The Issue The issue for determination is whether Petitioner’s Equivalency of Training Out-of-State/Federal Officer Form (CJSTC-76) should be approved.
Findings Of Fact Mr. Benvenuti is seeking eligibility for an equivalency of training exemption from basic recruit training. Mr. Benvenuti has approximately 18 years of experience in law enforcement, fire, and emergency medical service. Mr. Benvenuti was employed as a firefighter in the State of Connecticut, with the City of New London, from January 1971 to July 1979. He was also employed as a police officer in the State of Connecticut, with the Town of Waterford, from June 1977 through December 1998, when he was not on shifts with the City of New London as a firefighter. Additionally, Mr. Benvenuti was the certified Fire Marshall for the City of New London and the Acting Deputy Fire Marshall for the Town of Waterford. On January 7, 1985, Mr. Benvenuti was certified as a law enforcement officer in Florida and became a law enforcement officer with the Oakland Park Public Safety Department in Oakland Park, Florida. He voluntarily left the Oakland Park Public Safety Department on August 20, 1987, to return to Connecticut. When Mr. Benvenuti returned to Connecticut in 1987, he was re-employed by the New London Fire Department. In 1989, because of a lower back injury, he retired. Mr. Benvenuti was subsequently licensed by the State of Florida as a private investigator. He worked as a private investigator from 1991 to 2001, with a company performing investigations and surveillance. During his tenure with the company, Mr. Benvenuti received training from the United States Customs Office and the United States Drug Enforcement Administration and performed airport security in Costa Rica. Mr. Benvenuti is presently the general manager of a towing company in Fort Lauderdale, Broward County, Florida. Among other things, he has constant contact with law enforcement officers. Mr. Benvenuti has impressive letters of recommendation. The letters of recommendation include recommendations from the Chief of Police of the Waterford Police Department and of the Oakland Park Public Safety Department, and the Fire Chief of the City of New London. During the summer of 2003, Mr. Benvenuti decided to get re-certified, as a law enforcement officer in Florida, since he had a "love" for law enforcement and after becoming aware that a friend of his had returned to school in the spring of 2003 for re-certification. Mr. Benvenuti inquired about re- certification at Broward Community College (College). The College offers the Pre-Exam Qualification Course for the Equivalency Training exam. Mr. Benvenuti was informed by the College that the class offered in July 2003 was already full and that he had to wait until the next available class was offered, which was in September 2003. In August 2003, Mr. Benvenuti forwarded his information to the College to register for the class, together with the required registration fee. The class was scheduled for September 29 through October 21, 2003. Notification of his acceptance into the class was forwarded to Mr. Benvenuti on September 2, 2003, by the College. On August 23, 2003, Mr. Benvenuti filed a completed Equivalency of Training Form with the CJSTC. On the Equivalency of Training Form, he indicated, among other things, that he was seeking certification as a law enforcement officer; that he was an inactive Florida officer; and that his prior criminal justice employment was with the Oakland Park Police Department, as a law enforcement officer from January 17, 1985 to August 20, 1987. CJSTC reviewed Mr. Benvenuti's Equivalency Training Form. By letter dated August 25, 2003, CJSTC informed Mr. Benvenuti that, due to a recent change in the law for eligibility, which took effect July 11, 2003, his eight-year break in employment made him ineligible for equivalency training and that, therefore, his Equivalency Training Form was denied. The College was not aware of the change in the law until it was re-contacted by Mr. Benvenuti regarding the denial by CJSTC. Mr. Benvenuti's qualifications are not at issue in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order denying approval of Richard A. Benvenuti's Equivalency of Training Out-of-State/Federal Officer Form (CJSTC-76). DONE AND ENTERED this 2nd day of February, 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 2nd day of February, 2004.
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.
