report up and walked away. You admitted to tearing up the report because of the comments written by Captain Simons, but denied making the comment alleged by Sergeant Dees. Officer Tammy Alvarez witnessed you tear up the report, but denied hearing any statements made by you. The basis for these charges is contained in the Investigative Report #96-23008, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(25), and 33- 4.003(22)(24)(27), F.A.C., copies attached and made a part hereof. All of these charges pre-date Petitioner's internal complaints. On January 23, 1997, a predetermination conference was held on the above charges. The evidence did not demonstrate that the employee charges or the disciplinary action were retaliatory in nature or based in discrimination. Moreover, the factual basis of the charges was upheld in the PERC Final Order. As referenced in the letter, Petitioner was the subject of several investigations conducted by the Inspector General's Office of the Department of Corrections. The role of the Inspector General was to gather the facts and evidence involved in a complaint. The Inspector General does not make any recommendations as to discipline or determine if a rule or statutory violation has occurred. Raleigh Sistruck, an Inspector with the Inspector General's office conducted some of the investigations of Petitioner. He did not personally know Petitioner. There was no evidence that he treated Petitioner differently than he did any other investigatory subject. Nor did Inspector Sistruck engage in any conspiracy or act alone to fabricate evidence against Petitioner or elicit false testimony from witnesses. Indeed, the only evidence presented in this case, is that Inspector Sistrunk followed standard investigatory procedures in investigating the complaints against Petitioner. In January, 1998, Petitioner was accused of soliciting an inmate and another correctional officer to cause harm to another inmate at the facility. The Inspector General's office investigated that accusation. Again there was no evidence that the inspectors engaged in any conspiracy to falsify or fabricate evidence. Normal investigatory procedures were followed. Based on the various complaints and the findings set forth in various Inspector General investigations, Mr. Drake decided to terminate Petitioner. Petitioner received a letter of extraordinary dismissal on February 7, 1997. The dismissal letter dismisses Petitioner for: This dismissal is the result of you being charged with willfully engaging in conduct which violates state statutes and Agency rules; conduct unbecoming a public employee; failure to conduct yourself in a manner consistent with the welfare of inmates; soliciting, bartering, dealing, trading with or accepting a gift or other compensation from an inmate(s); willfully treating an inmate in a cruel or inhuman manner; threatening or interfering with other employees while on duty; failure to maintain a professional relationship with inmates; giving false testimony; and interfering with an inmate. Specifically, on or about January 10, 1997, you solicited the assistance of inmate Tony Jackson, DC#724515 and Correctional Officer Jacqualyn Jackson-Beasley to cause harm to inmate Mike Doty, DC#725094. As a result of your actions and requests, Officer Jackson- Beasley, inmate Jackson, inmate Mark Smith, DC#724887, inmate Alberto Matta, DC#191523 and inmate Thomas Carrillo, DC#195319, conspired and did plant a homemade knife, with an approximate 14 inch blade, in inmate Doty's cell in an effort to set him up. When inmates Carrillo and Matta entered F- Dorm with the knife, Officer Jackson-Beasley signaled then with her fingers indicating inmate Doty's cell number. She also acted as a cover while the inmates planted the knife in inmate Doty's cell. Once the knife was planted, you and Officer Jackson-Beasley had a telephone discussion during which you instructed her to call Sergeant Gerald Miller and have inmate Doty's cell searched. Once Officer Jackson-Beasley reported the information to Sergeant Miller, a search of Doty's cell was made and the knife was recovered. Sergeant Miller than notified Captain William F. Buchtmann. After questioning by Captain Buchtmann, inmates Carrillo and Mata, both admitted their participation in placing the knife in inmate Doty's pillow and stated they were contacted by inmates Jackson and Smith for assistance. Carrillo was told by Jackson and Smith that it was you who wanted inmate Doty taken care of and they gave inmate Carrillo the impression that if he took care of inmate Doty, he would be paid $50.00 and be given an undisclosed amount of marijuana for his assistance. The following day, January 11, 1997, you stated to inmate Jackson words to the effect, "They locked up inmate Smith" and "That motherfucker talked" (referring to inmate Matta) You also stated to inmate Jackson words to the effect, "It's not cool for me to be