The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of the hearing date of March 15, 1982, the commission had not prepared subject-matter indices of its Orders entered after January 1, 1975 resulting from: petitions for rulemaking; hearings held pursuant to Section 120.57, Florida Statutes. determinations relating to presumptive and effective parole release dated (parole grants) or parole revocations; petitions for a declaratory statement issued prior to approximately July of 1981, or other final orders not otherwise defined. Other than as referred to in paragraph 2 of these Findings of Fact, the Commission has not produced indices of its current 1981 orders. (TR. 9) Neither the Commission's General Counsel nor the Planning and Evaluation Director, both of whom receive their assignments of duties and responsibilities from the Commission, have been directed by the Commission to prepare a subject- matter index of final Commission orders issued pursuant to hearings held under Section 120.57, Florida Statutes, or petitions for rulemaking. (TR. 34, 35, 37 & 104) The Commission's General Counsel and Planning and Evaluation Director would prepare such indices only if directed to do so by the Commission. (TR. 35 & 104) The General Counsel's office has been directed by the Commission to prepare an index of declaratory statements issued by the Commission. With the aid of an assistant counsel, the Commission's General Counsel has prepared a subject-matter index of declaratory statements purportedly issued as of September 30, 1981. (Appellant's Exhibit 3) This index utilizes key words or topics, without further citation to statutes or rules. It includes all declaratory statements issued by the Commission during the approximately ninety- day period prior to September 30, 1981. The General Counsel, who has been in that position since March of 1980, was aware of no other declaratory statements issued by the Commission or petitions for a declaratory statement submitted to the Commission. (TR. 108) A draft of an update to the subject-matter index for declaratory statements issued after September 30, 1981 has been prepared and was expected to be in final form within thirty days of March 15, 1982. The Office of General Counsel will prepare and produce an updated subject-matter index of declaratory statements on at least a quarterly basis. (TR. 101-103) As indicated by the opinions rendered in the case of Turner v. Florida Parole and Probation Commission, 379 So.2d 148 (Fla. 1st DCA, 1980) aff'd, 389 So.2d 1181 (Fla. 1980), and various issues of the Florida Administrative Weekly, 1/ petitions for a declaratory statement have been received and ruled upon by the Commission prior to July 1, 1981. As noted above, the witnesses presented by the Commission to testify in this proceeding had not been assigned the task of preparing subject-matter indices for orders on petitions for rulemaking, orders following hearings conducted pursuant to section 120.57, Florida Statutes, and other final agency decisions which are equivalent to "orders". Involved in the preparation such indices would be a review of the file and a development of a subject heading or headings for each such order. The Commission presented no further evidence regarding the practicability or cost of preparing such indices or any lack of public benefit to be derived from access to such indices. Absent such evidence, it is specifically found that it would not be impracticable, unduly time- consuming, or cost-prohibitive for the Commission to prepare or produce subject- matter indices of its Orders resulting from petitions for rulemaking, Section 120.57 hearings or other final agency decisions which are equivalent to "orders." Whatever inconvenience such indices cause the Commission in terms of time and costs of preparation are far outweighed by the public benefit to be derived from accessibility to the Commission's interpretations of the law and development of agency practice and incipient policy. The Commission has failed, without sufficient justification, to comply with the Court's mandate and Order dated September 3, 1981, to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking" and has further failed to comply with its own approved proposal to produce induced of current 1981 orders on or before November 30, 1981. Because of a change in the statutes effective January 1, 1979, with respect to the granting of parole and the establishment of presumptive and effective parole release dates, orders of the Commission entered prior to that date have no relationship to orders entered after that date. Therefore, the public would gain no present benefit from an index of parole granting orders entered prior to January 1, 1979. The appellant, Florida Institutional Legal Services, Inc. , has withdrawn its request to have the Commission index parole granting orders issued from January 1, 1975 through December 31, 1978. (TR. 12 & 13) As to the period between January 1, 1979 through December 31, 1980, it would be beneficial to the public to have access to an index of only those parole granting orders which contain a reference to a constitutional provision, statute or rule, since such orders may contain the agency's interpretation of the law or incipient policy. The parole revocation process has not changed since 1975. It would be beneficial to the public to have