The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the request for formal hearing filed by petitioner, Ronald McGahee. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of October 1989. COPIES FURNISHED: Jayne C. Weintraub, Esquire 330 Biscayne Boulevard Penthouse Miami, Florida 33132 Donald Papy, Esquire 19 West Flagler Street Suite 802 Miami, Florida 33130 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcment Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 WILLIAM J. KENDRICK 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 16th day of October, 1989.
The Issue The issues for determination are: (1) Whether Petitioner, Deputy Michael Hughes, violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; and (2) Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, General Order 3-1.1.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: At all times pertinent to this case, Deputy Hughes was employed by the Sheriff's Office as a deputy sheriff. At the time of hearing, Deputy Hughes had over eighteen years' experience with the Sheriff's Office. On January 12, 2002, Deputy Hughes was working as a deputy sheriff and as a Field Training Officer in the Field Training Section of the Pinellas County Sheriff’s Office. He was accompanied throughout his shift by a trainee, Deputy Mark Shorter. At approximately 2:55 a.m. on January 12, 2002, Deputies Hughes and Shorter responded to 5125 Betty Street in St. Petersburg to assist Deputies Michael Pulham and Vance Nussbaum, who were already on the scene of a traffic stop where the driver was suspected of having active warrants for his arrest. Deputies Hughes and Shorter had already responded to two calls at 5125 Betty Street, both involving complaints by neighbors that persons in the house were causing a public disturbance. After the traffic stop, the deputies noticed yet another disturbance occurring in the residence at 5125 Betty Street. The four deputies entered the residence. As the deputies walked in, one of the occupants, later identified as Donald Hillebrand, punched Deputy Hughes in the mouth with his closed fist. The deputies attempted to place Mr. Hillebrand under arrest for battery upon a law enforcement officer. A melee ensued between the four deputies and several occupants of the residence. Donald Hillebrand was subdued, handcuffed, and arrested. Two women who participated in the fight were also arrested. Mr. Hillebrand was then escorted to Deputy Hughes’ cruiser and placed in the rear seat, without the use of a seat belt. Two other arrestees, Lisa Ruthven and Barbara Metzler, were placed in the rear of the Pulham/Nussbaum cruiser for transport. Because several other people were coming out of the residence and the situation remained volatile, the deputies decided they would regroup at a more secure location a short distance from the Betty Street residence to complete their paperwork on the arrests. From the time he was placed in the back of the cruiser, Mr. Hillebrand spewed a stream of racial invective at Deputies Hughes and Shorter in the front. Mr. Hillebrand is white. Deputies Hughes and Shorter are black. Lt. John Bocchichio, the shift commander, met the four deputies at the secure location. He noted that Mr. Hillebrand was screaming "nigger this and nigger that" from the rear of Deputy Hughes' cruiser. While Deputies Hughes and Shorter completed their paperwork at the rear of their cruiser, Lt. Bocchichio opened the door of the cruiser, leaned into the car, and attempted to speak to Mr. Hillebrand in an effort to calm him. Mr. Hillebrand continued yelling and screaming, and eventually spit at Lt. Bocchichio, who gave up and closed the door of the cruiser. Lt. Bocchichio did not tell Deputy Hughes that Mr. Hillebrand spit at him, but he thought Deputy Hughes might have seen the spitting through the rear window of the cruiser. Alex Metzler, another participant in the brawl at the Betty Street residence, rode up to the secure location on a bicycle. He claimed he was merely riding to a store, but the deputies believed he was there to interfere with them. The deputies arrested him, handcuffed him, and placed him in the rear of Deputy Hughes' cruiser along with Mr. Hillebrand. Mr. Metzler was seated on the passenger's side, and Mr. Hillebrand was seated on the driver's side of the back seat. Both men were handcuffed with their hands behind their backs. The cruiser had a plexiglass shield behind the driver's side of the front seat, and a steel cage behind the passenger's side of the front seat. Deputies Hughes and Shorter, with Shorter driving the cruiser, commenced their travel to the Pinellas County Jail facility, located at 144th Avenue and 49th Street in Clearwater. Mr. Hillebrand continued his tirade at both Deputy Hughes and Shorter, calling them "niggers," inviting them to "suck his dick," and offering to perform various sex acts on their mothers. While the cruiser was traveling on 49th Street approaching 144th Avenue, Mr. Hillebrand leaned over to Mr. Metzler’s side of the police cruiser and spit through the steel cage into the face of Deputy Hughes. Deputy