The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent Eric Runge holds an inactive correctional officer certificate bearing number 502-2839. On January 9, 1983, the Respondent Runge was employed as a correctional officer at the Hendry Correctional Institute. On that date, the Respondent and four other officers were involved in the movement of a prisoner, Raymond Russell Ford, from one confinement area to another. Prior to the transfer, a supervisor, Lt. McNaughton, met with the officers involved in the transfer and explained to them that he wanted to see the inmate hurt. The officers, including the Respondent, went to the inmate's cell and found him asleep. Ford was awakened by one of the officers and handcuffs and leg irons were secured to his hands and feet. During the transfer, the inmate was placed on the ground several times, here he was struck and kicked by three of the officers. The Respondent was approximately 20 feet in front of the inmate when this occurred. The Respondent and another officer helped the inmate to his feet and turned him over to Sergeants Thompson and DeSilvestri. The inmate was tripped repeatedly by the two officers. This was visible to the Respondent since he was approximately 15 feet behind the inmate and escorting officers. At no time did the inmate fight with the officers or physically resist when they tripped and hit him. When the inmate arrived at his assigned cell, the Respondent and Officer Wilkerson contacted Betty White, a medical technician, in order to alert her of possible injuries to the inmate. Ford's injuries were not serious and consisted of multiple abrasions and scrapes to the face, legs and arms. When this incident came to the attention of prison authorities, all the officers involved were requested to give statements under oath concerning the transfer of the inmate. The Respondent was aware that he was required by Department of Corrections rules to truthfully answer inquiries made by the prison inspector. However, the Respondent admitted violating Department rules by falsifying his report to the prison inspector by denying that excessive force was used during the transfer of the inmate. This false report was made as part of an unsuccessful attempt by the officers involved to cover up the incident. As a result of this incident, several officers lost their jobs at Hendry and the Respondent's effectiveness as a correctional officer has been seriously reduced due to his role in the transfer and subsequent cover up. The involved officers are labeled as "dirty employees" which limits their ability to effectively discharge their duties inside the prison.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner suspending the certificate of the Respondent Eric C. Runge for three months. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301 Janet E. Ferris, Esquire General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Eric C. Runge 1643 North Flossmore Road Fort Myers, Florida 33907 Robert R. Dempsey, Executive Director, Dept. of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 83-2302 CJSTC CASE NO. CORO18-0274 ERIC C. RUNGE Certificate Number: 502-2839 Respondent. /
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
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on October 29, 1997, and was issued correctional certificate No. 175702. At times relevant to the inquiry Respondent was employed at the Gadsden Correctional Facility as a Senior Correctional Officer. Corrections Corporation of America (CCA) ran Gadsden Correctional Facility during the period in question. On February 26, 20004, on a medical enrollment worksheet for insurance provided by CCA, Respondent wrote in the name Tamara S. Ross and identified Tamara Ross as his wife. Similarly, on a dental/disability worksheet for insurance executed on the same date, Respondent wrote the name Tamara S. Ross, in a block within the form which was intended for use in identifying the applicant's spouse. In both insurance plans Respondent, by executing the applications, had added Tamara S. Ross to the coverage. When placing his signature on the application forms to add Tamara S. Ross to the coverage he confirmed, consistent with each form, "I am also certifying that all of the information, including dependent information, that I have provided on this form is accurate." At the time the applications were made requesting that Tamara S. Ross be added for medical and dental/disability coverage as Respondent's wife, the person identified as Tamara S. Ross was not the wife of Respondent. At an earlier time she had identified herself as Tamara Moore. In a document found within Respondent's personnel file maintained by his employer CCA, a reference is made to "Tamara" who is described as "my fiancée." On November 11, 2004, Respondent resigned his position as Senior Correctional Officer at the Gadsden Correctional Facility.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations pertaining to Sections 838.022 and 943.1395(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), while dismissing the part of the case referring to Section 943.1395(6), Florida Statutes (2003), and suspending the correctional certificate held by Respondent for 30 days. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 11th day of August, 2005. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joe L. Ross, III Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. 