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent, in her capacity as a corrections officer for the alleged violation of Section 943.1395(7), Florida Statutes (2005)?1
Findings Of Fact Respondent was certified by the Commission on November 20, 1997, and was issued Correctional Certificate No. 176344. On November 22, 2005, Investigator Sally Cole was a law enforcement officer with the Jefferson County Sheriff's Office (Sheriff's Office) headquarted in Monticello, Florida. In her capacity as a law enforcement officer she had authority to serve arrest warrants. While Investigator Cole was in her office on the date at issue, the dispatcher for the Sheriff's Office called to tell Investigator Cole that there was a "lady in the lobby" of the office and jail complex related to the Sheriff's Office, who had an outstanding warrant pending against her. The woman referred to was Respondent, who was in Monticello, Florida to visit her husband, who was incarcerated at the Jefferson County Jail. Investigator Cole went to obtain the warrant which had been issued from Gadsden County, Florida. When Investigator Cole confirmed the information concerning the warrant issued by Gadsden County for Respondent's arrest, Warrant Number 05-717CFA, referring to a felony, Investigator Cole went to find Respondent. Investigator Cole located Respondent who was leaving the lobby of the Sheriff's Office complex and walking to the parking lot. Investigator Cole approached Respondent in the parking lot and explained information concerning the warrant. When Investigator Cole approached the Respondent, she told the Respondent that she was Investigator Sally Cole. When Investigator Cole tried to explain the information concerning the Gadsden County warrant to Respondent, the Respondent in reply continued to say that "she had never gotten in any trouble." Investigator Cole told Respondent that the Respondent was under arrest in view of the warrant from Gadsden County. Respondent got into her car. Two other persons were in the Respondent's automobile. They were her children. The children were ages 12 and 15. Investigator Cole told the Respondent to get out of the car. Respondent refused. Respondent started to become belligerent. Eventually Respondent got out of the car. By that time the Sheriff's Office dispatcher had made contact with other law enforcement officers, deputies, working for that agency. This contact was made because of a concern that Respondent was not being cooperative with Investigator Cole. Those persons who were contacted were Investigator Christopher Smith and Corporal Gerald Knecht. After Respondent got out of her car, Investigator Cole took her by the elbow to guide her inside the complex to be booked under the warrant issued by Gadsden County. Respondent started screaming at the deputy "to get her hands off of her." At that point the other deputies were in attendance to assist Investigator Cole. Respondent was not cooperating and tried to pull away from Investigator Smith when he was assisting in the escort. Investigator Smith told Respondent to cooperate and stop resisting. His identity was established by the badge on his belt which would remind Respondent that he was a law enforcement officer. During the incident, with her car keys in her hand and the attempt by the deputies to control her hands, Respondent in jerking away cut Corporal Knecht, either with the keys or her fingernails. This caused a minor laceration to the deputy. By the time the Respondent was brought inside the complex, she was "kind of dropping her weight, not wanting to walk and flailing her arms." This is understood to mean that someone had to support Respondent's weight. In addition Respondent was swinging her arms around, not with the intent to strike anyone, but snatching them away. Respondent was very upset and belligerent; not wanting to cooperate. Once in the lobby to the Sheriff's Office, Respondent began to be more difficult by trying to sit down and impede the escort. As the corridor to the jail was approached, then Corporal Virgil Joyner of the Jefferson County Sheriff's Office came to assist in controlling Respondent, in an effort to escort her to the area where she would be booked. Corporal Joyner had heard the commotion from where he was located in the booking area of the jail. Respondent was being very loud. He observed the struggle that the other deputies were having in trying to maintain control and advance Respondent into the jail portion of the Sheriff's Office. He got behind the Respondent and started pushing her in the direction of the jail portion of the Sheriff's Office. Finally, Respondent was placed in secure confinement in the jail part of the Sheriff's Office. Later when Investigator Cole went back to talk to Respondent, she apologized and said she was upset and again stated that she had never been in trouble and that she had not stolen anything. This refers to the nature of the arrest warrant from Gadsden County, which was in relation to allegations of theft. Because of the difficulties that the officers had experienced in trying to serve the warrant and book the Respondent, Investigator Cole charged the Respondent with resisting arrest with violence. That charge forms the basis for the present case.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 943.1395(7), Florida Statute, suspending the Respondent's correctional officer certificate for a period of 20 days, to be followed by one year probation with appropriate conditions for successfully concluding the probationary period. DONE AND ENTERED this 21st day of August, 2007, 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 21st day of August, 2007