access to all those parole revocation orders of the Commission entered since 1975 which contain a reference to a constitutional provision, statute, or a rule. Jay D. Farris, the Commission's Planning and Evaluation Director, has been appointed by the Commission to be in charge of the indexing project as it relates to parole granting orders (which includes Commission determinations on presumptive and effective parole release dates) and parole revocation orders. This assignment is in addition to his other duties which include the drafting of all legislation for the Commission, lobbying, acting as a part-time clerk of the Commission, preparing complex case analysis for the Commission, the drafting of proposed rules, holding public hearings for proposed rules and training Commission hearing examiners when there are rule changes. Mr. Farris has only a secretary on his staff. (TR. 28, 29) Since the District Court entered its opinion on November 26, 1980 (petition for rehearing denied on January 8, 1981) reported at 391 So.2d 247, the Commission, through Mr. Farris, has conducted an investigation into the number of Commission actions which could possibly fall within the parameters of the Court's ruling regarding the prepartion of subject-matter indexing. It was determined that a minimum of 600 actions per week would fall under the purview of that decision. A private indexing firm would charge approximately $1.00 per action to review the data and produce an index. (Tr. 16) Determining that this cost would be prohibitive, Mr. Farris has been working with the Bureau of Management Information Systems (MIS) of the Department of corrections to prepare a computer program which would meet the Commission's indexing requirements. By statute, the department of Corrections maintains the sole offender-based information and records system for the joint use of the department of Corrections and the Commission. Section 20.315(20) Florida Statutes. The function of the Bureau of Management Information Systems of the Department of Corrections is the automation of departmental records for ease of retrieval and management information. To accomplish this function, the Department of Corrections shares a computer with the Supreme Court of Florida, with the Department owning 67 percent and the supreme Court owning 33 percent of the computer. The computer itself is located in the basement of the Supreme Court, but the Department of Corrections has approximately 40 terminals located in its headquarters in Tallahassee and in excess of 100 terminals located throughout the State. The computer maintains a complete offender record of each Florida inmate. This record includes the inmate's date of birth, race, sex, the offense for which he or she is incarcerated, other offenses, gain time accrued, presumptive, projected and current release dates and FDLE and FBI numbers. Without the prior preparation of a specific program by the Bureau of MIS, it is not possible to retrieve from the computer any generic information on Florida inmates. For example, while the computer presently has the ability to produce a screen view of the record of any particular inmate, it cannot search through its entire data base and produce screen printouts of the names of all those inmates meeting any particular criteria, such as those serving a mandatory 25-year capital life sentence. (TR. 91-94) The records of 53,700 offenders are presently contained in the computer's data base, with some 24,000 records being for active inmates. (TR. 93) In December of 1981, the Commission, through Mr. Farris, entered into discussions with Reynold L. Ferrari, the Chief of the Bureau of MIS for the Department of Corrections, and his staff regarding the subject of utilizing the computer system to produce and maintain a subject-matter index for Commission orders concerning the granting and/or revocation of parole. A basic technical problem presently exists in the computer program utilized by the Department of Corrections. The computer is only designed to handle single actions taken by the Commission on any particular day. Often, multiple separate actions by the Commission are taken in one day on a particular inmate, and the present computer programming does not allow multiple entries at one point in time. This problem is one of systems design and involves more than reprogramming. It involves a definition of a new data base that will have to be created for the Commission, and then programming it to provide the input capability to add additional data and defining the output reports that are required. (TR. 90) Once a systems design is accomplished and all the relevant data is in the computer, it will take about three weeks or less to produce a program that would result in a printout format similar to that developed and utilized by the Commission in its declaratory statement index. (Appellant's Exhibit 3, TR. 79, 84, 85) The Commission has not specifically or formally requested the Department of Corrections to resolve the multiple-action problem. It has simply asked the Department to look into the problem and estimate the length of time it would take to accomplish certain results. (Appellee's Exhibit 2) Mr. Ferrari has informed the Commission that he would need an exact and specific definition of the output required by the Commission and would work with the Commission and its staff