Findings Of Fact The initial Petition for Administrative Hearing was filed on September 12, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 33-3.00125, Florida Administrative Code, and I.O.P. #P2-89.10 were challenged. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates. . . ." The I.O.P. apparently deals with the same general subject as the Challenged Rule. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following: 4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original]. This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner: 24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original]. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions. 9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.
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 =================================================================
Findings Of Fact Stephen J. Sefsick was employed as Corrections Officer I at Zephr Hills Corrections Institute (ZCI) in November 1980. Sefsick met the minimum qualifications for promotion to Correctional Officer II. Sefsick is a white male and was not promoted to the position of Corrections Officer II. On May 24, 1985, Sefsick was denied a promotion to Corrections Officer II at ZCI when that promotion was given to Constance Hale, a Hispanic female. On June 28, 1985, Sefsick was denied a promotion to Corrections Officer II when that promotion was given to Ronald Young, a black male. A promotion committee consisted of Correctional Officer Supervisor I Wayne Hutto, Correctional Officer Chief Sammy Hill, Assistant Superintendent Eugene Ginn, and Superintendent Ray Henderson. The first two named interviewed 22 applicants for the vacancy filled May 24, 1985, including Sefsick as well as reviewed all applicants' personnel file. They also relied upon their knowledge of the applicants, all of whom they supervised, to make this recommendation. For the May 24, 1985, vacancy Hutto and Hill recommended Correctional Officer I Constance Hale for the promotion, citing her past performance and her continuing education and training as reasons for their recommendation. Assistant Superintendent Ginn reviewed this recommendation, approved same and forwarded it to Superintendent Henderson who has final promotion authority at ZCI. Superintendent Henderson approved the recommendation and Hale received the promotion. The same procedure was followed for the position filled June 28, 1985, except that those applicants interviewed for the May promotion were not again interviewed. On June 28, 1985, Hill and Hutto recommended Correctional Officer I Ronald Young for promotion to Correctional Officer II and this recommendation was accepted by the Superintendent and Young was promoted. Florida Department of Corrections has an Affirmative Action Plan (Exhibit 5) which provides that "promotions to vacant positions shall be through open competition and based on prior job performance in order that the best qualified person for the position is chosen. However, every opportunity shall be made to upgrade and promote women, minorities, and the handicapped to more responsible positions. . . . " No quota for promotions is provided and all witnesses concurred that the best applicant was chosen for the two vacancies here questioned. Sefsick received five employee service ratings between the time he was employed in November 1980 and the time of the promotions in question. The first two evaluations in 1981 were conditional, the third was satisfactory, and the fourth and fifth were above satisfactory with the fifth assigned November 20, 1984. In January 1985, Sefsick was counselled by Major Hill and Lieutenant Hester regarding his practice of using the "snitch" system to make drug seizures. He was informed that he was thereby jeopardizing the safety of inmates as well as his own safety. An additional 160 hours of training had to be completed by correctional officers at ZCI in order to qualify for the full pay increase effective in 1985. Sefsick was working the night shift and made little effort to change shifts to attend the evening classes required to complete the training. His supervisors believed he was resisting taking the required training. However, he completed the training before the deadline. Officer Hale completed the required training for correctional officer and in addition received training in Advanced Emergency Medical Procedures and Advanced Report Writing and Review. Since her employment on June 15, 1982, Officer Hale has received three evaluations in which all of the marks assigned were satisfactory and above satisfactory. Since his employment as a correctional officer on March 18, 1983, Officer Young has received four evaluations, two of which were satisfactory and two above satisfactory. Young has also completed all required training courses. Neither Sefsick's race nor his sex was considered by the promotional committee in denying him promotion.
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2015),1/ Petitioner forfeited his Florida Retirement System (“FRS”) Investment Plan account by entering a nolo contendere plea to two counts of violating section 893.13(2)(a)1., Florida Statutes, a second-degree felony.
Findings Of Fact The Events Giving Rise to this Proceeding Mr. Combs began working for DOC on May 25, 2001, as a Correctional Officer Level 1 at the Union Correctional Institution (“Union Correctional”) in Raiford, Florida. Union Correctional is a maximum security facility housing approximately 2,000 inmates, and Mr. Combs assisted with their care and custody. In January of 2006, Mr. Combs earned a promotion to Correctional Officer, Sergeant. While his responsibilities were very similar to those of his previous position, Mr. Combs was now supervising other correctional officers. In October of 2011, Mr. Combs earned a promotion to Correctional Officer, Lieutenant, and was responsible for supervising 50 to 70 correctional officers at Union Correctional. In April of 2013, Mr. Combs earned a promotion to Correctional Officer, Captain, and transferred to Florida State Prison in Starke, Florida. A captain is the highest ranking correctional officer on a given shift, and Mr. Combs supervised approximately 50 correctional officers at a time, including sergeants and lieutenants. Like Union Correctional, Florida State Prison is a maximum security facility housing approximately 2,000 prisoners. A colonel manages Florida State Prison, and it has two separate units. One of those units is a work camp housing lower- custody inmates who may work outside the facility, and the main prison is the other unit. Each of the units is run by its own major. In February of 2015, Mr. Combs was promoted to Major and took charge of the work camp at Florida State Prison. At some point in 2014 and prior to his promotion to Major, Mr. Combs had begun taking Oxycodone recreationally. Mr. Combs typically purchased one Oxycodone pill three to four times a week, and Dylan Hilliard (a Correctional Officer 1 at Florida State Prison) was Mr. Combs’ primary source of Oxycodone. Mr. Hilliard usually worked at the main prison, but he occasionally worked at the work camp. Mr. Combs knew Mr. Hilliard because of their employment with DOC. Mr. Combs purchased Oxycodone from Mr. Hilliard at the latter’s home in Lawtey, Florida. However, some transactions occurred in Mr. Combs’ state-issued housing on the grounds of Florida State Prison. Mr. Hilliard charged Mr. Combs $35 for an Oxycodone pill, and that was a discount from the $38 price Mr. Hilliard charged others. Mr. Combs allowed his subordinates (Sergeants Jesse Oleveros and Evan Williams) to leave Florida State Prison during their shifts in order to purchase illegal drugs from Mr. Hilliard. After returning from their transactions with Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs an Oxycodone pill free of charge. Operation Checkered Flag was a joint task force led by the Bradford County Sheriff’s Office, and its purpose was to arrest individuals involved with the distribution and use of illegal drugs. The authorities arrested Mr. Hilliard after he engaged in an illegal drug transaction with an undercover agent from the Florida Department of Law Enforcement. A subsequent search of Mr. Hilliard’s cell phone revealed text messages between Mr. Hilliard and several other DOC employees, including Mr. Combs. Mr. Hilliard referred to Mr. Combs as “Chicken-Hawk” or “Hawk” in those text messages, and the two of them used car part terminology as a code for different milligram sizes of Oxycodone. Operation Checkered Flag ultimately resulted in the arrest of 10 DOC employees. The authorities arrested Mr. Combs on July 1, 2015, based on allegations that he had committed six felonies relating to the alleged unlawful and illegal purchase and distribution of Oxycodone. DOC fired Mr. Combs on approximately July 1, 2015. Mr. Combs initially denied all of the allegations. However, after spending nearly 56 days in jail, Mr. Combs reached an agreement with the State Attorney’s Office in Bradford County that called for his criminal charges to be reduced in exchange for his cooperation with Operation Checkered Flag. During an interview on August 20, 2015, with members of Operation Checkered Flag, Mr. Combs admitted that he had purchased Oxycodone from Mr. Hilliard. In addition, Mr. Combs admitted that on six or seven occasions he allowed Mr. Oleveros and Mr. Williams to leave the prison grounds so that they could purchase Oxycodone from Mr. Hilliard. The State Attorney’s Office in Bradford County chose to dismiss most of the charges against Mr. Combs. The Information ultimately filed against Mr. Combs set forth two counts alleging that he violated section 893.13(2)(a)1., by illegally purchasing Oxycodone on March 23, 2015, and March 31, 2015. Those purchases occurred approximately 10 miles from Florida State Prison at Mr. Hilliard’s residence in Lawtey, Florida. Neither Mr. Combs nor Mr. Hilliard was on duty during those transactions. On August 25, 2015, Mr. Combs pled nolo contendere. The Bradford County Circuit Court entered judgment against Mr. Combs based on the two violations of section 893.13(2)(a)1., but withheld adjudication. All of the conduct underlying Mr. Combs’ nolo contendere plea occurred while he was employed by DOC. The SBA Determines that Mr. Combs Forfeited his FRS Benefits At all times relevant to the instant case, Mr. Combs was a member of the FRS. The FRS is the legislatively-created general retirement system established by chapter 121, Florida Statutes. See § 121.021(3), Fla. Stat. The SBA is the governmental entity that administers the FRS Investment Plan, a defined retirement benefits contribution plan. § 121.4501(1), Fla. Stat. Via a letter dated August 3, 2015, the SBA notified Mr. Combs that a hold had been placed on his FRS account due to the criminal charges. As a result, no distribution of employer contributions from Mr. Combs’ account would be permitted until the SBA had evaluated the final disposition of those criminal charges. Via