The Issue The issue in this case is whether Respondent, Joe L. Wheeler, committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated November 16, 2005, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes. At the times pertinent to this matter, Respondent, Joe L. Wheeler, was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 169035 on December 11, 1996. He was employed with the Hollywood Police Department. At the times relevant to this matter, Mr. Wheeler was married to Donna Wilson-Wheeler. They were married in April 1996. They divorced in November 2004, after the events at issue in this matter. On June 11, 2003, Mr. Wheeler and Ms. Wilson-Wheeler lived together, along with four children: Vaughn Mitchell, who was 17 years of age at that time; S.M, who was 13 years of age at that time; J.W., who was five years of age at that time; and Jo. W., who was 12 years of age at that time. Vaughn Mitchell and S.M. are Ms. Wilson-Wheeler's sons from a previous marriage; J.W. is the daughter of Mr. Wheeler and Ms. Wilson-Wheeler; and Jo. W. is Mr. Wheeler's son. During the evening of June 11, 2003, Mr. Wheeler, Ms. Wilson-Wheeler, and all four children were in the family residence. At approximately 7:00 p.m., an argument began between Mr. Wheeler and Ms. Wilson-Wheeler in a downstairs room. Following the verbal altercation, which was over a video camera that Ms. Wilson-Wheeler had purchased for Mr. Wheeler, Mr. Wheeler went upstairs. Shortly after Mr. Wheeler went upstairs, Ms. Wilson- Wheeler, concerned about whether Mr. Wheeler would take her cellular telephone out of her purse, which she had left in the master bedroom, also went upstairs. When Ms. Wilson-Wheeler walked into the master bedroom, not finding her cellular phone in her purse, she confronted Mr. Wheeler, who was in the master bedroom bathroom. Ms. Wilson-Wheeler accused Mr. Wheeler of taking her cellular phone, which Mr. Wheeler denied. Ms. Wilson-Wheeler continued to accuse Mr. Wheeler, demanding that he return the phone. Both were angry and the "discussion" was heated. Ms. Wilson-Wheeler, angry over her husband's denials, went to a desk in the bedroom and picked up a camera used by Mr. Wheeler and offered it in exchange for her phone. Mr. Wheeler angrily demanded she give him the camera, and she complied because she "knew now that he was ticked off." Ms. Wilson-Wheeler told Mr. Wheeler that she would just have the telephone service provider turn her phone off and went to retrieve her purse from the bed. As she did so, Mr. Wheeler said, "Here's your phone in the bathroom where you left it." Ms. Wilson-Wheeler went to the bathroom to retrieve the phone. Believing that she had not left the phone there, she told Mr. Wheeler, "You took it out." She also told him that she guessed he was still angry about the video camera. Mr. Wheeler replied, "Fuck you, fuck you" and told her he could buy his own camera, to which Ms. Wilson-Wheeler said, "Good." As the verbal sparing continued, Mr. Wheeler lost control and grabbed Ms. Wilson-Wheeler, who was facing the bathroom sink, by the neck with his left hand and punched her hard in the head with his right fist. His grip on her throat was tight enough to restrict her breathing. After punching her, Mr. Wheeler kicked Ms. Wilson- Wheeler's legs out from under her, causing her to fall to the bathroom floor. Mr. Wheeler pinned Ms. Wilson-Wheeler on the floor with his knee and, while cursing her, continued to punch her in the face and head, causing her head to strike the bathroom floor. Mr. Wheeler continued to choke Ms. Wilson-Wheeler while he hit her, causing her to have difficulty breathing. She began to fear that she would lose consciousness. The children, who were downstairs when Mr. Wheeler first struck Ms. Wilson-Wheeler and heard the commotion, ran upstairs to see what was happening. Vaughn came into the bathroom and, as Mr. Wheeler held his fist above Ms. Wilson- Wheeler ready to strike her again, he grabbed Mr. Wheeler's fist. Jo. W. also entered the bathroom yelling at his father to stop. S.M. entered the room, pleading with his mother to get up. Mr. Wheeler, when Vaughn grabbed him, got up off the floor and, with Vaughn attempting to restrain him, told Vaughn he would not hurt Ms. Wilson-Wheeler anymore. Mr. Wheeler's attack on Ms. Wilson-Wheeler caused visible bruises and swelling to her face, right arm, and left leg. She also had scratches on her neck, arm, and legs as result of the battery. Ms. Wilson-Wheeler, picked up the telephone to call 911, but, when Mr. Wheeler threatened to kill her, did not make the call. Instead, she left the house. Although she considered driving to a police station to report the incident, she did not because of fear of what Mr. Wheeler would do to her. Eventually she drove to a nearby store, after picking up S.M., and had him go into the store to purchase a disposable camera. She then had S.M. take photographs, which were admitted into evidence, of the injuries caused by Mr. Wheeler. Ms. Wilson-Wheeler eventually returned to the family home. She spent the night in her daughter's room. The next day, Ms. Wilson-Wheeler