in achieving the desired goals. (Appellee's Exhibit 3, TR. 89, 90) The answer to how long it would take to redesign the system is dependent upon a detailed definition of the information needed by the Commission. (TR. 98) A detailed statement of what is required by the Commission has not been provided to the Bureau of MIS. (TR. 99) The only evidence adduced by the Commission as to its time frame for providing the format the Commission requires was the statement of Mr. Farris that "I would like to have had it done some time ago, but just as soon as I possibly can. This has received a great deal of priority, I must say." (TR. 72) The Commission did make a budget request for two new positions--a data entry operator and a clerk typist III--in order to comply with indexing requirements and to augment their data input ability. (TR. 74, Appellee's Exhibit 4) Presently, the only information being provided by the Comission to the computer data base is current, single Commission action regarding presumptive parole release dates (PPRD) and the inmate's next interview date. Included within the PPRD information presently being put into the computer is a code which makes reference to aggravating factors contained in the Commission's rules. (TR. 69, 70) Prior Commission's actions regarding PPRDs have not been put into the computer data base. The manner in which this information will be retrieved or the printout format has not been developed yet. (TR. 52, 53) It is expected that the format will be similar to that developed for the index of declaratory statements. (Appellant's Exhibit 3). The Commission has not requested the department of Corrections to produce any particular format for a subject-matter index of parole granting or parole revocation orders (TR. 53, 54) and no evidence was tendered as to when such a request would be made. Mr. Farris, the person responsible for such indices, could give no specific date for the production of such indices (TR. 38) While the Commission has not prepared a final proposed style of indexing for Commission actions regarding presumptive and effective parole release and parole revocations, it is expected that such indices would be broken down by topic similar to that prepared by the Commission for declaratory statements. It is not known whether such indices will include citations to constitutional provisions, statutes or rules. (TR. 64) According to Mr. Farris, "the specification of the nature of the index is yet to be determined." (TR. 66) RECOMMENDATIONS TO THE COURT The undersigned, as the appointed commissioner of the Court, has been charged with the responsibility to take evidence and report recommendations to the Court with respect to a determination of the following issues: The practicability of the Commission preparing indices of its orders entered from 1975 through 1980; and The reasonableness of the schedule proposed by the Commission in light of the proposed contents of the indices, the cost of preparation, and the public benefit to be gained therefrom. Prior to addressing those issues, it must first be noted that, with the exception of preparing a subject-matter index for a portion of its declaratory statements, the evidence adduced at the hearing illustrates that the Commission has made absolutely no effort to produce indices of its current 1981 orders. This action is contrary to the Court' s original mandate as well as Paragraphs 1 and 2 of the Court's Order entered on September 3, 1981. There has been absolutely no evidence adduced in the proceedings before the undersigned as to a legitimate reason or justification for such noncompliance with the Court's directives. Indeed, the evidence illustrates that the Commission has simply not directed its attention to this important matter. Any problems attendant to the computer system utilized by the Department of Corrections should have absolutely no effect upon the ability of the Commission to immediately prepare subject- matter indices for all its Orders resulting from petitions for a declaratory statement, hearings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking or other matters which result in the issuance of the functional equivalent of an "order" as it is defined in Section 120.52(9). Florida Statutes. Turning now to the issues addressed in Paragraph 3 of the Court's September 3, 1981 Order, it is concluded from the evidence adduced at the hearing that it would not be impracticable or cost-prohibitive for the Commission to immediately prepare indices, whether arranged by subject matter and/or citations to constitutional, statutory or regulatory provisions, for its Orders entered from 1975 through 1980 in those matters arising from: petitions for a declaratory statement, proceedings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking, and cases, such as the instant proceeding, which result in the functional equivalent of an "order" as defined in Section 120.52(9), Florida Statutes. The public benefit to be gained from such indices is obvious since such Orders are indicative of an agency's interpretation of the laws under which it operates and can indicate incipient agency policy as developed on a case-by-case basis. The Commission has made no good-faith effort or diligent attempt to comply with its own schedule for the accomplishment of the preparation of indices for the Orders listed above and