a letter dated September 3, 2015, the SBA notified Mr. Combs that he had forfeited his FRS benefits as a result of his nolo contendere plea. In support thereof, the SBA cited section 112.3173, Florida Statutes, which provides for the forfeiture of a public employee’s FRS retirement benefits upon the entry of a nolo contendere plea to certain types of offenses. The SBA’s letter closed by notifying Mr. Combs of his right to challenge the SBA’s proposed action through an administrative hearing. Mr. Combs requested a formal administrative hearing and asserted that the crimes for which he was convicted did not fall within the scope of section 112.3173(2)(e). In other words, Mr. Combs argued that his convictions were not associated with his employment at DOC and thus did not amount to a violation of the public trust. Testimony Adduced at the Final Hearing Mr. Combs testified that he was responsible for the work camp and the supervision of the correctional officers assigned there. He also testified that he would occasionally supervise correctional officers who normally worked in the main prison. Mr. Combs testified that Mr. Hilliard was his primary source of Oxycodone and that Mr. Hilliard occasionally worked at the work camp. Mr. Combs was aware that two Florida State Prison employees who worked directly under him (Sergeant Jesse Oleveros and Sergeant Evan Williams) were purchasing Oxycodone from Mr. Hilliard. Mr. Combs testified that he allowed Mr. Oleveros and Mr. Williams to leave Florida State Prison grounds six or seven times in order to purchase Oxycodone from Mr. Hilliard. Mr. Combs testified that Mr. Oleveros and Mr. Williams would give him an Oxycodone pill after returning from their transactions with Mr. Hilliard. Mr. Combs acknowledged during his testimony that DOC policy prohibits correctional officers from leaving prison grounds during their shift. Mr. Combs acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs also acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to be on prison grounds with illegal narcotics. Finally, Mr. Combs acknowledged that as a sworn officer with the Department of Corrections, he had an obligation to report any criminal activity committed by a correctional officer working at Florida State Prison, regardless of whether that correctional officer reported to him. Findings of Ultimate Fact An examination of the circumstances associated with Mr. Combs’ Oxycodone purchases from Mr. Hilliard demonstrates that there is a nexus between Mr. Combs’ employment as a correctional officer with DOC and his commission of the crimes to which he pled nolo contendere. For instance, Mr. Combs came to know his primary source of Oxycodone (Mr. Hilliard) through their mutual employment with DOC. Indeed, Mr. Combs supervised Mr. Hilliard when the latter was assigned to the work camp at Florida State Prison. Also, Mr. Combs knew that these transactions were illegal. As noted above, he and Mr. Hilliard used a code based on car part references to disguise the actual subject of their communications. Contrary to DOC policy and Florida Law, Mr. Combs allowed two of his subordinates (Mr. Oleveros and Mr. Williams) to leave Florida State Prison during their duty shifts in order to purchase illegal drugs from Mr. Hilliard. Mr. Combs would then receive a free pill from Mr. Oleveros and Mr. Williams. Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced price. It is reasonable to infer that Mr. Combs received this discount due to his high-ranking position at Mr. Hilliard’s place of employment and because Mr. Combs facilitated Mr. Oleveros and Mr. Williams’ purchases of Oxycodone from Mr. Hilliard. Mr. Combs willfully violated DOC policy and Florida law by allowing correctional officers to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs knowingly violated his obligation as a sworn correctional officer by not reporting the criminal activity committed by Mr. Hilliard. Mr. Combs defrauded the public from receiving the faithful performance of his duties as a correctional officer. The public had a right to expect that one of its employees would not purchase drugs from someone he supervised. The public also had a right to expect that Mr. Combs would not use his authority at Florida State Prison to facilitate Mr. Hilliard’s illegal drug sales to other DOC employees. In addition, the public had a right to expect that Mr. Combs would not engage in illegal transactions on the grounds of Florida State Prison. Mr. Combs realized a profit, gain, or advantage through the power or duties associated with his position as a Major at DOC. Specifically, Mr. Combs satisfied his Oxycodone habit through purchases made from a DOC employee who he supervised. Also, Mr. Combs used his position to facilitate other sales by Mr. Hilliard, and Mr. Combs’ assistance led to him receiving free Oxycodone and a discounted price on his Oxycodone purchases. The findings set forth above in paragraphs 49 through 57 are the only ones needed to establish a nexus between Mr. Combs’ public employment and the two counts to which he pled nolo contendere. That nexus is evident from Mr. Combs’ testimony, Mr. Combs’ Responses to the SBA’s Requests for Admissions, and the Stipulated Facts. It was not necessary to consider the exhibits to which Mr. Combs raised objections, i.e., the arrest warrant, the warrant affidavit, and the audio recordings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 10th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2016.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: l. The Petitioner, Terry Wooden, a black male, was hired by the Respondent, State of Florida, Department of Corrections, on December 5, 1980 as a Correctional Officer I at River Junction Correctional Institution. River Junction Correctional Institution (RJCI) is a secure facility responsible for the care, custody and control of certain inmates. Correctional Officers are assigned to security posts which are located throughout the facility. Some "inside" security posts are located within inmate dormitories. Outside perimeter security posts, which are small tower-like buildings, are located along the perimeter fence and are the last observation posts between containment and possible inmate escape. For security reasons, the Respondent prohibits sleeping on the job and requires its correctional officers to remain alert at all times. Supervisors (generally employees holding the rank of sergeant) often make "rounds" of the facility wherein security posts are visited to ensure that the officer on, duty at that post is alert. RJCI procedure requires that an officer on duty at a security post "challenge" a supervisor or other correctional officer who approaches the security post. When a supervisor enters a dormitory, the officer assigned to that post is required to challenge that person by immediately leaving the officer's station (located within the dormitory) to meet the approaching person. If the officer is on the telephone or engaged in some activity, it is acceptable for the officer to wave his hand to the approaching person or indicate in some other manner that he is aware that someone has entered the area. When a supervisor approaches an outside security post, the officer on duty is required to meet the approaching individual at the door of the building. Discipline of employees at RJCI is based on a progressive system. During the time the Petitioner was employed at RJCI, a sergeant was required to report a sleeping/unalertness violation by a correctional officer to the shift lieutenant (supervisor of all employees on a particular shift). There were no written guidelines and the reporting officer was required to exercise some discretion in determining whether he believed that an offense had been committed. On the first incident, the shift lieutenant would counsel the employee about the infraction, but no written report was made. On the second report of an offense to the shift lieutenant, a written report of the incident would be prepared by either the reporting officer or the shift lieutenant. The shift lieutenant would interview the employee about the alleged violation and refer the report to the department head (correctional officer chief). The department head would then submit the written report to the personnel manager with recommendations. Upon receiving a written report of an infraction from the department head, the personnel manager would gather information pertaining to the offense and give it to the superintendent, along with recommendations for disposing of the case. The superintendent would then schedule a "predetermination conference", confront the employee with the allegations and determine the disciplinary action to be taken. Prior to 1979 and until June 1982, L. C. McAllister, a white male, was superintendent at RJCI; from June 1982 to December 10, 1982, George Ragans, a white male, was acting superintendent at RJCI; from December 13, 1982 through August 1983, Ken Snover, a white male, was superintendent at RJCI. Each superintendent was responsible for determining the particular penalty to be imposed using guidelines set forth in Chapter 33, Section 9 of the Rules of Personnel. Generally, the employee's first sleeping/unalertness violation reported to the personnel manager, and ultimately, the superintendent, would result in counseling (oral reprimand); the second violation would result in a written reprimand; the third violation would result in a suspension; the fourth violation would result in a longer suspension or dismissal; and, the fifth violation would result in dismissal. Major Miles, a white male, is a department head and functions as the overall supervisor of correctional officers at RJCI. Miles assigns posts and shifts to correctional officers. Major Miles usually assigns new correctional officers to midnight shift after they complete orientation. After Petitioner completed his orientation period, he was placed on midnight shift (12:00 p.m. to 8:00 a.m.) and assigned to Post 23 in "G" dormitory. The Petitioner completed his one year probationary period on December 5, 1981. The Petitioner was assigned an overall rating of "satisfactory" by his shift supervisor, Lieutenant Carter, a black male. The evaluation stated that Petitioner got along well with supervisors and fellow employees. In December of 1981, Lieutenant Childs, a white male, became the Petitioner's shift supervisor. Initially, the Petitioner and Lieutenant Childs enjoyed a friendly relationship. Lieutenant Childs drove the Petitioner to work on several occasions and both men shared a common interest in sports. On December 13, 1981 an officer made a routine check of "G" dormitory and found Petitioner asleep in the officer's station. The Petitioner was counseled about this first infraction. Shortly after Petitioner's sleeping incident of December 13, 1981, Major Miles changed Petitioner's post assignment from dormitory to Perimeter Post 3. Major Miles changed Petitioner's post because several inmates had complained