The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in the case are whether the Respondent violated Florida Administrative Code Rule 11B-27.005(3)(b), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Correctional Certificate number 44905. On June 29, 2005, the Respondent signed a Stipulation and Settlement Agreement (Agreement) related to an Administrative Complaint filed by the Petitioner in a previous disciplinary proceeding against the Respondent (Criminal Justice Standards and Training Commission Case Nos. 20073 and 20242). The Respondent was represented by legal counsel during the 2005 proceeding. The Agreement imposed a one-year probationary period commencing 15 days from the entry of a final order. The Agreement was approved and adopted by the Petitioner as stated in a Final Order dated November 21, 2005.1 The Respondent's probationary period commenced on December 6, 2005, and ended one year later. Among the conditions set forth in the Agreement was the following requirement set forth at paragraph 4: As a condition of probation, the Respondent shall provide staff with proof of successful completion of a Commission-approved ethics training course. The Respondent failed to submit any proof that she had successfully completed a Commission-approved ethics training course by the expiration of the probationary period. On December 6, 2006, a staff specialist assigned to monitor the Respondent's compliance with the requirements of probation sent a letter by regular U.S. Mail to the Respondent's last known address (Jonquil Court in Naples, Florida), reiterating the requirement to submit the information related to completion of the approved ethics training course. The staff specialist received no response to the letter. The staff specialist then accessed state driver license records to ascertain whether the Respondent's address had changed and observed that the Respondent had a new address. The staff specialist sent a second letter to the Respondent about a month after the first, this time by certified mail to the address on the driver license records (12th Street Northeast, in Naples, Florida). The certified letter was returned on February 23, 2007, as unclaimed. Postal service documentation indicated that three unsuccessful attempts were made to deliver the letter. Based on the apparent failure to comply with the ethics training course requirement, the Petitioner instituted a disciplinary proceeding against the Respondent. A notice of the probable case hearing scheduled for June 12, 2006, was sent by regular mail to the Respondent at the same address to which the certified letter had been sent. The Respondent received the correspondence related to the probable cause hearing and contacted the Petitioner. The Respondent failed to supply proof of successful completion of a Commission-approved ethics training course prior to the June 12, 2007, probable case hearing, and the Administrative Complaint at issue to this proceeding was entered. In response to the Administrative Complaint, the Respondent submitted a letter dated August 30, 2007, which stated as follows: To Whom it [sic] May Concern: Diana Hall completed PHI-3301 Philosophy at Hodges University as part of her associate degree. The associate degree she completed gave her the choice between Ethics and Philosophy. Philosophy and Ethics are both humanities classes. Please allow the substitution of Philosophy for the required Ethics class based on the category of both classes being a humanity requirement. Thank you. Sincerely, [Signature] Kimberly Morehouse Registrar Hodges University The letter does not identify when the Philosophy course was taken. At the hearing, the Respondent testified that she took the course during the winter of 2006. A grade report indicated that the course was taken in the fall of 2005, and the Respondent also acknowledged that the course could have been taken in 2005. The Respondent graduated from Hodges University with an associate degree in Nursing/Medical Assistant on June 10, 2007. She completed the requirements for the degree in December 2006. The grade report indicates that in addition to the Philosophy course, the Respondent took a course in Medical Terminology and a course in Medical Office Procedures during the same term. The evidence establishes that the Respondent has failed to comply with the probationary condition requiring submission of proof that she completed an ethics training course approved by the Petitioner. There was no credible evidence that the Respondent made any attempt to verify whether the Philosophy course would comply with the probationary requirement that an ethics training course be successfully completed prior to taking the course. The Respondent testified that she provided the information related to the Philosophy course to her legal counsel, but there was no evidence that the Respondent made any attempt to ascertain whether the course had been accepted by the Petitioner as meeting the probationary condition. There was no credible evidence that the Philosophy course completed by the Respondent specifically addressed any ethical issues specifically related to law enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the Respondent's correctional certificate. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 15th day of November, 2007.