neither the contents, costs, or practicability of preparing such indices justify the time frame proposed. With respect to the remaining Orders issued by the Commission between 1975 and 19890--those involving parole grants and parole revocations--it is concluded that an index of Orders on parole grants entered prior to 1979 would not be beneficial to the public due to the drastic change in the law which became effective on January 1, 1979. It is further concluded that only those post-1974 Orders concerning parole parole grants which contain a reference or citation to a constitutional, statutory or regulatory provision would contain information beneficial to the public. Therefore, an index limited to such Orders would satisfy the requirements of Section 120.53(2)(c), Florida Statutes. The Commission has failed to adduce evidence that the preparation of a subject-matter and/or citator index for its Orders entered after January 1, 1975 involving parole revocation and its Orders entered after January 1, 1979 involving parole grants would be either impracticable or cost-prohibitive. While the computer system will need to be redesigned to accomplish multiple- entries in cases where the Commission takes more than one action on the same date regarding a single inmate, it is possible to make this change. The Bureau of Management Information Systems stands ready and able to effectuate such a design change and is simply waiting for a specific and detailed definition of the information sought to be retrieved by the Commission. Again, from the evidence adduced at the hearing, it appears that the Commission has simply made no diligent or good-faith effort to determine the format of the required indices or the information it desires to accomplish the indexing task. In summary, it is concluded that the Commission, along with the joint assistance and efforts of the Department of Corrections, presently has or can quickly obtain the capability of preparing indices of all Orders entered from 1975 through the present date. The Commission presented no evidence that the preparation of such indices would be cost-prohibitive, or that, other than its lack of attention to the matter, the contents of the indices would make the task unduly time-consuming or would otherwise render the indexing requirement prohibitive. With the exception of pre-1979 parole granting Orders and Orders granting or revoking parole which contain no reference to a constitutional, statutory or regulatory provision, the public will benefit from an index of, and consequently access to, all Orders of the Commission. In order to accomplish the indexing task, the Commission need only render a determination of the format for each index and provide the staff to either review the files containing the Commission Orders or provide the necessary input to the computer system so that the required information can be retrieved from the computer. The evidence presented by the Commission illustrates that not only has the Commission failed to adhere to its own proposed schedule of compliance with the law, the schedule proposed is unreasonably lengthy in terms of the contents, cost and information presently available, as well as the public benefit to be derived from the production of the indices. Respectfully submitted and entered this 4th day of June, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.
The Issue Whether Respondent violated Sections 943.1395(6), (7), and 943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(c) and 11B-20.0012(1)(f), Florida Administrative Code.
Findings Of Fact Respondent, Michelle Mann (Mann), was certified by the Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department) on October 11, 1991, and was issued Correctional Probation Officer Certificate Number 122933 and Instructor Certificate Number 595-40-7895. Mann was employed by the Florida Department of Corrections as a correctional probation officer in December 1994 until her resignation in February 7, 1997. Dwight Williams, aka Dwight Moment is an inmate with the Florida Department of Corrections. In December 1994, Dwight Williams was on probation with the Florida Department of Corrections for the charge of conspiracy to traffic cocaine. Mann was assigned as Mr. Williams' probation officer on December 18, 1994. This was the first time that Mr. Williams and Mann had met. From December 1994 through December 1996, Mann was Mr. Williams' supervising probation officer. Between December 1994 and November 27, 1996, Mann initiated and engaged in a physical relationship with Mr. Williams, which included hugging, kissing, and sexual relations. During this time, Mann and Mr. Williams went to hotel rooms and had sexual relations between fifteen and twenty times.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a Final Order be entered revoking Michelle F. Mann's Correctional Probation Certificate Number 122933 and Instructor Certificate Number 595-40-7895. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of March, 1999. COPIES FURNISHED: A. Leon Lowry, II, 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 James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michelle Mann 1556 Northwest 5th Street Fort Lauderdale, Florida 33311
The Issue The issue in this case is whether the Petitioner is qualified to take the examination for licensure as a real estate salesperson.