to him that a lot of stealing was taking place and that Petitioner was not watchful enough to prevent it. The inmates also complained that Petitioner's counseling style seemed like harassment. After Petitioner's post was changed from "G" dormitory to Perimeter Post 3, his relationship with Lieutenant Childs began to turn sour. The Petitioner was "concerned" because he believed that Lieutenant Childs had input into Major Miles' decision to reassign him. On May 10, 1982, Lieutenant Childs found the Petitioner unalert at Perimeter Post 3. The Petitioner received a written reprimand for this second infraction. On August 19, 1982, Sergeant Pollock, a black male, found Petitioner unalert while on duty at Perimeter Post 3. Sergeant Pollock reported the incident to Lieutenant Childs but suggested that Petitioner be counseled rather than "written-up". Sergeant Pollock believed that a lesser punishment might encourage Petitioner's improvement. Lieutenant Childs told Pollock to think about it for a couple of days. On August 21, 1982, Sergeant Parks and Sergeant Tharpe found Petitioner unalert at his post. When Sergeant Pollock discovered this incident, he changed his mind about his previous recommendation to Lieutenant Childs. Childs told Pollock to submit a written report. The Petitioner was suspended for 3 days for these third and fourth sleeping/unalertness infractions. On September 2, 1982, Lieutenant Childs completed an employee rating evaluation on Petitioner for the period September 1, 1981 to September 2, 1982. Petitioner was given an overall rating of "satisfactory", but Lieutenant Childs noted several areas of concern. Lieutenant Childs mentioned that Petitioner seemed to interpret counseling sessions "as personal threats conspired, for no bonafide reason to harass him." However, Lieutenant Childs went on to note that Petitioner's attitude and work performance was improving and that Petitioner was "making a definite and positive effort to correct his shortcomings." On October 28, 1982 an inmate escaped from RJCI. At the time of the inmate's escape, Petitioner was on duty at Perimeter Post-3 and William Chessher, a white correctional officer, was on duty on Perimeter Post 2. Major Miles, the department head, recommended that both men be disciplined for being unalert. Because the inmate's escape route took him through Perimeter Post 3's primary area of responsibility, Major Miles recommended that Petitioner be dismissed; Miles recommended that Chessher be reprimanded or suspended because the escape route was along Perimeter Post 2's secondary area of responsibility. On November 18, 1982, Acting Superintendent George Ragans held a predetermination conference concerning Petitioner's October 28, 1982 unalertness charge. Mr. Ragans found that the offense was substantiated but did not follow Major Miles' recommendation that Petitioner be dismissed. Ragans suspended the Petitioner for fifteen (15) days for this fifth sleeping/unalertness violation. Immediately following the November 18, 1982 predetermination conference, Ragans suggested to Petitioner that Petitioner should request a shift change. However, Petitioner explained to Ragans that he had a new baby at home, was taking college courses and did not want a shift change at that time. When Petitioner returned to work on December 16, 1982 after his fifteen (15) day suspension he had decided that he wanted a shift change. Petitioner went to the control room to find out how to submit a shift change request. In the control room, Petitioner spoke with a female officer concerning the procedures for requesting a shift change. The female officer agreed to type a shift change request for Petitioner. The female officer typed the request and gave Petitioner a copy. Shift change requests are directed to the shift lieutenant, in this instance, Lieutenant Childs, who then passes the request to Major Miles for final action. The female officer told Petitioner that she would put the original request for shift change in Lieutenant Childs' box in the control room. For some reason, Lieutenant Childs never received Petitioner's written request for shift change. In January 1983, the Petitioner spoke with the new superintendent, Ken Snover, regarding a shift change. Mr. Snover told Petitioner to proceed through the change of command and if he was still not satisfied, to return and speak with him again. One night, while on duty sometime after December 16, 1982 Petitioner asked Lieutenant Childs about a shift change. Lieutenant Childs told Petitioner that there were going to be a lot of changes made. Petitioner spoke to Major Miles on one occasion after December 16, 1982 and asked about a shift change. Major Miles told Petitioner to submit a written request. Major Miles never received a written request for shift change from Petitioner. Sometime prior to August 1, 1983, Petitioner was temporarily assigned to "G" dormitory and worked with officer Gano, a white male. Gano complained to Lieutenant Childs that Petitioner was sleeping on duty. Before Gano complained to Childs, Childs had received allegations of Petitioner being asleep from other correctional officers. Because of those complaints, Childs had instructed two sergeants to closely review Petitioner's dormitory work habits. On one occasion, the sergeants told Lieutenant Childs that Petitioner appeared to be asleep while on duty. On August 1, 1983, Lieutenant Childs instructed officer Gano to let him know if Petitioner was sleeping by giving a pre-arranged signal. Officer Gano found Petitioner asleep or "non-alert" and gave the pre-arranged signal. Lieutenant Childs entered the dormitory without Petitioner challenging him and found Petitioner unalert. Lieutenant Childs wrote a report on Petitioner's sixth sleeping infraction. Superintendent Ken Snover held a predetermination conference concerning Petitioner's August 1, 1983 unalertness charge. Snover ordered the Petitioner's dismissal, effective August 18, 1983. Steve Williams, a white Correctional Officer I, was caught sleeping on April 20, 1981 and was given an oral reprimand for this first offense. Williams was caught sleeping again on June 21, 28, and July 31, 1981. Because of the personnel manager's vacation a predetermination conference letter could not be sent until after the third occurrence and all three violations were addressed at the same conference. Williams was given a written reprimand for this second sleeping infraction. Thomas Jackson, a black Correctional Officer I, was caught sleeping on October 29, 1982 and was given an oral reprimand for this first offense. On May 13, 1983, Jackson was caught sleeping a second time and was given an official reprimand. On August 10, 1983, Jackson was caught sleeping a third time and was suspended for one week (5 working days). Jackson was offered and accepted a shift change, from midnight to evening shift. Dennis Edwards, a white Correctional Officer I, was caught sleeping in July 1982 and was counseled for this first offense. In Apri1 1983, he was caught sleeping again and was given a written reprimand. In July 1983, Edwards was suspended for 5 working days because of his third offense of sleeping while on duty. Larry Garrett, a black Correctional Officer I, was counseled for sleeping on duty for his first offense, but no documentation was made to his personnel file. On September 5, 1981 Garrett was caught sleeping a second time and was given a written reprimand. On December 3, 1981, Garrett was caught sleeping a third time and was suspended for three days. Garrett was offered a shift change, but declined because he was taking classes and had a newborn baby. On December 16, 1981, Garrett was caught sleeping for the fourth time and was terminated. Michae1 Weeks, a white Correctional Officer I, was caught sleeping on June 9, 1981 and was given a written reprimand for this first offense. On May 10, 1982 he was caught sleeping a second time and was given a written reprimand. Weeks was caught sleeping again on August 1, 8 and 10, 1982. Weeks was given a predetermination conference letter, but before the hearing was held, he was caught sleeping again on August 18, 1982. Weeks voluntarily resigned on August 18, 1982. Warren Harris, a black Correctional Officer I, was caught sleeping on November 29, 1979 and was given a written reprimand for this first offense. On June 13, 1981, Harris was caught sleeping again and was given another written reprimand. On September 9, 1981, Harris was caught sleeping for the third time and was suspended for three days. Harris was caught sleeping again on October 28 and 29, 1981 for his fourth offense. Harris was given a letter of termination, but resigned before the termination took effect. Harold Bailey, a white Correctional Officer I, was caught sleeping on June 14, 1982 and was counseled for this first offense. Bailey was caught sleeping again on July 17, 1982 and was given a written reprimand. On January 5, 1983 Bailey was caught sleeping on duty for the third time and was suspended for five days. On April 2, 1983, Bailey was charged with a fourth offense but Superintendent Snover found the allegations "unsubstantiated." Nevertheless, Bailey was counseled and documentation of the incident was placed in his personnel file. Bailey was offered a shift change but he refused it. Bailey's shift was later changed. In an effort to assist employees who were working midnight shift and having problems staying awake, the personnel manager and the superintendent would sometimes offer the employee a shift change or encourage the employee to seek a shift change. At various times, both black and white employees were offered, or encouraged to seek shift changes when they were having trouble on midnight shift. From time to time, correctional officers would submit requests for shift and/or post changes. Major Miles, the department head, usually made shift or post changes based on an individual's written request and the needs of the institution to have certain security posts staffed. Major Miles made some shift and post changes without a written request and over the objection of the employee if it was required by the needs of the institution. Shift and post changes at RJCI were given to both white and black employees in a substantially similar manner. Lieutenant Childs, upon receiving a request for a shift or post change, was required to forward the request to Major Miles for final action. Lieutenant Childs would forward a request for shift or post change with a favorable recommendation only if he believed the employee "earned" the recommendation by good performance on his current shift or post. As shift lieutenant, Childs was authorized to make some temporary post re-assignments for employees on his shift. During the last several months of Petitioner's employment, Petitioner was permanently assigned to Perimeter Post 3, but Lieutenant Childs temporarily assigned him to a post in "G" dormitory. While Petitioner was temporarily assigned to "G" dormitory, Lieutenant Childs became aware