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 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and issued certificate number 19-82-502-08, which he still holds. For approximately the past eight years, Respondent has been employed by the Metro-Dade County Department of Corrections and Rehabilitation (Department). During the first six years of his employment with the Department, he held the position of Correctional Officer I. His duties as a Correctional Officer I included supervising crews of inmates performing lawn maintenance work on public grounds outside the correctional facility in which they were housed. One of Respondent's supervisors was Jerry Meese, the Director of the Department's Operations Division. On September 26, 1986, while returning to his office from a lunchtime excursion, Meese observed a Department truck used to transport inmate work crews parked outside a private residence. The truck's presence in the residential area aroused Meese's suspicion. He therefore stopped to investigate. He soon discovered that Respondent and some inmates were in the area. One of the inmates was found to have some chewing gum in his possession. The inmate told Meese that Respondent had given him money to purchase the gum at a nearby store. A short walking distance from where Meese had encountered the inmate was a bag containing seven containers of beer. The containers were cold to the touch. Meese went to the store to which the inmate had referred and spoke to the store clerk. The store clerk advised Meese that the inmate, a short time before, had bought the beer that Meese had found in the bag. Meese discussed the matter with Respondent. It appeared to Meese that Respondent's speech was slurred and that his eyes were red. Upon his return to the office, Meese was provided with statements from inmates supervised by Respondent in which the inmates indicated that they had drank beer and smoked marijuana with Respondent. Shortly thereafter Meese learned that the inmates had tested positive for drugs. The Department had a policy which required a correctional officer to submit to drug testing if there existed a reasonable suspicion that the officer was involved in the illicit use of drugs. Based upon what had occurred that afternoon, Meese justifiably believed that he had grounds to invoke this policy and he therefore directed Respondent to submit to a drug test. He gave Respondent until Monday, September 29, 1986, to take the test. On September 29, 1986, prior to submitting to the test, Respondent was interviewed by Robert Sobel, an investigator with the Department's Internal Affairs Unit. Respondent freely admitted to Sobel that he "smok[ed] marijuana on a regular basis" and that he "would like to enroll in a program to overcome this problem." Later that day, at 3:10 p.m., in compliance with Meese's directive, Respondent went to the Consulab facility at the Cedars Medical Center in Miami and gave a urine specimen. The sample was screened by the use of an enzyme immunoassay testing procedure. The screening test was performed twice. On both occasions, the sample tested presumptively positive for cocaine and marijuana. The sample was then subjected to confirmatory testing. The thin layer chromatography (TLC) method was used. When performed by a competent technologist, TLC testing is accurate 95 to 99 percent of the time. The two technologists who tested Respondent's urine sample using the TLC method were highly competent. Their tests, which were completed at about 4:50 p.m., revealed the presence of cocaine metabolites 1/ and cannabinoids (marijuana). 15. The tests were accurate. Respondent had knowingly used cocaine and marijuana on or about the date of the testing. Notwithstanding the results of the testing, Respondent was not terminated by the Department. Instead, he was suspended. As a condition of continued employment, he was required to participate in a drug rehabilitation program and to remain drug-free. Respondent has met these requirements to the satisfaction of the Department. Not only has Respondent remained in the employ of the Department, he how occupies the position of corporal, a supervisory position to which he was promoted approximately two years ago. His post-September, 1986, employment record reveals that he has taken full advantage of the opportunity given him by the Department to rehabilitate himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character" in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cocaine and marijuana on or about September 26, 1986; and (2) based upon such a finding, (a) suspend Respondent's certification for 30 days, (b) place Respondent on probation for a period of two years to commence upon the expiration of this 30-day suspension, and (c) include among the terms and conditions of his probation the requirements that Respondent submit to scheduled and monthly drug testing and that he agree to release the results of such testing to the Commission or its designee. DONE and ORDERED in Tallahassee, Leon County, Florida, this 30th day of May 1990. STUART M. LERNER 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 Administrative Hearings this 30th day of May 1990.