attempted to discuss family finances with Mr. Wheeler, who was lifting weights in the garage. Mr. Wheeler became angry, cursed her, and repeated his threat to kill her. On June 18, 2003, after a dispute over the telephone, Ms. Wilson-Wheeler told Mr. Wheeler that she was going to report the incident. She was later told by her son that police officers were at the house with Mr. Wheeler. She immediately left her place of employment and went to the Pembroke Pines Police Department where she reported the June 11th incident. On June 19, 2003, Ms. Wilson-Wheeler sought a domestic violence injunction against Mr. Wheeler. The State Attorney's Office charged Mr. Wheeler in Broward County Court Case No. 03-21011MM10A with criminal misdemeanor battery based upon the events of June 11, 2003. On December 2, 2004, a jury returned a verdict finding Mr. Wheeler guilty of committing the criminal misdemeanor battery he had been charged with. Adjudication was withheld, and Mr. Wheeler was sentenced to a term of probation. On December 29, 2004, Mr. Wheeler resigned from employment with the Hollywood Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Joe L. Wheeler, violated Sections 943.13(7), and 943.1395(7) Florida Statutes (2003); dismissing the allegation that he violated Section 943.1395(6); and revoking his certification. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of November, 2006. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joe L. Wheeler Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
The Issue The issues for determination are: (1) Whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; (2) Whether Respondent violated the Pinellas County Sheriff rule relating to effectiveness in assigned duties; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent is employed by Petitioner as a detention deputy and has been so employed for more than 11 years. At all times relevant hereto, Respondent was assigned to the Pinellas County Detention Center (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Respondent is responsible for the care, custody, and control of inmates incarcerated at the Jail. On April 26, 1999, Respondent was assigned to the third shift, Special Operations Division, and was a corporal supervising the booking area. In connection with that assignment, Respondent's job responsibilities included booking inmates into the Jail. One part of the booking process required that detention deputies obtain certain information from individuals taken into custody in order to complete the necessary paperwork. While the information was being obtained, inmates are instructed to stand behind a blue line on the floor. As part of the booking process, detention deputies inventory the property in the possession of an inmate and make a written record of that property and "pat down" the inmate. Following these procedures, the inmate is seen by a nurse. However, if the nurse is unavailable, the inmate is told to wait in Pre-booking Cell 4 (Cell 4). Detention Deputy Robert McQuire was also assigned to work the third shift in the booking area of the Special Operations Division on April 26, 1999. On April 26, 1999, during the third shift, Jay McMillen (McMillen) was booked into custody at the Jail on the charge of driving without a valid driver’s license. Upon arrival at the Jail, he was taken to the booking area, instructed to stand behind the blue line on the floor near the counter in the booking area, and asked for information required to complete the inmate property form. Both Respondent and McGuire participated in booking McMillen but McGuire asked the inmate most of the questions. During the booking process, McMillen cooperated with Respondent and McGuire and provided the information required to complete the booking form. Moreover, McMillen complied with orders given to him by the detention deputies. Although McMillen occasionally wandered a few feet away from the booking counter, he would immediately return to the area behind the blue line when so instructed. While being booked, McMillen never threatened either Respondent or McGuire. Furthermore, McMillen never physically resisted the actions of the detention deputies or exhibited physical violence. During the course of the booking process, Respondent undertook a routine pat down search of McMillen. As a part of that process, McMillen again complied with Respondent’s instructions to assume the appropriate position. While engaging in the pat down, some slight movement of McMillen’s leg occurred. However, at the time of this movement by McMillen, Respondent took no action to restrain McMillen. After the pat down was completed, McMillen was then told to sit on the bench in the booking area and to remove his shoes for inspection. McMillen immediately complied with this instruction. After Respondent completed the search of the shoes, he then ordered McMillen to have a seat in Cell 4. When Respondent ordered McMillen to Cell 4 to await nurse screening, McMillen complied with that order. While McMillen was walking toward Cell 4, McMillen made a single verbal statement to Respondent. The statement by McMillen was inappropriate and unnecessary. In the statement, McMillen referred to Respondent as "bitch." In response to McMillen's statement, Respondent turned from his original direction of returning to the booking counter and followed McMillen into Cell 4. It was Respondent’s