through "the grapevine" that Petitioner wanted to have Mondays and Tuesdays off, rather than Tuesdays and Wednesdays. Because different post assignments, carried different days off, a change in days off would have required a post change. Lieutenant Childs told Sergeant Pollock to tell Petitioner that he would arrange for Petitioner to have the desired days off as soon as possible if Petitioner's work performance improved. In January 1983 a new Department of Corrections directive required that certain correctional officers receive 160 supplementary hours of training. A majority of the staff at RJCI was required to complete the supplemental training. From January 1983 through August 1983, personnel at RJCI were engaged in the on-going training program. One set of training classes were scheduled from 9:00 a.m. to 1:00 p.mand another set of classes were scheduled from 6:30 p.m. until 10:30 p.m., five days a week. During the period from January 1983 through August 1983, shift and post changes were made primarily to allow correctional officers the opportunity to attend the training sessions as required. As superintendent of RJCI, Ken Snover conducted "predetermination conferences" wherein he was required to review allegations, determine whether or not the charges were substantiated and then decide what disciplinary action to take. Superintendent Snover did not apply a lesser standard of proof at predetermination conferences where Petitioner was charged with sleeping/unalertness violations than he applied when white officers were involved. On one occasion Snover found that the allegations of sleeping were not sufficient to warrant disciplinary action against two white employees, Harold Bailey and Walter Dean, where the allegation was made by one sergeant but denied by both correctional officers. At the predetermination conferences that Snover conducted where Petitioner was charged, the allegations were all substantiated by one or more individuals and denied only by Petitioner. Perimeter Post 3 as well as other perimeter posts, are isolated outside security posts and are generally not considered to be the most desirable security post assignments. Both black and white officers were assigned to Perimeter Post 3 and other perimeter posts. A slight majority of the correctional officers permanently assigned to perimeter posts were black. There was no indication that correctional officers were assigned to Perimeter Post 3 on a racial basis nor as a "set up" to achieve dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Terry Wooden. DONE and ORDERED this 8th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day September, 1986. COPIES FURNISHED::: Drucilla E. Bell, Esq. Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Marva Davis, Esq. 379 E. Jefferson Street P. O. Drawer 551 Quincy, FL 32351 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esq. General Counsel Florida Commission on. Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 3230 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 21. The first sentence is rejected as a recitation of testimony. The second sentence is rejected as not supported by Competent substantial evidence. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 20 and 30. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 4. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence and/or misleading. Rejected as not supported by competent substantial evidence. 14A. Rejected as subordinate. 14B. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. 15A. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 15B. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 16A. Adopted in Finding of Fact 20. 16B. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 5. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as misleading and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 25 and 26. Partially adopted in Findings of Fact 27,^ 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 26, 27, 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 39, and 41. Matters not contained therein are rejected as subordinate, misleading and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as not supported by competent substantial evidence. (No paragraph 34). Partially adopted in Finding of Fact 43. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 48. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as subordinate. Adopted in Findings of Fact 12 and 15. Partially adopted in Findings of Fact 16 and 17. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 5 and 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. - Adopted in Findings of Fact 19 and 20. Partially adopted in Finding of Fact 17. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 27. Matters not contained therein are rejected as subordinate. Rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 27, 28 and 29. Adopted in Finding of Fact 44. Adopted in Finding of Fact 48. Partially adopted in Finding of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 39 and 47. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 36. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 33. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 38.
Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent operated the Mayo Correctional Facility, (Mayo), and employed the Petitioner, William M. Dunwoody, (Dunwoody), there as a Corrections Officer 1, (CO1). He was hired by the Respondent on December 3, 1983 and served at Cross City Correctional Institution until his reassignment to Mayo in 1985. He served at Mayo from that point until his employment with the Department was terminated on August 30, 1991. Wayne Winburn has been the recreational therapy director at Mayo since December, 1984. In that capacity, he provides recreational activities, including basketball, football, soccer and board games, some supervised and some not, to the facility's inmates. Petitioner worked for him for two years in 1990 and 1991, and in Winburn's opinion, did a good job despite his asthma condition which got progressively worse during the period of employment. At first, Petitioner worked in the office, but as his condition worsened, Mr. Winburn assigned him to outside work, because numerous people who were smokers, including Winburn, who is a chain smoker, would come into the office during the day, and their smoking made breathing difficult for Petitioner. At the time Petitioner worked there, the recreation office was a small room, much of which was used for the storage of supplies. There was a window, which was blocked, as well as an air conditioner in addition to a dutch door. However, it was difficult at best to keep smoke out of the area. As a result, Mr. Winburn attempted to impose the no-smoking rule for that area and bar any smoking there at all. He suggested that to his supervisors but they did not readily endorse his proposal. At one point, when Petitioner was working for Mr. Winburn, he brought in a doctor's certificate which indicated he should be in a smoke-free environment. When Winburn received the note, he took it to his supervisor, the personnel director, Mr. Witt. At the same time, he wrote a memorandum to Mr. Davis, the Assistant Superintendent, indicating his desire to provide Petitioner with a smoke-free environment. To accomplish that end, he suggested that smoking not be permitted in either the recreation office or the storage room. Shortly thereafter, Petitioner was notified by a letter from Mr. Mathis, the Superintendent, stating that he had given instructions to place Petitioner in a position which would limit his chances of coming into contact with tobacco smoke. This was assignment to a perimeter position, outdoors, on the midnight shift. Shortly thereafter, Petitioner requested a shift change which was denied, and on November 5, 1990, he filed a grievance citing the institution's failure to approve his shift change. Mr. Locke, the Corrections Officer Supervisor, denied Petitioner's request for shift change because he was attempting to keep Petitioner away from cigarette smoke. Before putting Petitioner on perimeter duty, Locke and his staff looked at all 156 security positions that could be filled by a CO1 and found that none would keep Petitioner away from smoke as well as a perimeter post. Most COI positions are dormitory officer positions and smoking is permitted in the dormitories. When the vacant day position for which Petitioner had applied was filled, it was filled with someone with more seniority that Petitioner. Perimeter posts are located at each of the four corners of the facility. There is a truck parked at each for the guard to use, but during foggy weather, the guard is required to stand outside the truck in order to see and hear better. This procedure was established after Petitioner was assigned perimeter duty. Mr. Locke did not feel it was his responsibility to evaluate whether the change from recreation to perimeter duty was helping or hurting Petitioner's asthma condition. He only knew he had to find Petitioner a job which reduced his exposure to smoke and he did that. He did not believe it was his determination to make whether it worked or not was not. As chief correctional officer at Mayo, Mr. Locke considers the perimeter posts as among the most important positions in the institution. They are the last line of defense between the convicted inmate and the public. Perimeter guards are the only armed guards at the facility. Guards are not routinely rotated to and from that position. Instead, changes come about as the result of a request for shift change. Some CO's have been on perimeter duty for a long time and don't want to change. Petitioner's request for change was not only of shift but of post as well. He wanted to change from a job which had Tuesday and Wednesday off to one which had Saturday and Sunday off. Until he was advised Petitioner could not enter a smoke filled environment, Mr. Locke had no reason to feel Petitioner could not perform any job. Only when he learned of Petitioner's problem with smoke were any restraints on his assignments considered. DOC rule 22A-8.011 concerning medical excuses requires a doctor's excuse after the third day of an absence, but in the case of an employee who has a preexisting tendency to call in sick, local policy, provided for in the rule, calls for a doctor's excuse right away. This provision was applied not only to the Petitioner but also to several other officers who took a lot of time off. There was some suspicion among his supervisors that Petitioner might have been taking sick leave to get long weekends. Mr. Locke felt Petitioner was taking excessive time off, some of which, it appears, was not related to his illness. To determine if this was true, in September, 1990, Mr. Davis asked Mr. Witt, the personnel manager at Mayo, to prepare a ledger of Petitioner's days off. The tally showed a disproportionate number of leave days were used immediately before and after Petitioner's scheduled days off of Monday and Tuesday over the