Findings Of Fact Respondent, Randall J. Cason, is a certified law enforcement officer having been issued certification number 0228323 on December 8, 1980 by petitioner, Criminal Justice Standards and Training Commission. Until sometime in 1986, he was employed as a police office by the City of Miami. On or about March 4, 1986 Cason was convicted of conspiracy to commit bribery by a public servant (a first degree misdemeanor) and bribery by a public servant (a third degree felony). On April 21, 1986 he was sentenced to serve five years in prison for the felony conviction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's law enforcement certification number 0228323 be REVOKED. DONE AND ORDERED this 13th day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 13th day of August, 1987. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Mr. Randall J. Cason 2521 Ludlum Road Miami Springs, Florida 33166 Mr. Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Mr. Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105. On March 20, 1991, Ella Verdell Green, Earl H. Hamilton, Sr., Paul Hudson Morris, and Joe Garcia, Jr. took a course from respondent's William Dysvik, a licenced instructor (T.55), and received certificates of completion "as part of the requirements for a Class 'D' license." Petitioner's Exhibit No. The course lasted eight hours, (T.17, 19, 41) 50 minutes of each hour being devoted to instruction. T.56. It began with Mr. Dysvik's talking to the class about security, (T.22), after which he passed out pamphlets which he and the class "went through." Id. After about 30 minutes, he told the students to study the pamphlets and invited questions. Ms. Green and others asked him several. T.32. That afternoon, a test was administered and discussed. The instructor "seemed just like a school teacher." T.35. He took his responsibilities seriously, and taught the approved curriculum in its entirety. T.42. Every 15 or 30 minutes, he left the classroom for five minutes. T.47. Part of the time he was out of the classroom he was preparing handouts. T.45, 47. As the day progressed, he and the class discussed each chapter of the materials. T.46.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint it filed against respondent in this matter. DONE and ENTERED this 26th day of June, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1992. COPIES FURNISHED: Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250 Charles S. Isler, III, Esquire Isler & Banks, P.A. P.O. Drawer 430 Panama City, FL 32402 Honorable Jim Smith, Secretary Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-2 Tallahassee, FL 32399-0250
The Issue Should Respondent Division of Retirement grant Petitioner's request to be included for retirement purposes in the Special Risk Class (SRC) from July 1, 1981 through October 24, 1985? Should Respondent Division of Retirement grant Petitioner's request to be included in the Special Risk Administrative Support Class (SRASC) for the period October 25, 1985 until January 1, 1998?
Findings Of Fact At all times material, Alachua County employed a jail facility Director who had overall supervision of correctional officers and special risk employees and who was ultimately responsible for restraint of inmates. Petitioner was continuously employed by the Alachua County Department of Corrections at the Alachua County Jail from the date of his initial employment as a Correctional Officer I on April 22, 1974, to his lay-off as Assistant Director of the Alachua County Jail on January 1, 1998. Political opponents of Petitioner raised the issues of his eligibility for SRC and SRASC classification and the validity of his correctional officer certification beginning approximately in 1996. Petitioner began work April 22, 1974, as a Correctional Officer I (uniformed line officer) and was recommended by his employer Alachua County and approved by Respondent for SRC membership, effective April 22, 1974. Respondent reviews applications for SRC and SRASC for completeness with no audit beyond the certification by the member and the employer. Respondent may approve, retroactive to the date specified in the application. If at any time it is determined that a member is not eligible for inclusion in a particular retirement category, the member is removed, retroactive to the date of ineligibility. Petitioner was certified as a correctional officer by the Council of Correctional Standards on July 1, 1974. Petitioner was promoted to an Administrative Assistant I position, effective May 18, 1981. The Administrative Assistant I position did not require certification as a correctional officer. On May 18, 1981, Petitioner was a certified correctional officer in a position that did not require certification. Effective July 1, 1981, the Florida Legislature merged the Council of Correctional Standards, which had certified Petitioner on July 1, 1974, with the Law Enforcement Standards Council, to form the Criminal Justice Standards and Training Commission (CJSTC), an arm of the Florida Department of Law Enforcement (FDLE). In so doing, the Legislature provided Section 943.19(3), Florida Statutes, to "grandfather-in" certain correctional officers' certifications. On July 1, 1981, Petitioner was a certified correctional officer in a position that did not require certification. Sometime later in 1981, the newly-formed CJSTC requested that Alachua County send the CJSTC a list of all certified correctional officers in its employ. Such a list was prepared by Alachua County personnel and forwarded to the CJSTC. The list prepared by the County did not include Petitioner's name, presumably because at that time, as an Administrative Assistant I, he was not serving in a position requiring certification as a correctional