Findings Of Fact On or about March 6, 1995, the Petitioner filed an application seeking to be licensed as a real estate sales person. In response to question number 9 on the application form (which inquires about the applicants's criminal history), the Petitioner answered in the affirmative and included the following explanatory details: I entered a plea of guilty to 1 count of distribution of a controlled substance on March 25, 1993, in Federal Court, before Judge Adkins. I was sentenced to 2 years in a Federal Camp. On January 23, 1992, the Petitioner was arrested and charged with two felony charges related to possession of cocaine and conspiracy to possess cocaine. On March 26, 1993, the Petitioner entered a plea of guilty to Count 2 of the indictment. Count 2 charged the Petitioner with conspiracy to possess with intent to distribute cocaine, which is a Class B felony in violation of 21 USC Section 846. On March 26, 1993, a judgment was entered in which the Petitioner was adjudged guilty of the crime described above, was sentenced to a prison term of 24 months, and was fined $15,000.00. The judgment also imposed 4 years of supervised release following release from prison. The Petitioner served 15 months in federal prison and was then transferred to a halfway house for a period of four months. The Petitioner then served the last two months of his sentence on home confinement. He was released from confinement on May 25, 1995, at which time he began a four-year period of probation. The Petitioner is presently on probation. His probation period is presently scheduled to end in May of 1999. With good behavior he may be able to obtain an earlier release from probation. Since his release from confinement the Petitioner has been making regular payments towards his $15,000.00 fine. He presently owes about $10,500.00 on the fine. Following his arrest, the Petitioner cooperated with law enforcement authorities and his cooperation led to the arrest of a number of other people on charges related to possession or distribution of cocaine. Since his release from confinement the Petitioner's primary employment has been in the carpet business. The Petitioner appears to have an earnest desire to be rehabilitated. He did not, however, present any persuasive evidence that he had achieved that goal. Notably absent from the record is any testimony from friends, relatives, neighbors, employers, or business associates regarding such matters as the Petitioner's present character and whether he is honest, truthful, and trustworthy.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application. It is further recommended that such denial be without prejudice to the Petitioner's opportunity to file a future application as such time as he may have persuasive evidence of his rehabilitation. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February 1996. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties: Proposed findings submitted by Petitioner: (None submitted.) Proposed findings submitted by Respondent: Paragraphs 1 through 10: Accepted in substance with a few additional details in the interest of clarity. Paragraph 11: Rejected as constituting argument about the quality of the evidence, rather than being a proposed finding of fact. Paragraphs 12 and 13: Rejected as a combination of subordinate and unnecessary details and argument. COPIES FURNISHED: William N. Halpern Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Mr. Raul Bado 8490 Southwest 96th Street Miami, Florida 33156 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Aubrey Minor was certified by the Criminal Justice Standards and Training Commission on April 24, 1986, the day the Commission issued respondent a certificate, No. 23-86-002-01. In the late summer of 1988, Aubrey Minor worked as a correctional officer in the Escambia County Jail. On September 1, 1988, McArthur Young, an inmate, was so slow leaving the visiting area that respondent locked him in and left, in order to avoid further delaying escorting other inmates to their cells. When he returned to retrieve the recalcitrant inmate, and while he was escorting him down the corridor that runs by the control room, he repeatedly asked him his name. Exasperated at the inmate's failure to tell him, respondent Minor grabbed McArthur Young's arm in order to read the name written on the wrist band he wore. When Mr. Young pulled his arm away, Mr. Minor grew still angrier, and swung with full force, hitting McArthur Young in the jaw with the jail keys. Although only two six-inch brass keys were on the stainless steel ring when respondent hit the inmate, each weighed a pound, according to uncontroverted testimony. Shouting by both men had attracted the attention of other Escambia County Jail personnel. Correctional officer Michael D. Miles saw respondent swing while the inmate's arms hung at his sides. Reacting threateningly to the blow, McArthur Young stepped toward respondent Minor. By this time, Corporal Frank Mayo, who had reached the spot where the men stood, stepped between them. While another officer took respondent in hand, Corporal Mayo led the inmate to the infirmary, where the nurse gave him an ice pack. His jaw was red and slightly swollen but the tooth he claimed was loose did not seem loose to the nurse. In the ensuing internal investigation, respondent lied to his superiors, although he conceded that "he got a little bit out of control." T.37. After the investigators concluded that his use of force had not been justified, Escambia County terminated respondent's employment. Jail policy forbids the use of force, even in response to a verbal threat.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate. DONE and ENTERED this 1st day of June, 1990, in Tallahassee, Florida. COPIES FURNISHED: Abrey Minor 901 West Massachussetts Lot #17 Pensacola, FL 32505 Joseph S. White, Esquire Department of Law Enforcement Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ROBERT T. BENTON, II 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 1st day of June, 1990.