preceding year. Including holiday leave, Petitioner had taken 37.25 days off. Just after Witt put this information together, but before he had an opportunity to show it to Mr. Davis, Mr. Winburn brought up the issue of Petitioner's asthma and the doctor's note. Sometime later, Mr. Witt also defined Petitioner's time off during that portion of 1991 which he worked. Institutional records show he took 241 hours of authorized leave without pay and 406.5 hours of unauthorized leave without pay. According to Witt, that is an exceptional amount of time off - more than Witt has seen taken by any other employee during his 9 years experience at Mayo. Mr. Mathis, the institution Superintendent, cannot recall the exact date he became aware of Petitioner's asthmatic condition, The information was given to him by Mr. Witt who presented him with the doctor's note. As he recalls it, that note said Petitioner should be placed on 100 percent medical disability or in a smoke-free environment, and that further excessive exposure to cigarette smoke could cause permanent damage. When he got this information, Mr. Mathis directed Mr. Davis, his assistant, to come up with an appropriate assignment for Petitioner to get him out of harm's way. Davis, after consultation with Locke and others, recommended the perimeter post. Mathis also contacted Department officials in Tallahassee about the situation but did not contact the doctor for further input nor did he call in Petitioner to discuss the matter with him. Because he could not define the term "reasonably smoke free" as used by the doctor, Mathis chose to put Petitioner in a "smoke free" environment concluding this is what was called for by the terms of the medical note. Before making this decision, Mathis had received the memorandum from Mr. Winburn to Mr. Witt which recommended making the recreation office a nonsmoking area. For several reasons, including the fact that the recreation office was just next to the canteen where cigarettes were sold, was too far removed from the office for adequate enforcement, was frequently visited by staff and inmates who were smoking, and because Winburn was a chain smoker, Mathis declined to follow Winburn's recommendation and agreed with that of Locke and Davis to place Petitioner on midnight shift perimeter duty. Petitioner was specifically told this was not to accommodate a medical disability but only to get him away from cigarette smoke until further information was received from his doctor. Though he did not speak directly with Petitioner, Mathis stated this in his letter to Petitioner advising him of the change. Mr. Mathis did ultimately communicate with Petitioner's doctor. In one contact, Dr. Rawls noted that Petitioner "... has no specific limitations." Mathis did not interpret the doctor's comments about damage from exposure to smoke as being limited to only in an enclosed area. He considered there to be a contraindication to smoke exposure at all, and this is not an unreasonable interpretation, especially in light of the doctor's comments recommending 100 percent medical disability. On January 1, 1991, Petitioner again called in sick. On January 24, 1991 he was instructed to bring a medical excuse from his physician but did not do so even after a second request on February 1, 1991. As a result, disciplinary action was taken. In February, 1991, Mr. Mathis again contacted the doctor after the issue of cold night air came up. This happened after Petitioner filed his grievance about not getting a shift change. Petitioner's request to be assigned to the day shift with Saturdays and Sundays off was neither a request for reassignment nor transfer which are covered by Article 9 of the union contract. Instead, he was seeking a shift change and there is a separate procedure for that which he either was or should have been aware of. Shift changes are covered by Article 23 of the contract, but both Articles make reference to the needs of the agency, to seniority, and to employee preference, in that order. In May, 1991, Petitioner was directed by the Superintendent to have a medical examination by a physician in Gainesville, Dr. Wynne, at the Department's expense to determine the nature and extent of his illness because Petitioner was not coming to work regularly. Doctor Wynne rendered his opinion that Petitioner suffered from "mild asthmatic bronchitis" which was well controlled by medications but that he could perform all the duties of a Corrections Officer, so long as exposure to cigarette smoke could be minimized. That same month, Petitioner again failed to report for duty and failed to notify his immediate supervisor prior to the intended absence. On July 18, 1991, Mr. Witt sent a certified letter to Petitioner, who had been away from work since sometime in June, 1991, advising him to return to his duties or provide a certification of a medical reason to remain away. Petitioner had called in on July 16, 1991, indicating his attorney had recommended he ask for leave until his discrimination complaint was settled, but that he would be in on July 18, 1991 at the suggestion of Mr. Witt. Petitioner did not appear as indicated. With again wrote to him instructing him to come to work immediately and provide medical certification for his absences subsequent to June 27, 1991. On August 9, 1991, Mr. Mathis notified Petitioner by certified mail that disciplinary charges had been prepared alleging excessive absences, absence without authority, and failure to follow written and verbal instructions, and that these charges could result in his being dismissed as of August 26, 1991. This action was based on repeated prior notifications in writing by management to Petitioner concerning the absentee problem as evidenced by the memorandum prepared in June and July, 1991. On August 19, 1991, Petitioner, through counsel, formally requested leave without pay until resolution of his charge of discrimination filed with the Commission. This was supported by a letter from Petitioner's physician dated August 13, 1991 citing stress at work resulting in depression coupled with asthma. Nonetheless, by letter dated August 30, 1991, Petitioner was dismissed from employment with the Department as of that date. The bases for dismissal were those matters cited in Mr. Mathis' letter to Petitioner of August 9, 1991. Department Rule 33-20.001 makes all indoor areas used for common purposes nonsmoking areas unless otherwise designated. In September, 1990, dorms, common inmate areas (except CO work stations), and offices used by smokers at Mayo were designated as smoking areas. Nonsmoking areas included medical and food preparation areas, transfer vehicles, and some others. The choice of designating an area as either smoking or nonsmoking is up to the head of the department using it. Therefore, if Mr. Winburn wanted to make the recreation office a nonsmoking area, he could have done it. The Department has a policy that all COs must be able to perform all CO assignments. Mr. Mathis wrote to Dr. Rawls asking when he felt Petitioner could be assigned other work without reference to a smoking restriction. It was not Mathis' intention to keep Petitioner on perimeter post indefinitely. Petitioner could have been assigned to other areas away from smoke such as the medical section, the control room, or medical escort duties, but he never applied for any of those positions when they were open. At the time of the doctor's note, only the perimeter post was open and as a result, Petitioner was assigned there. Had he applied for another post when one came open, he would have been considered for it. Petitioner's request for transfer to a different shift on perimeter was denied because under the contract the Department had with the union, the opening had to go to Mr. Hawkins who was senior to Petitioner. There are several other reasons listed in the contract for restricting the duty assignment of COs. Included are nepotism, the prohibition against female officers working alone in dormitories, and illness, and there is also a provision for alternate duty for COs who have been injured in the line of duty. All are legitimate. One of the considerations in assigning Petitioner to perimeter duty was the potential liability to the state if he were not moved, in light of the doctor's comments about his condition. Petitioner relates he was first diagnosed as having asthma when he was 9 years old. Nonetheless, he played all sports without difficulty as a youth. He indicates his attacks now are brought on by tobacco smoke and other materials such as dust, chemicals, and vehicle fumes. When an attack comes on, he uses an inhaler and takes prescription medications. With it all, he does not voluntarily restrict his activities because of his condition and periodically enters buildings where smoking is allowed. Sometimes it triggers an asthma attack and sometimes it doesn't. Mr. Dunwoody started working at Mayo in 1985 as a dormitory relief officer with Sundays and Mondays off. Smoking was permitted in the dormitories and it was sometimes irritating to his condition. Nevertheless, he stayed in that job until, at his own request, he was transferred to the recreation section so he could be away from the smoke. His early ratings showed he either achieved or exceeded standards, but in 1987 he received a rating which referred to excess leave due to family illness. In that regard, he indicates, his daughter has cystic fibrosis. While at recreation, Petitioner worked both the 8 - 4 and the 12 - 8 shifts. He was outdoors most of the time when the weather was good. He worked with 2 officers and at least 3 inmate clerks. Nobody would smoke when he was around in deference to his condition. He claims to have gotten along "great" with Mr. Winburn. He was also trained for the institution's confrontation team but was taken off that duty because of the potential conflict his asthma might cause. He did not file a handicap discrimination complaint because of that action. In September, 1990, after a bout with asthma, he went to see Dr. Rawls, by whom he has been treated since childhood, who told him he should either get a job in a smoke-free environment or a 100 percent disability. At first, Petitioner did not report this to Mr. Winburn for fear he would be removed from recreation because of it. When he did give the note to Winburn, about a week later, Winburn took it to Mr. Davis with the recommendation for a smoke free status in recreation. Petitioner was happy about that. However, on October 10, 1990, he got the letter from Mr. Mathis stating he was being moved to a perimeter post. At first, he didn't know which post it would be. Only when he went to work on the follow Saturday, October 13th, was he told to come back that night as he was to be on the night shift. On his way out of the building, he saw Mr. Mathis who at first said he was too busy to talk. However, when he saw Mathis again shortly thereafter, Petitioner asked him about the letter and Mathis replied there should be no smoking "out