officer. Petitioner was promoted to the position of Administrative Operations Supervisor, effective March 22, 1982. This position also did not require correctional officer certification. Although Petitioner was employed as an Administrative Assistant I beginning May 18, 1981, and as an Administrative Operations Supervisor beginning March 22, 1982, he did not make application for inclusion in SRASC until March 17, 1986. On April 23, 1986, Alachua County recommended Petitioner's SRASC classification. Kim Baldry, Director of Personnel for Alachua County since 1983, signed off on a form stating that Petitioner: Was employed for training and/or career development . . . and is subject to reassignment at any time to a position qualifying for special risk membership. Respondent approved Petitioner's SRASC membership retroactive to October 25, 1985. Petitioner's November 13, 1987, application for inclusion in SRC as "Assistant Director/Administrative Support," was neither recommended by Alachua County, nor approved by Respondent. In July 1994, the Administrative Operations Supervisor position was reclassified, without any change in job description or duties, as Assistant Director/Administrative Support, and Petitioner served in that capacity until his lay-off in 1998. The position never required a correctional officer certification. Petitioner was not employed as a uniformed correctional officer from May 18, 1981, to his lay-off in 1998. Petitioner did not hold a position for which the minimum requirements included certification as a correctional officer from May 18, 1981, until his lay-off in 1998. Kim Baldry testified that although Petitioner had many job titles during his 1981 to 1998 employment, his actual duties from 1981 to 1998 were consistently over personnel, budget, and fiscal matters; that he primarily supervised fiscal assistants and accounting clerks; and that he was never a jail "supervisor" as such. She did, however, concede that she had dealt with him over correctional officer discipline from 1983 to 1998. Petitioner and Ms. Baldry concurred that from 1981 to 1998, his duties remained basically the same, and that at various times, he was known as "Acting Assistant Director" and "Assistant Director" and when the Director was out of town, Petitioner served as "Acting Director." Petitioner testified without refutation that from 1981 to 1998, his duties always included personnel oversight of line correctional officers; overseeing payroll leave and timecards for such officers; and screening, interviewing, and processing applications for new correctional officers. One of his job descriptions confirms this. Petitioner also testified that he had daily contact with inmates of the Alachua County Jail in the commissary, medical services area, and food preparation area, and with trustees in support services, and that he regularly appeared before the County Commission concerning budget, jail crowding, and the need for more correctional officers. Petitioner's daily primary duties and responsibilities after May 18, 1981, were neither the direct custody, nor the physical restraint, of prisoners or inmates at Alachua County Jail. His daily primary duties were fiscal, budgeting, accounting, and personnel administration in nature. He was not a line officer on the floor with special risk officers and inmates on a daily basis, although he did consult with some line and special risk correctional officers on personnel matters, including disciplinary matters. Actual discipline went through correctional officer captains and lieutenants. Petitioner stated that when he was an Administrative Assistant I, he was subject to reassignment as a line correctional officer at any time and that when he was Administrative Operations Supervisor, there were two other supervisors who oversaw work release and jail supervision, respectively, on a day-to-day basis. At some point, one position was eliminated and one was assigned to the court system. From 1994 to 1995, when Petitioner was Assistant Director, there was one other Assistant Director. Both Assistant Directors reported directly to the Director of Alachua County Jail, who had total oversight of the jail operation. However, when both the Director and the other Assistant Director were out of town, or later, when Petitioner was the sole Assistant Director, the Director delegated his duties to Petitioner for the interim, and Petitioner was left directly in charge of all functions, including security, supervision of correctional officers, and supervision of inmates. When questions concerning his certification and retirement status arose in 1996, Respondent requested that Alachua County personnel look into the matter because he considered it to be his employer's problem and not his own. Alachua County formally requested review by the Respondent of Petitioner's retirement designation, indicating that it did not believe that Petitioner should continue in SRC or SRASC, because he was serving the employer in an administrative capacity. After considerable correspondence back and forth, FDLE, the agency that houses the CJSTC which has the responsibility and authority to certify correctional officers, advised Alachua County by a May 24, 1996, letter that: . . . A review of the files in the Division of Criminal Justice Standards and Training indicates that Mr. Krank was a certified correctional officer with the Corrections Council. That council was merged with the Law Enforcement Standards Council to form the Criminal Justice and Training Commission (CJSTC) in 1981. Officers employed in correctional officer positions were "grandfathered" into the CJSTC at that time. Mr. Krank was not employed as a correctional officer at the time of the merger, and, therefore, was not grandfathered