The Issue Whether Respondent, John C. Minder, committed the violations alleged in the Amended Administrative Complaint issued by the Department of Agriculture and Consumer Services (Petitioner) on November 17, 2014; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of professional mappers and surveyors pursuant to chapter 472, Florida Statutes. At all times material, Respondent was a licensed professional surveyor and mapper in Florida, having been issued Florida license number LS 4071. In December 2012, a three-count AC was issued to Respondent alleging violations of “former” sections 472.0351(1)(g), and (h), Florida Statutes (2012), through violating Florida Administrative Code Rules 5J-17.052(2)(a)8.d., and 5J-17.052(2)(c)1.a.5/ Respondent “freely and voluntarily” entered into a Settlement Stipulation with Petitioner that resolved the AC. That Settlement Stipulation contained the following provision at paragraph 11(e): Respondent shall provide the Board with a list of all signed and sealed surveys containing a minimum of six (6) surveys which were performed by Respondent within 120 days of the Final Order. The Board’s Probation Chair will randomly select (6) of Respondent’s signed and sealed surveys for review from the survey list submitted by Respondent. Within seven (7) calendar days6/ of being notified by the Board of the surveys which were selected for review, Respondent shall have post-marked and submitted to the Board Office signed and sealed surveys for the surveyed properties selected for review, along with copies of the relevant field notes, the relevant full size record plats, all measurement and computational records, and all other documents necessary for a full and complete review of the surveys, in accordance with Florida Administrative Code Rules 5J-17.016, 5J-17.083, and 5J-17.085. Respondent must attend the Probation Committee meeting at which the surveys are to be reviewed. Failure to comply with this provision may result in Respondent being referred to the Department for non-compliance with the final order of the Board, and the Board may lift the stay of suspension. Respondent provided a list of his signed and sealed surveys for review. In accordance with the Board’s procedures, the Board chair randomly selected six surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review. Respondent admits he appeared before the November 6, 2013, Committee meeting. The excerpt transcript of the November 6 Committee meeting recorded a discussion between the Committee members and Respondent. It further recorded that the Committee voted to “deny the [Respondent’s] six surveys.” The excerpt transcript of the November 7, 2013, Board meeting, aside from the cover page indicating that it involved Respondent (“IN RE: JOHN C. MINDER”), fails to specifically identify Respondent or the action that the Committee wished to be directed towards him.7/ Further, the transcript fails to reflect the actual vote taken by the Board, as the recording and transcript stopped before the vote was recorded. Respondent provided a second list of all his signed and sealed surveys for review. The Board chair randomly selected six new surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review. Respondent admits he appeared before the February 19, 2014, Committee meeting.8/ The excerpt transcript of the February 19, 2014, Committee meeting recorded another discussion between the Committee members and Respondent. It further recorded that the Committee voted not to accept Respondent’s “second round” of surveys, and to lift the stay on Respondent’s license suspension until he “takes and passes the Florida Jurisdiction.” The excerpt transcript of the February 20 Board meeting reflects that the Committee reported to the Board: John Minder appeared with a second set of surveys. They were denied. He must take and pass the Florida jurisdiction portion of the State exam.9/ The Board’s Order Lifting Stay of Suspension, rendered on March 17, 2014, in pertinent part, provides the following: THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED: The report and recommendation by the Committee is hereby adopted. Respondent’s license is hereby SUSPENDED. If the Respondent files a written Petition for Reinstatement in conformity with the applicable administrative Rules (including but not limited to Rules 5J-17.083 and 5J-17.085, Fla. Admin. Code,) then the Board may consider the Petition and may reinstate the license. The Committee’s report only stated that Respondent “must take and pass the Florida jurisdiction portion of the State exam.” There is no Committee recommendation of lifting the stay of suspension or a suspension of Respondent’s license. Mr. Roberts was the only person to testify at the hearing. Mr. Roberts is not and never has been a licensed surveyor or mapper. His discussion of the probation process was helpful; however, he did not provide any direct testimony supporting the Complaint. His hearsay testimony cannot support a finding of fact. Although Mr. Roberts testified to what he saw Respondent provide and what the Committee members saw, his testimony cannot support the allegations that the surveys Respondent submitted were not in compliance with Minimum Technical Standards. There was no credible expert testimony provided to support the Petitioner’s allegations. Further, when asked the following: “And at that [General Board] meeting was a decision made to enter an order lifting a stay of suspension upon Mr. Minder’s license?” Mr. Roberts responded: “To the best of my recollection, the Board decided and voted unanimously to lift the stay of suspension on Mr. Minder’s license.” The Board transcript does not substantiate that recollection. Petitioner did not prove that Respondent’s surveys failed to meet minimum standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers issue a final order dismissing the Complaint. DONE AND ENTERED this 11th day of February, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 11th day of February, 2015.
Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
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 Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL 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 17th day of June 1994.
Findings Of Fact On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist. While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face. Officer Winkle then grabbed Mr. Kitchens and put him on the floor. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed. DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of January, 1992.
The Issue The issue is whether Respondent knowingly obtained or used, or endeavored to obtain or use, the property of another valued at $300 or more with the intent to temporarily or permanently deprive the owner of the right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the demeanor of the witnesses while testifying and other substantive and material evidence of record, the following findings of fact are made: At all times material to this cause, Respondent was a certified Correctional Officer, having been certified on or about April 2, 1991, and issued Correctional Officer Certification No. 92406. On October 8, 2000, Respondent, in the company of two other persons, Steven Smith and Henry Fox, went to a business named "Four Star Refinish" located at 898 County Road 621, Lake Placid, Florida. David Trobaugh is the owner of Four Star Refinish and the compressor at issue in this proceeding. The building housing Four Star Refinish had been largely destroyed by fire before October 8, 2000, and the compressor, valued at more than $300, was located outside the building, undamaged. On October 8, 2000, at the business site of Four Star Refinish, Respondent, Steven Smith, and Henry Fox, agreed to take the compressor and together removed the compressor from the premises and transported it to the residence of Steven Smith. On October 12, 2000, Respondent gave a statement to Robert Neale, Highlands County Sheriff's Department, admitting that he, Steven Smith, and Henry Fox loaded the compressor onto a trailer and together transported it to Steven Smith's residence. Respondent, after his admission, assisted Deputy Neale in recovering the compressor by contacting Steven Smith by telephone, who then provided the location of the compressor. At the location provided by Steven Smith, the compressor was located and recovered by Deputy Neale, identified by the owner, David Trobaugh, and returned to him. Respondent, with knowledge of the unlawful taking of the compressor, with knowledge of the parties who unlawfully removed the compressor, and with knowledge of the compressor's whereabouts, concealed his participation in the aiding and abetting in the commission of a felony by Steven Smith and Henry Fox, when initially approached by law enforcement. As a direct result of the foregone and on April 1, 2001, in the case of State v. Jerry E. Lambert, the State Attorney entered a nolle prosequi, in Highlands County Circuit Court Case No. CF00-00685A-XX, under which Respondent was charged with one count of Grand Theft in Excess of $300, with the stated ground for the nolle prosequi listed as "Case Referred to CDS (Citizen Dispute Settlement). An Agreement was reached and restitution and fees paid." Petitioner has proven by clear and convincing evidence that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner. Respondent's admitted participation in the commission of a felony offense evidenced his intentional failure to maintain good moral character and proves his failure to maintain qualifications required of a certified correctional officer. Respondent offered no mitigating evidence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's Correctional Officer Certification No. 92406. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2003. COPIES FURNISHED: Jerry E. Lambert 126 East Royal Palm Avenue Lake Placid, Florida 33852 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 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