there" without further explanation. Petitioner did not report for duty that night because he was "mentally not functioning." When he did come in at midnight on October 18, 1990, he was told where he was going to be posted. On October 29, 1990, because he had noticed an opening on a day shift, Petitioner submitted a request for a shift change from the midnight shift to the day shift to his immediate supervisor, Lt. Fales. Fales indicated he would approve it only if he got a replacement for Petitioner. When the response came through several days later, Petitioner found his request had been denied for "medical reasons" but he was never given any further explanation. On November 5, 1990, he filed a grievance for the failure to approve his request for shift change. During the meeting on the grievance Petitioner had with Mr. Davis, he was told the shift he had applied for was not available because the slot was to be filled by another CO with more seniority. This was true. Petitioner objected to the assignment to perimeter duty for several reasons. First, he felt it was an entry level position and his five years of experience as a CO merited a higher level position. Second, it was isolated. Compounding that was the fact he was prohibited from even entering the compound while on duty except to go to the security building and the medical facility. To his knowledge, he was the only CO on whom these limitations were imposed and when he asked a supervisor why this was done, he got no answer. He felt this placement diminished his status and reputation among his fellow COs, limited his promotion potential, and, though he never was reduced in pay, he considered it as a demotion. He also discussed with Lt. Fales, one cold night when Petitioner was not feeling well, the problem he was having regarding the cold night air. Fales sent him to the clinic but would not let him go home because he was operating on minimum compliment. Fales called the nurse who indicated Petitioner's temperature, pulse and respiration were all within normal limits, and when Petitioner got back and Fales told him what the nurse had said, he began to argue and had to be ordered back to work. The verbal altercation which transpired was memorialized by Fales in an incident report dated January 3, 1991. The following day, Mr. Locke gave Petitioner a memorandum noting his frequent absences and outlining the req uirements imposed to monitor his further absences. At that time he had an opportunity to discuss the matter with Mr. Locke but did not do so because Locke "looked to be very busy." Petitioner was hospitalized during December, 1990 for 5 days. Between December 14, 1990 and January 2, 1991, he was on leave without pay for 108 hours, and on January 2, 1991, he was released for return to duty by Dr. Martin at the Tallahassee Neurological Clinic. On January 21, 1991, he called in sick. On January 24, 1991, he was instructed by Lt. Funderburk to bring in a medical certificate from his doctor outlining his condition and the reason for his absence. On February 1, 1991, when he had failed to bring it, he was again requested to bring in the certificate but as of February 5, 1991, had not done so. At that time, Funderburk filed an incident report pertaining to the matter. Petitioner claims that at no time did Mr. Mathis, Mr. Davis or Mr. Locke speak with him about his medical condition and neither did Mr. Witt until he requested a leave of absence in the summer of 1991. On June 24, 1991, Petitioner failed to report for duty on to call in in advance as required. When he finally called, almost 1 1/2 hours late, he indicated he did not know when he could report and explained his tardiness as well as his absence on June 23, 1991 as being because he "did not feel good." This incident resulted in the filing of an incident report. Petitioner also contends that the perimeter post afforded him no relief since factors other than smoke were equally as devastating to his condition. The cold night air, heat depending on season, the smell of insect repellant, the engine fumes from the vehicle he had to sit in, all negatively impacted him. He claims it was worse than being in the recreation area from which he would periodically enter the dormitories to use the bathroom. While the smoke in the recreation office bothered him, at no time did the smoke in the dormitory do so. Therefore, Petitioner does not accept the agency excuse that he could not be given a post inside the perimeter because he might have to go into smoking areas at times. He further asserts his belief that his attendance record could have improved if his disability had been reasonably accommodated. Petitioner resented being prohibited from entering the compound except for the security and medical buildings. He knows of only two other COs who faced the same restrictions, and both were under a disciplinary cloud at the time. He disagrees with the contention it would be hard to make the recreation office nonsmoking. The inmates knew of his reaction to cigarette smoke, he claims, and, historically, would extinguish their cigarettes when they saw him coming. Petitioner attributes his attendance problems to the change in his posting from the recreation center to the perimeter and the loss of his grandmother at just about the same time. He could not get used to working nights, and the conditions on the perimeter post combined to create a problem for him. Nonetheless, in February and March, 1991, his attendance improved, but in April his problems got the best of him and he admitted himself to the Tallahassee Psychiatric Clinic. He was drinking and, at one point, using cocaine. However, at no time did he ever ask to participate in the institution's Employees' Assistance Program designed to assist troubled employees with getting help for their problems. This program is designed to deal with alcohol, drug, family and work problems, not disabilities. While claiming his posting to the perimeter and the conditions there caused his deterioration, he admits he was not required to do anything more than was required of any other CO on perimeter duty. When Petitioner was first hired at Mayo, he listed his asthma condition on his application but did not claim it as a disabling handicap condition. Notwithstanding his claims that his attendance problems commenced with his posting to the perimeter, at least one earlier performance report during the periods 1983 to 1984, and 1986 to 1987 reflected he was counselled about attendance and leave problems. Petitioner denies that his sick days on Saturdays and Sundays were timed to get long weekends. He claims his repeated absences were due not only to asthma but also to the depression he was experiencing because of his working conditions. He admitted himself to the Tallahassee Psychiatric Clinic for 10 days or so in April, 1991 where he was treated by Dr. Chockhwala and Mr. Edwards, a psychiatrist and psychiatric social worker, respectively. Doctor's notes for that time reveal Petitioner felt his work problems were racially motivated and his assignments were punishment for being assertive about his asthma condition. In August, 1991, Dr. Chockhwala, in his report to Mr. Mathis, noted the combination of stress, asthma and depression and recommended Petitioner be placed on indefinite leave," until his stamina returns, he is reassigned to a less stressful situation, when the weather changes, or he can be placed at another facility." On August 9, 1991, by certified mail, Mr. Mathis advised Petitioner of his right to attend a predetermination conference relative to his absences and the proposed agency action. Though the Mathis letter indicated disciplinary action would be taken on August 26, 1991 if Petitioner did not request a conference, at hearing Petitioner treated the matter as though he had been directed to attend a conference on a day certain and failed to attend because he was sick that day. At some point in that period, Petitioner contacted Mr. Witt who advised him the agency planned to proceed with action based on the record available. Petitioner claims that though he wants to be reinstated as a CO, he would not want to work at Mayo even though he felt support from his fellow COs. According to Hal Johnson, General Counsel to the Florida Police Benevolent Association and chief negotiator for the union in its collective bargaining with the Department of Corrections, reassignments are covered by Articles 9 and 23 of the contract. Article 9 defines a reassignment as moving an employee from one position in a class to another position in the same class or to a different position in a different class. Article 23 indicates that where practicable, shift transfers and days off will be assigned with due regard to the needs of the agency, seniority, and employee preference. Article 9 also provides that a vacancy should be filled with the employee who has the most seniority in the class and who has a request for that vacancy on file. Other factors, such as work history, affirmative action goals, and employee preference can also be considered. While the agency has a great deal of discretion in assignments it must articulate a legitimate reason to fail to honor a request for transfer or to involuntarily reassign a person to another position. According to Dr. Randolph A. Malone, IV, a Board certified allergist and immunologist, cold air will flare, (trigger), asthma attacks but will not worsen the condition over a long period. In mild cases of asthma, the patient usually has a mild shortness of breath and a cough. The symptoms are self- limiting. Symptoms tend to be worse at night. As the condition gets more severe, the symptoms appear more frequently and the patient may get an upper respiratory infection. The patient then suffers symptoms on a daily basis to include inflammation and obstruction of the air passage. At this point, after a time, the patient feels terrible and experiences chest tightness, decreased energy and increased fatigue, and has more severe reactions to colds and other respiratory ailments. An asthmatic is hypersensitive to various irritants and should not be continually exposed to them. However, asthmatics are not respiratory cripples who need to be completely sheltered from exposure to such irritants as cigarette smoke; though they should not stay for prolonged periods with smokers in a room that did not have adequate ventilation. Asthma can also be triggered by emotions. Review of Petitioner's medical records generated by Dr. Wynne in Gainesville indicate to Dr. Malone that Petitioner has chronic, moderate asthma with a tendency to severe flares. In his opinion, the old recreation office, where Petitioner was working, with a chain smoker present, would not be an appropriate place for an asthmatic. The perimeter post, as described by counsel in his hypothetical, however, would be a reasonable work environment, if not optimal. The cold or dust encountered could flare Petitioner's asthma, and at those times he would have to take additional