into the CJSTC. It is suggested that if Mr. Krank requests more specific information concerning the grandfather clause in the statute, that he contact the State Department of Corrections. I have enclosed a copy of the 1983 Florida Statutes reference [sic] the "Saving Clause." However, it does not go into any detail as to what the process was at that time. (Joint Composite Exhibit 5) (Emphasis supplied.) Respondent received a May 21, 1998, letter from FDLE, stating: After a thorough search of the Automated Training and Management System (ATMS2), historical databases, and records stored on microfiche, there is no record of Mr. Krank working as an officer in Florida. Citing Rule 11B-27.0026, Florida Administrative Code, first enacted in 1994, FDLE went on to say that it considered Petitioner to be a certified correctional officer separated from employment and not re-employed within four years after the last date of separation, who therefore needed to reactivate his certification. (Joint Exhibit 10). The undersigned's research shows that Rule 11B-27.0023, Florida Administrative Code, new in 1982, provided that a certified correctional officer separated from employment and not re-employed within four years must reactivate his or her certification and that Rule 11B-27.0026, Florida Administrative Code, cited in FDLE's letter, actually explains how to reactivate certification. In reliance on FDLE correspondence, Respondent removed Petitioner from the SRC and SRASC classifications. Subsequent to being laid-off by Alachua County in 1998, Petitioner accepted a job as a correctional officer trainee with the Florida State Prison on February 2, 1999. Petitioner was hired as a correctional officer trainee at Florida State Prison, pending resolution of the instant case. Petitioner's arrangement with Florida State Prison personnel was that he would attend training from February 22, 1999, through May 25, 1999, after which he would have to pass a test administered by FDLE on June 29, 1999, in order to become a certified correctional officer and continue in the correctional officer position for which he had been hired.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order removing Petitioner from SRC and SRASC classification from July 1, 1981 to October 24, 1985, and from October 25, 1985 to January 1, 1998, respectively. DONE AND ENTERED this 19th day of August, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 19th day of August, 1999.
Findings Of Fact Respondent, Otis Brown, is the holder of a Class "K" Firearms Instructor License, a Class "DI" Security Officer Instructor License, a Class "D" Security Officer License, and a Class "G" Statewide Firearm License. On September 19, 1989, the Department of State (Department) temporarily approved respondent's application for a Class "DS" Security Officer School/Training Facility to be located at 15966 Northwest 27th Avenue, Miami, Florida. In June 1991 respondent relocated his school to 7900 Northwest 27th Avenue, Miami, Florida; however, it was not until September 30, 1991, that he applied for a license at such location and not until February 18, 1992, that the Department issued its temporary approval of such application. Each of the schools operated by respondent and approved by the Department were designated, by respondent, as "in-house," or non-fee charging. During the period extending from April 1991 through January 1992 respondent provided training for a Class "D" Unarmed Security Guard License in Monroe County, Florida, without benefit of a Class "DS" Security Guard School License for that location, which failed to conform with the State's minimum requirements. Specifically, in April 1991, respondent offered a course for unarmed security guards at his hotel room in the Econo Lodge, Key West, Florida. Such class included, among others, Brian Whitten and Ronald Shipman, who each paid approximately $100 for the course. The course lasted one day, starting at approximately 9:00 a.m. and concluding around 4:00 p.m. following the administration of the examination, with one hour off for lunch and several short breaks. In all, not more that 6 hours of instruction were given. Both Whitten and Shipman received a certificate of successful completion of unarmed security guard training from respondent. Again, in January 1992, respondent offered a course for unarmed security guards at his hotel room in Key West, Florida. Such class included, among 8 or 9 others, Bruce Clothier, who paid $75 for the course. The course lasted from 8:00 a.m. until noon the first day, and from 8:00 a.m. until approximately 11:30 a.m. the second day. The second day of instruction lasted approximately three hours, most of which was a review of the previous day's material, and then the students were accorded about one-half hour to take an examination. Every student received a certificate of successful completion of the unarmed security guard training from respondent. As with the unarmed security guard training, the firearms trained offered by respondent often failed to conform with the State's minimum requirements. In January 1991, in Miami, Florida, Brian Whitten received training from the respondent for a Class "G" Statewide Firearms License. His classroom and range training totaled approximately ten hours. Between April and October 1991, Charles Ramsey was employed by respondent at his Miami school, and assisted respondent in conducting training courses for Class "D" and Class "G" licensure. At the time, respondent was disabled, and Ramsey assisted him with various physical activities, as well as teaching first aid instruction to the students. While Ramsey taught the first aid course, respondent was always present. Ramsey did not, however, hold a Class "DI" license. Regarding the