Hughes instructed Deputy Shorter to stop the vehicle. Deputy Shorter stopped the cruiser in the left-hand turn lane at the intersection of 49th Street and 144th Avenue, within sight of the jail. After the cruiser was stopped, Deputy Hughes exited the vehicle, walked around the rear of the vehicle and opened the rear driver’s side door. Mr. Hillebrand was lying on the back seat across Mr. Metzler. Deputy Hughes admitted that he was angry at being spat upon, but maintained that his purpose in stopping and exiting the vehicle was to prevent Mr. Hillebrand from spitting on him a second time by securing his seatbelt. Deputy Hughes reached into the back seat of the vehicle in an attempt to make Mr. Hillebrand sit up on his side of the seat. Mr. Hillebrand resisted. Deputy Hughes noted that Mr. Hillebrand was on top of the seat belt buckle and decided that he needed to remove Mr. Hillebrand from the vehicle. Mr. Hillebrand continued to resist, lying back on the seat and using his legs and feet to prevent his removal from the vehicle. Deputy Hughes leaned into the vehicle in order to grasp Mr. Hillebrand's shoulders to gain hold of him. At this point, Mr. Hillebrand agreed to cooperate. He sat up, turned to sit sideways in the vehicle and placed his feet on the ground outside of the vehicle. Mr. Hillebrand then stood up outside the cruiser. Deputy Hughes testified that he thought Mr. Hillebrand was attempting to head-butt him, though he admitted that Mr. Hillebrand's actions were also consistent with the moves that a handcuffed person would have to employ to exit a vehicle. In response to the perceived head-butt, Deputy Hughes struck Mr. Hillebrand in the chest with a forearm strike and followed with a knee strike to the abdomen. Deputy Hughes briefly pinned Mr. Hillebrand against the rear quarter panel of the cruiser, then returned him to the back seat and attempted to fasten Mr. Hillebrand with the seat belt. Deputy Hughes was unable to fasten the seat belt because the buckle had worked its way under the back seat. Deputy Hughes looped the shoulder harness portion of the seat belt over Mr. Hillebrand’s chest and tucked the end of it underneath the seat to give Mr. Hillebrand the impression that the seat belt was properly fastened. Deputy Hughes closed the rear door of the vehicle and returned to his own seat in the cruiser. Deputy Shorter resumed the drive to the Pinellas County Jail, which took no more than two minutes. Mr. Hillebrand was turned over to corrections officers without further incident and charged with two counts of battery on a law enforcement officer (one for punching Deputy Hughes and one for spitting on Deputy Hughes) and one count of resisting an officer with violence. Deputy Hughes admitted that he did not prepare a use of force report as to this incident. His arrest report detailed the brawl at the Betty Street residence, but made no mention of the subsequent stop after Mr. Hillebrand spit on him. After the incident, Mr. Hillebrand's mother filed a complaint alleging the physical abuse of Donald Hillebrand during the course of the arrest. The complaint triggered an investigation by the Inspections Bureau of the Sheriff's Office regarding the incidents leading to the arrest of Mr. Hillebrand and the use of force by Deputy Hughes and the other deputies involved. At the conclusion of the investigation, an Administrative Review Board reviewed the allegations and evidence compiled by the Inspections Bureau and determined that Deputy Hughes had violated the Pinellas County Civil Service Act and the rules, regulations and operating procedures of the Shriff's Office. The Administrative Review Board's memorandum, dated August 3, 2002, set forth the following specific violations: Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five Violation), 5.15 relating to the Custody of Arrestees/Prisoners, to-wit: Arrestees/Prisoners shall be kept secured and treated humanely and shall not be subjected to physical abuse. The use of physical force shall be restricted to circumstances specified by law when necessary to accomplish a police task. Synopsis: On January 12, 2002, you removed a secured prisoner from the rear of your cruiser while enroute [sic] to the jail and subjected him to physical force, which was not specified by law or necessary to accomplish a police task. Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three Violation), 3.20, relating to the Use of Force Reporting, to wit: Whenever a member either on or off duty, is required to use physical force against another person, the member shall immediately notify a supervisor of the action taken and complete the necessary documentation for review. Synopsis: On January 12, 2002, you used physical force against another person, but failed to complete the necessary Use of Force Report for review. The Administrative Review Board did not conclude that Deputy Hughes pulled Mr. Hillebrand out of the cruiser for the purpose of abusing him, or that Deputy Hughes used such force as would constitute a violation of state law or the United States Constitution. The Board unanimously