medication, but it would probably not make his condition chronically worse as cigarette smoke would. Cold dry air is the worst combination for an asthmatic. Normally, the higher the humidity is, the better it is for the asthmatic. Cigarette smoke is the worst trigger. The psychiatric social worker who saw Petitioner in conjunction with Dr. Chockhwala, Gerald Edwards, took over the therapy sessions after the initial visit with the doctor on January 22, 1991, and saw Petitioner four times thereafter. He determined that Petitioner suffered from dysthymia, a form of chronic depression, the onset of which extends over a period of several years. In his therapy with Petitioner, Mr. Edwards identified the problems in Petitioner's life and tried to set goals with him to allow Petitioner to get through this period. Petitioner's problems included family matters and job related stress and a lack of self esteem. Working together, they tried to get Petitioner into another line of work and back into school. After the fourth visit, Petitioner chose not to continue the therapy. However, Mr. Edwards saw Petitioner again in October, 1992 at which time he was completely different than he had been previously. Petitioner was energetic, animated, smiling, and free to express himself much better. He was enrolled in school, had another part time job, was planning to move from his prior home town, and had custody of one of his children. He felt good about life and could, in Mr. Edwards' opinion, successfully hold down a full time job. Mr. Edwards concluded that much of Petitioner's original work problem was that he could not get a job in a smoke free environment inside the compound where he preferred to be. Petitioner felt he had been denied promotion and discriminated against because of his race. The issue of racial discrimination in employment practices at Mayo subsequently was treated in a study conducted by Dr. Edgar A. Fresen, an economist with a concentration in labor economics. This study of CO employment terminations at Mayo from January, 1985 through September, 1992, was based on employment records submitted by the Respondent and was conducted on behalf of the Petitioner. Dr. Fresen concluded in his study that terminations during the referenced period were not neutral with respect to race. He asserts his tests indicated, beyond a 99 percent level of confidence, that terminations of minority employees far exceeded a racially unbiased incidence projection. In his study, Dr. Fresen examined the racial composition of Corrections Officers I and II utilizing both a 13 percent and 14 percent benchmark. The 14 percent benchmark resulted in a 99.79 percent level of confidence and the 13 percent benchmark increased the level of confidence to 99.87 percent. The analyzed data, he concluded, strongly supported the inference that race is a factor which influenced Respondent's decisions on discharges. Another study was conducted thereafter regarding the same subject matter, on behalf of the Department, by Dr. Michael J. Piette, also an economist and Senior Vice President/Economist with Economic Research Services, Inc. He specializes in labor, industrial organization and antitrust, and economics of the financial services industry. Dr. Piette found several problems with the methodology employed by Dr. Fresen in his study, objecting specifically to Fresen's combining COIs and COIIs in a binomial analysis on the basis that the two groups are different in responsibility and in terms of time in the system which affects the likelihood of their termination. He also objected to the method of selecting and using benchmarks, indicating the levels used by Fresen were artificially low, which increased the chance of finding a significant difference in terminations between white and "minority" employees. A third problem found by Dr. Piette relates to the data utilized by Dr. Fresen in his analysis. Piette claims this data did not include all involuntary resignations during the relevant period, while this type of resignation is often used in lieu of termination as the result of investigation into misconduct. Dr. Piette's analysis of the available material contends that once the process includes all involuntary resignations, examines COIs only, and uses an appropriate comprehensive benchmark, the same statistical test used by Dr. Fresen indicates there are no statistically significant differences in the termination rate at Mayo with regard to race. He found no evidence of racial patterns in Mayo's termination decisions and concluded race was not a factor. Dr. Fresen then submitted an affidavit in opposition to Dr. Piette's analysis, in which he cites numerous grounds for discrediting it. This dispute could be carried on indefinitely with neither expert conclusively proving his point. While neither analysis is considered to be determinative of the factual issue of whether Petitioner was improperly discharged on the basis of his race or handicap, Dr. Piette's analysis is found to be more probative of the issue treated. Subsequent to the hearing and the filing of the above materials, Petitioner filed a Motion in Limine to exclude the report of Dr. Piette on the basis that Piette relied in his analysis on basically unreliable and improperly obtained evidence. Petitioner is correct in his legal position that an expert may not rely on unreliable and improperly obtained evidence. However, the original opinion evidence and the supporting affidavits thereto and to the Motion and Response, clearly indicate that both experts used basically the same material obtained from basically the same source. Taken as a whole, little valid objection can be found to Dr. Piette's presentation and the Motion in Limine is denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of race and handicap, and retaliation by the Department of Corrections be denied. RECOMMENDED this 24th day of February, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2475 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. 23. - 33. Accepted and incorporated herein. 34. & 35. Accepted and incorporated herein. Accepted but modified by the additional recommendation that if this could not be done, Petitioner be given a 100 percent disability. Accepted and incorporated herein. -& 39. Accepted. 40. - 44. Accepted. 45. - 49. Accepted and incorporated herein. Accepted. - 56. Accepted and incorporated herein. 57. & 58. Accepted. 59. - 64. Accepted. 65. & 66. Accepted. 67. - 69. Accepted and incorporated herein. 70. - 72. Accepted. 73. - 76. Accepted. 77. Accepted and incorporated herein. 78. - 84. Accepted. 85. Accepted and incorporated herein. 86. & 87. Accepted and incorporated herein. 88. & 90. Accepted and incorporated herein. 91. & 92. Accepted. 93. - 98. Accepted. 99. - 103. Accepted and, in the main, incorporated herein. 104. - 111. Accepted and incorporated herein. 112. - 116. Accepted and, in the main, incorporated herein. 117. - 119. Accepted and incorporated herein. 120. & 121. Accepted. 122. Accepted. 123. - 126. Accepted. 127. - 133. Accepted and incorporated herein. 134. Accepted. 135. - 137. Accepted. 138. - 143. Accepted and incorporated herein except for the allegation in #142 that Petitioner failed to attend the conference because he had an asthma attack not proven. 144. - 148. Accepted. 149. - 152. Accepted except for the last sentence in #150. 153. - 156. Not a Finding of Fact but a characterization of the evidence. Accepted. - 189. Not Findings of Fact but comments on the testimony. 190. Not a proper Finding of Fact but a comment on the quality of the evidence. The ultimate conclusion regarding the establishment of discrimination is not supported by a preponderance of the evidence. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. 19. & 20. Accepted. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 27. Accepted. Accepted and incorporated herein. & 30. Accepted and incorporated herein. Accepted. - 38. Accepted and incorporated herein. Accepted and incorporated herein. & 41. Accepted. 42. - 48. Accepted and incorporated herein. 49. & 50. Accepted. COPIES FURNISHED: Mary C. O'Rourke, Esquire W. College Avenue Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32301 Dana Baird General Counsel John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Rules 33-3.0084(1)(i)1 and 33-3.005(4)(a) and (b), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck and Mike Ramadanovic, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules at issue in this proceeding. The rules at issue in this proceeding govern the treatment of inmates while in "disciplinary confinement." At the time of the formal hearing, neither of the Petitioners were in disciplinary confinement. Both Petitioners have, however, been in disciplinary confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, inmate conduct, inmate discipline and all other aspects of the operation of the prison system in Florida. C. Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1, Florida Administrative Code. The Petitioners have challenged Rules 33-3.005(4)(a) and (b), and 33- 3.0084(1)(i)1, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules"). Rule 33-3.005(4)(a) and (b), Florida Administrative Code, provides, in pertinent part: (4) . . . . Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions: When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time. When the inmate wishes to prepare legal material to file with a court for the purpose of testing the legality of his disciplinary confinement. The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The law implemented by Rule 33-3.005, Florida Administrative Code, is Sections 944.09 and 944.11, Florida Statutes. Rule 33-3.0084(1)(i)1, Florida Administrative Code, provides, in pertinent part: 1. Legal materials shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. The law implemented by, Rule 33-3.0084, Florida Administrative Code, is Sections 20.315 and 944.09, Florida Statutes. Chapter 33-22, Florida Administrative Code, titled "Inmate Discipline", specifies what constitutes prohibited conduct for inmates, the procedures for determining if an inmate has violated the rules establishing prohibited conduct and the maximum punishment which may be imposed if an inmate violates the rules establishing prohibited conduct. The "Rules of Prohibited Conduct" and the maximum punishment for an infraction of these rules are contained in Rule 33-22.012, Florida Administrative Code. Among other things, an inmate who violates the Rules of Prohibited Conduct, may be placed in "disciplinary confinement" for specified periods of time. The length of time an inmate may be placed in disciplinary confinement for is not to exceed 60 days for any one infraction. "Disciplinary confinement" is defined in Rule 33-22.002(3), Florida Administrative Code, as: (3) Disciplinary Confinement -- Confinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with. Although the maximum term of disciplinary confinement is 60 days, it is possible for an inmate to be placed in disciplinary