seen talking to you." On or about January 17, 1997, Officer Beverly Pratt overheard you state to an unidentified inmate, words to the effect, "Something needs to be done with Doty." On that same date, inmate Willie Jackson, DC#041463, overheard you state to an unidentified inmate, words to the effect, "I am going to get Officer Jackson-Beasley and Sergeant Miller." When questioned under oath, on January 24, 1997, you gave false testimony when you denied all allegations. Additionally, the letter dismisses Petitioner for the earlier disciplinary charges discussed at the predetermination conference in December. Mr. Drake, Superintendent of Taylor Correctional Institute at the time, testified that Petitioner's termination was based on his belief that she had in fact committed the aforementioned rule and statutory violations. He stated that the termination was not based on Petitioner's race or sex or any other of her characteristics; rather, the termination was based on rule and statute violations. There was no evidence which demonstrated Mr. Drake engaged in any conspiracy to concoct evidence against Petitioner or to falsely accuse her. Angela Ratliff, Personnel Supervisor at the time, testified that she did not have any conversation with Petitioner wherein she told her that the Department, her supervisors or coworkers were "out to get her" or words to similar effect. Additionally, Ms. Ratliff does not recall having any conversations with prospective employers for Petitioner. The Respondent's policy is to recite to a prospective employer information contained in the employee's personnel file. The Department does not offer opinions or recommendations about an employee. Moreover, most of the information in the personnel file is considered a public record and must be released to any person or entity requesting the information. In any event, other than broad general statements about seeking employment and what she was told by others who did not testify at the hearing, there was no evidence regarding any specific prospective employer or the information, if any, the prospective employer received from the Department. There is no doubt that Petitioner feels very strongly she was discriminated against. The problem with Petitioner's case is a total lack of evidence to support her allegations. Throughout the hearing she made allegations of discrimination. However, no evidence apart from her allegations of which she had no personal knowledge, was offered. For instance, the alleged paper trail created against her or documents she claimed were changed were not introduced into evidence. No witness was called who wrote or filed such document or statement was called to testify about any such document or statement or any alleged change made to the document or statement. The paper noises or pauses of tape-recorded interviews of witnesses taken during the Inspector General's investigation did not support Petitioner's claim that the witnesses were prompted or told what to say. Such noises or pauses sounded exactly like pages being turned in a notebook when one page is full and a new page is needed to continue taking notes. The pauses sounded like a note taker pausing the witnesses' statement in order to catch up the notes to the witnesses' statement. Given these critical lapses in evidence and the earlier PERC Final Order, the Petition for Relief should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2001. COPIES FURNISHED: Anita King 108 Alice Street Perry, Florida 32347 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact At all times relevant to the issues herein, Respondent was licensed by the Florida Division of Real Estate under license number 0202980. On January 16, 1986, Respondent, represented by counsel, entered a plea of guilty before the Honorable Alcee L. Hastings, Judge of the United States District Court for the Southern District of Florida, to a charge of being involved in a scheme to defraud to obtain money by false pretenses by U.S. Mail, in violation of 18 U.S.C. 1341 & 1342, and conspiracy to defraud to obtain money by false pretenses in violation of 18 U.S.C. 371. Respondent was found guilty as per his plea and was sentenced, inter alia, to imprisonment in a United States Penitentiary for 4 years on the first count and for 1 year on the second, the terms to run consecutively. Respondent surrendered to authorities at the Federal Prison Camp, Leavenworth, Kansas, on May 5, 1986, and is presently incarcerated there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law is is, therefore: RECOMMENDED that the Respondent's license as a real estate salesman in Florida be revoked. RECOMMENDED this 17th day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of October, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 William J. Hogan 25392-004 B-2 Post Office Box 1000 L.V.C. Leavenworth, Kansas 66048 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