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibit received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent, Mr. John S. Moncrief, was certified by the Criminal Justice Standards and Training Commission on June 12, 1980, and was issued Certificate Number C-9151 Mr. Moncrief worked in various law enforcement positions from 1979 through 1984. From December 1, 1981, until September 27, 1982, Mr. Moncrief worked as a Corrections Officer for the Okeechobee Sheriff's Office. During the entire time that Mr. Moncrief worked in law enforcement, the only charges or complaints made against him were those which form the basis for the charges in this case. During the months of March and April of 1982, Mr. Gerald Ray "Cowboy" Powell was an inmate of the Okeechobee County Jail. During a portion of that time Ms. Lynda Carroll was also an inmate of the Okeechobee County Jail. At all relevant times Mr. Powell was housed in a downstairs cell which was used for trustees and minimum security inmates and Ms. Carroll was housed in the women's cellblock which was on the second floor of the jail facility. It was not possible for an inmate housed on the second floor to come down to the first floor without the assistance of a jail employee. On two occasions during the months of March and April of 1982, Moncrief allowed Ms. Carroll to come downstairs at night and visit Mr. Powell in the latter's downstairs cell. In order to do so, it was necessary for Mr. Moncrief to enter the portion of the jail facility in which female inmates were housed and to open locked doors for Ms. Carroll. On both of the occasions mentioned immediately above, Mr. Powell and Ms. Carroll engaged in sexual intercourse in Mr. Powell's cell.2 On one occasion during the month of April of 1982,another Corrections Officer employed by the Okeechobee Sheriff's Office allowed Mr. Powell to go upstairs at night and visit with Ms. Carroll in her cell. On this occasion Mr. Powell and Ms. Carroll did not engage in sexual intercourse. Mr. Moncrief was not involved in any way with Mr. Powell's upstairs visit with Ms. Carroll. During March and April of 1982 the policies and procedures in effect at the Okeechobee County Jail prohibited male Corrections Officers from entering the area in which female inmates were housed unless the male Corrections Officer was accompanied by a matron or a female dispatcher. Policies and procedures in effect at that time also prohibited inmates of one sex from visiting with inmates of the opposite sex. Mr. Moncrief was aware of these policies. It was a violation of these policies for Mr. Monerief to allow Ms. Carroll to visit with Mr. Powell in the latter's cell.
Recommendation On the basis of all of the foregoing, I recommend that the Criminal Justice Standards and Training Commission. enter a Final Order dismissing all charges in the Amended Administrative Complaint on the grounds of insufficient evidence. DONE AND ORDERED this 23rd day of September, 1985, Tallahassee, Florida. MICHAEL M. PARRISH ISH, 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 23rd day of September, 1985.
The Issue The issue is whether Respondent has failed to maintain the qualifications for certification as a correctional officer, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on August 31, 1994. She was issued correctional certificate number 145457. At all times material to this proceeding, Respondent was employed as a corrections officer at the Union Correctional Institution (UCI). She worked the 4:00 p.m.-12:00 midnight shift. R. E. Jernigan, Correctional Officer Inspector at UCI, received an anonymous telephone call on January 6, 1995. The caller stated that Respondent would be attempting to bring drugs into the institution on that date. As a result of this information, Inspector Jernigan arranged for a search of the correctional officers beginning the 4:00 p.m.-12:00 midnight shift. This included a search of the Respondent and her belongings. Correctional Officer Dana L. Alverez assisted in the search. Respondent gave her jacket to Officer Alverez to search. In the upper left pocket of the jacket, Officer Alverez discovered three fingertips cut from a rubber glove, containing what appeared to be marijuana. Officer Alverez removed the substance from the jacket and turned it over to Lieutenant D.L. Nichols. Lieutenant Nichols retained the substance until he turned it over to Inspector Jernigan. Inspector Jernigan notified the Union County Sheriff's Office about the results of the search. Lieutenant Gary Seay of that office responded to the institution. Lieutenant Seay took possession of the substance and placed Respondent under arrest. Lieutenant Seay packaged and sealed the substance in an evidence envelope. He mailed the package via certified mail to the Florida Department of Law Enforcement laboratory in Jacksonville for analysis. Crime Laboratory Analyst Niels H. Bernstein, tested the substance submitted by Lieutenant Seay in this case. Mr. Bernstein examined the package in which the substance was enclosed. He determined that the package was properly sealed. Mr. Bernstein then opened the package and tested the substance according to industry approved methods. He determined that the submitted substance was cannabis, 0.6 grams. UCI terminated Respondent's employment. Respondent entered into and successfully completed a Pre-Trial Intervention Program in regards to the criminal charges filed against her. Upon completion of the program, the criminal charges were dismissed. Respondent's testimony that she did not know her jacket contained cannabis is not credible.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Petitioner enter a Final Order revoking Petitioner's certification as a correctional officer. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Linda L. Paige-James Post Office Box 614 Macclenny, Florida 32063 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/ Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI"). Incident Giving Rise to this Proceeding On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009). There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03. Evidence Adduced at the Final Hearing At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis. Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her. Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner. Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7). Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2013.