confinement for longer periods of time: (1) an inmate may be convicted of more than one violation of the Rules of Prohibited Conduct and be sentenced to multiple 60-day (or less) sentences to be served consecutively; (2) an inmate may commit another infraction(s) (including a violation of the Challenged Rules) while in disciplinary confinement, resulting in additional disciplinary consecutive confinement sentences; and (3) an inmate may commit an infraction soon after release from disciplinary confinement and be returned to disciplinary confinement. It is also possible for an inmate to serve less than the full term of his sentence to disciplinary confinement. Being placed in disciplinary confinement is a direct result of the actions of an inmate in failing to follow the established rules of conduct of the Respondent. At least one inmate has been in disciplinary confinement for periods of up to two and one-half years. An inmate would have to commit a minimum of fifteen infractions to be sentenced to disciplinary confinement for two and one- half years. The evidence failed to prove that the one inmate that has been in disciplinary confinement for two and one-half years was in disciplinary confinement continuously without any break. The inmate could not recall. The number of inmates in disciplinary confinement for more than one year was not proven. At best, it was proved by the Petitioners that one inmate (Charles William Bowe, Jr.) has served more than one year in disciplinary confinement. Even the evidence concerning Mr. Bowe, however, did not prove that his time in disciplinary confinement was continuous and without any break. Based upon an estimate of the Respondent, it is likely that no more than 1% of the inmate population (less than 460) is in disciplinary confinement for more than one year. Although the evidence did not prove that any inmate has actually been in disciplinary confinement for more than two and one-half years, it is not impossible that an inmate could be in disciplinary confinement for an unlimited period of time, as long as the inmate continues to commit violations of the Respondent's Rules of Prohibited Conduct. Although it may be unlikely, it is not impossible for an inmate to be in disciplinary confinement for the entire term of his sentence. The purpose for placing an inmate in disciplinary confinement and the purpose of the Challenged Rules is to attempt to correct an inmate's demonstrated negative behavior; to eliminate "privileges" inmates normally are given. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is prohibited from instituting any new litigation (other than a challenge to the decision to place the inmate in disciplinary confinement or litigation which must be instituted within a specified time period) while the inmate is in disciplinary confinement. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is generally prohibited from preparing legal documents and legal mail unless the inmate is required to meet a time limitation in an existing legal matter or the inmate intends to test the legality of his disciplinary confinement. When an inmate is placed in disciplinary confinement, all of the inmate's legal materials are confiscated and impounded. Access to an inmate's legal materials may be obtained while in disciplinary confinement pursuant to the exceptions of the Challenged Rules. At Florida State Prison, access is allowed to an inmate' legal materials if the inmate can show the necessity for those materials through: (1) a court order that requires the inmate to take some action in a pending matter; (2) any other source, i.e., a rule of the court, indicating that the inmate must meet some procedural or other requirement of the court; or (3) if the inmate indicates a desire to prepare a challenge to the legality of his disciplinary confinement. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to the inmate's legal materials is as follows: The inmate makes a request to an institutional counselor assigned responsibility for the inmate; The inmate must indicate to the institutional counselor why one of the exceptions provided in the Challenged Rules allowing access to his legal materials applies; If the institutional counselor is convinced that one of the exceptions applies, access to the inmate's legal materials is allowed. If not, no access is allowed; The procedure followed at Florida State Prison if an inmate convinces an institutional counselor that access to his legal materials should be allowed is as follows: The institutional counselor retrieves the inmate's legal materials and brings them to the inmate's cell; In some instances the institutional counselor may give the legal materials to the inmate or require the inmate to describe to the counselor, and convince the counselor of, what materials he actually needs to meet the deadline or to challenge his disciplinary confinement; and The institutional counselor, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he then must convince the counselor of what additional materials are needed. If an inmate is denied access to his legal materials or is not provided with the materials he needs, the inmate may challenge the decision of the institutional counselor by filing a grievance. Based upon the experiences of the inmates who testified in this proceeding, requests for access to an inmate's legal materials may be granted or denied, and when granted, an inmate may be given the whole file, he may be denied materials, he may be asked "is this it" and he may get only the materials he actually needs. Institutional counselors may even make more than one attempt to find the requested materials. Pursuant to Rule 33-3.0084(1)(i)1, Florida Administrative Code, an inmate may not have access to any legal materials except to the extent necessary for the inmate to meet a time limitation in an existing legal matter or if the inmate intends to test the legality of his disciplinary confinement. Access to legal materials in the library may generally be obtained by inmates. Such access is not, however, without limitation. There are limitations on the procedure which must be followed to obtain access to the library and the amount of materials which may be obtained at any one time. An inmate in disciplinary confinement is further limited as to when and how he may access library resources pursuant to the Challenged Rules. At Florida State Prison, access is allowed to library legal materials only if an inmate can show the necessity for those materials in the same manner an inmate may obtain access to his own legal materials as explained in finding of fact 26. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to library legal materials is as follows: The inmate must make a request in writing to the librarian; The inmate must indicate to the librarian why one of the exceptions to the lack of access to library legal materials applies; If the librarian is convinced that one of the exceptions applies, access to the library's legal materials is allowed. If not, no access is allowed; The librarian, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he may make additional requests. If an inmate is denied access to library legal materials or is not provided with the materials he needs, the inmate may challenge the decision by filing a grievance. Institutional counselors and librarians are not required to have legal education or training. The evidence failed to prove that any inmate has been totally denied access to the courts by the proper application of the Challenged Rules. The evidence proved that the Challenged Rules are inconvenient and aggravating to some inmates who have experienced the procedures which must be followed in order to obtain access to the inmate's legal materials or library legal materials. The procedures can be a hinderance to an inmate's pursuit of litigation to the extent that the procedures are one more step an inmate must follow that the inmate would not otherwise have to follow if he were not in disciplinary confinement. The evidence proved that, although inconvenient, some of the inmates who testified were able to pursue litigation even though they have been in disciplinary confinement at times. There was some aggravation and frustration caused those inmates who testified because of the Challenged Rules, but the evidence failed to prove that any of the inmates who testified or any other inmates were actually prevented from pursing litigation: Inmate Bowe, who has served two and one-half years of disciplinary confinement (although it was not proved whether the time was without interruption because of Inmate Bowe's memory lapse), had several court proceedings (Florida and federal) pending at the time of the formal hearing and did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the Challenged Rules; Leonard Bean, another inmate who testified, has served 140 to 150 days in disciplinary confinement for multiple infractions. Although Inmate Bean testified that his co-defendant's conviction had been reversed (in February, 1991), the evidence failed to prove that Inmate Bean's conviction would have also been reversed but for his disciplinary confinement or, more importantly, would have also been reversed but for the Challenged Rules. Although Inmate Bean was released from disciplinary confinement in May, 1991, he still had not filed for habeas corpus as of the date of the formal hearing; Jimmy Stephens, another inmate who testified, has served 240 days of disciplinary confinement for four infractions during the past two years. Although inconvenienced by the limitation on library legal material use, Inmate Stephens did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Carl Watts, another inmate who testified, served 180 days in disciplinary confinement prior to being transferred to Florida State Prison and another 60 days after arriving at Florida State Prison. Inmate Watts' testimony concerning a possible habeas corpus action failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Ramadanovic has served up to 100 days in disciplinary confinement. Although he filed two grievances dated August 22, 1990, concerning his efforts to file a brief in an appellate court proceeding, his disciplinary confinement ended August 23, 1990, and therefore, he failed to prove that he was prevented from filing a brief or any other pleading in any case pending while he was in disciplinary confinement. The evidence also failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Van Poyck failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue. As long as an inmate is in disciplinary confinement, that inmate may not file an action for federal habeas corpus. An inmate in disciplinary confinement may also not file an action for habeas corpus in the State courts until some, unspecified date, which the Respondent determines is close enough to necessitate preparation of the pleadings in order to meet the time limitations on habeas corpus in Florida.
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