firearms training course for Class "K" licensure offered during this period, the proof demonstrates that little formal instruction was given. Rather, the students were given a booklet to take home with them to study for two days and on the third day received a block of instruction on the statutes of the State of Florida and firearm safety and an examination before lunch. Following lunch, the students received their range training. In December 1991, in Miami, Florida, John Ortiz paid respondent $40.00 for the training required for a firearms waiver. Respondent provided Ortiz with four hours of classroom training, which included reading and classroom discussion, and approximately two hours of range training. During range training, Ortiz fired one hundred and fifty rounds of ammunition. In January 1992, Ortiz returned to the respondent for requalification with his .38 caliber pistol for his Class "G" license. Respondent asked Ortiz for $35.00, which he paid, and received his recertification without any further training. On January 15, 1992, a Department of State investigator met with respondent to inspect his business records. Such inspection revealed that respondent had not maintained school records for a period of at least two years at his business location, and those that were available failed to disclose the type of training given, the location of the classes, a log of students and their signatures for each class, or the name of the instructor. Nor did respondent have copies of all certificates or diplomas presented to students for successful completion of training courses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the violations set forth in Courts I-VII of the administrative complaint, dismissing Count VIII of the administrative complaint, and revoking respondent's Class "K" Firearms Instructor License, Class "DI" Security Officer Instructor License, and Class "DS" Security Officer School/Training Facility License, reserving to respondent the opportunity to reapply for licensure following one year from the date of revocation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 1993. 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 2nd day of April 1993.
Findings Of Fact Mitchell was certified by the Criminal Justice Standards and Training Commission on May 8, 1992, and was issued Certificate No. 37-91-502-01. On April 20, 1992, Mitchell applied for a position with the Sumter Correctional Institution. The employment application asked if the applicant has ever been convicted of a felony or first degree misdemeanor. Mitchell answered "No" and certified that his answers were true, correct and complete. Mitchell also had to file a supplemental application which asks the applicant to list all arrests or convictions, including sealed records. Mitchell filled in N/A. Mitchell again attested that there were no willful misrepresentations, omissions, or falsifications in the supplemental application. Mitchell admits to having been arrested for involuntary battery on June 18, 1964; to having been arrested for strong-armed robbery on May 10, 1965; to having been arrested for disorderly conduct on December 1, 1965; to having been arrested for burglary on January 19, 1966; to having been arrested for deceptive practices on June 15, 1966; to having been arrested for purse-snatching on August 15, 1968; and to having been arrested for attempted deceptive practices on August 27, 1968. All these arrests for various misdemeanors and felonies occurred in Illinois. Mitchell admits not having divulged the arrests from Illinois on his employment application to Sumter Correctional Institution, but he claims that the omission of his arrest history on the employment application was not willful. He further claims that he chose not to list the arrest for deceptive practice on September 28, 1966, because, even though he was sentenced to a year in jail, he was granted a retrial and was cleared. Mitchell also says that he thought he was seventeen when he was arrested in 1962 and therefore did not have to list his arrests because at the time, he was a minor or youthful offender. However, he was twenty-one years old when he was arrested for the burglary and was twenty-three years old when he was arrested for purse-snatching and attempted deceptive practices. Mitchell also claims that despite his criminal history, he did not disclose the information because he had gotten other agencies to run searches of his criminal history background and those searches showed he had no criminal history in Florida. The evidence proves that Mitchell did not disclose his criminal history on the applications because he did not think the criminal history would show up if the agency ran a background check. The rest of his claims are rejected as being unworthy of belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order suspending the correctional officer certification of Gary L. Mitchell for eighteen months to be imposed retroactively to the September 1, 1993. DONE and ENTERED this 29th day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2654 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5-12(5); 13- 15(6); 16 & 17(7); and 19(8). Proposed finding of fact 18 is irrelevant and unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Gary L. Mitchell Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3(1); and 4(4). Proposed findings of fact 5 and 7-24 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1 and 6 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Gary L. Mitchell 26070 Hayman Boulevard Brooksville, Florida 32602 Steven G. Brady FDLE Regional Legal Advisor 400 West Robinson Street, Suite N209 Hurston Building, North Tower Orlando, Florida 32801 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