concluded that the force utilized with regard to Mr. Hillebrand was unnecessary and served no legitimate law enforcement purpose, thereby violating General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. The Board found that Deputy Hughes' actions toward Mr. Hillebrand were inappropriate, given that his reason for stopping the car and commencing the chain of events that led to his use of force was to prevent Mr. Hillebrand from spitting on him again. The Board found that Deputy Hughes could have avoided being spit on without pulling Mr. Hillebrand out of the vehicle, and thus that there was no legitimate law enforcement purpose served by his use of force. The Board noted several factors to support its finding. Deputy Hughes stopped the cruiser less than two minutes from the jail, where corrections officers could have taken Mr. Hillebrand out of the cruiser without the use of force. Deputy Hughes could have found something in the cruiser, such as a rain slicker, to place over the cage behind him and block any further spit from the rear of the vehicle. Once the prisoner was secure and in custody, Deputy Hughes' primary duty was to transport him safely to jail without exposing the prisoner, the law enforcement officers, or the public to the risk of further injury. By stopping the vehicle and opening the rear of the caged and locked police cruiser, Deputy Hughes exposed himself, his partner, both prisoners, and possibly the general public to an unnecessary risk of injury. Deputy Hughes' actions created the situation that resulted in the need to use force on Mr. Hillebrand, and those actions were not necessary to accomplish the primary police task of transporting Mr. Hillebrand safely to the jail without further incident or injury. In short, the Board found that Deputy Hughes used appropriate force for the situation, but found that he violated regulations by allowing the situation to develop in the first place. Sheriff's Office General Order 10-2 provides guidelines for imposition of discipline by an Administrative Review Board, including a point system based on the number and severity of violations. The violations found against Deputy Hughes resulted in a cumulative point total of 65 points: 50 points for the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners and 15 points for the violation of General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Sheriff's Office General Order 10-2 provides that the point total accumulated by Deputy Hughes allows for discipline ranging from a seven-day suspension to termination of employment. Deputy Hughes received the minimum seven-day suspension. Deputy Hughes appealed only the finding with regard to the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. Deputy Hughes did not contest the finding that he violated General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Deputy Hughes contended that he acted in self-defense to prevent Mr. Hillebrand from continuing to spit on him. This contention was illogical. By opening the rear of the vehicle and manhandling his prisoner, Deputy Hughes made it easier for Mr. Hillebrand to spit on him again. Further, the self-defense contention was beside the point, as the Sheriff's Office did not allege that Deputy Hughes had no right to protect himself. Rather, the Administrative Review Board found that Deputy Hughes chose the worst of several possible methods to prevent Mr. Hillebrand from spitting on him. The essential finding was that Deputy Hughes used poor judgment, not that he used excessive force. Deputy Hughes also contended that the Sheriff's Office was at fault for not equipping his cruiser with restraints designed to prevent prisoners from spitting. Whatever the value of such restraints, their absence did not prevent Deputy Hughes from improvising a protective device from the materials available in his cruiser. Finally, Deputy Hughes pointed to the fact that the Sheriff's office has no rule or regulation prohibiting a deputy from attempting to seat belt a prisoner in the rear of the vehicle to prevent him from spitting through the open portion of the cage. It defies reason to contend that the Sheriff's Office must develop a rule or regulation for every possible condition that may occur in the field, or that an experienced deputy may abandon common sense in the absence of a rule or regulation covering a situation in which he finds himself. The evidence presented at the hearing fully supported the findings of the Administrative Review Board and the penalty imposed upon Deputy Hughes for the violation of General Order 3- 1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Michael E. Hughes guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in the August 3, 2002, inter-office memorandum and upholding the suspension of Michael E. Hughes from his employment as a deputy sheriff with the Pinellas County Sheriff's Office for a period of seven days. DONE AND ENTERED this 28th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 1 Avenue North St. Petersburg, Florida 33701 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