intent at that time to remove McMillen from Cell 4 and to transport him to C Wing, an area used for inmates who were agitated or upset and needed a "cooling down" period. Respondent’s decision to remove McMillen from Cell 4 to the C Wing was based solely upon the tone of McMillen’s voice and was not the result of any aggressive physical act taken by McMillen or a verbal threat made by McMillen. Respondent followed McMillen into Cell 4 without the benefit of assistance from another detention deputy. In fact, prior to acting upon his decision to remove McMillen from Cell 4, Respondent did not advise McGuire or any other detention deputy of his intent or ask for assistance. Although Respondent did not advise any detention deputy that he was going into Cell 4, McGuire apparently observed Respondent proceeding toward Cell 4, and within approximately nine seconds, followed Respondent into the cell. At the time Respondent entered Cell 4 there was another inmate in the cell. Once in Cell 4, McMillen complied with Respondent’s instruction to face the wall and place his hands behind his back. However, while Respondent was handcuffing McMillen, McMillen exhibited an aggressive move toward him. As a result of McMillen's aggressive move, Respondent exercised force in restraining McMillen, engaging in an arm hold and forcing McMillen to the ground. Once on the ground, McMillen did not resist further and cooperated in the efforts of Respondent and McGuire to return him to his feet. During the process of Respondent's utilizing this force, McMillen suffered a cut over his right eye that required medical attention. McGuire then assisted Respondent in the handcuffing and transporting of McMillen. McMillen was then transported to C Wing where he was seen by a nurse, his restraints were removed, and he was left in a cell. McMillen did not resist further at that time and complied with the instructions of Respondent. Following the incident described in paragraph 16, Respondent and McGuire reported the incident as a use of force. Their incident reports were reviewed by Respondent’s supervisor, Sergeant Richard Leach, who approved the use of force and completed his own report. Prior to completing his report, Sergeant Leach attempted to speak with McMillen, but McMillen refused to discuss the matter with him. Sergeant Leach discussed the incident with Respondent and McGuire, but did not review the videotapes of the pre-booking area for the time period during which the incident occurred. It was later that Sergeant Leach was advised there was a problem with regard to the use of force. After reports were completed and submitted, the videotapes made in the pre-booking area of the incident were reviewed by Lieutenant Alan Harmer, pursuant to the procedures utilized at the Jail. Lieutenant Harmer also reviewed the incident reports prepared by Respondent and McGuire and the use- of-force report prepared by Sergeant Leach. Upon reviewing the tapes, Lieutenant Harmer determined that the events leading up to the use of force and the use of force itself violated Sheriff’s Office rules. As a result of Lieutenant Harmer's preliminary determination, an internal investigation was conducted by the Administrative Inquiry Division (AID) of the Sheriff’s Office pursuant to the referral by Lieutenant Harmer. Sworn statements were taken by investigators, including statements of Respondent, McGuire, and the inmate in Cell 4 at the time of the altercation. In his sworn statement, Respondent alleged that McMillen was verbally abusive during the course of the booking process and that he further was uncooperative and had initiated an act of possible physical resistance by moving his leg in a manner possibly designed to strike Respondent. After completing its investigation, the AID presented its entire investigative file to the Administrative Review Board (Board) without conclusion or recommendation. Sergeant Leach was among the officers sitting on the Board. Although Sergeant Leach had initially approved the use of force when he reviewed the reports of Respondent and McGuire, he voted to discipline Respondent based upon his observations from the videotapes of the incident. The Board met and after reviewing the materials provided by AID and giving Respondent the opportunity to respond further, the complaint was sustained. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, General Order 3-1.3 (Level Three violation), 067, relating to a member’s effectiveness in their assigned duties. On April 26, 1999, you unnecessarily caused a use of force by entering a cell and confronting an inmate. Further, you exposed yourself to undue risk by entering the cell without appropriate back-up. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of one Level Three violation is the basis for assigning 15 disciplinary points. As a result, Respondent was assessed 15 disciplinary points. Sheriff’s Office General Order 10-2 identifies a disciplinary range for a total point assessment of 15 points to be a minimum discipline of a written reprimand and a maximum discipline of a three-day suspension. In the instant case, Respondent was assessed the maximum discipline, a three-day suspension. The conduct engaged in by Respondent in following McMillen into Cell 4 and then engaging in a physical altercation with McMillen based solely upon a single comment by McMillen, regardless of the extent to which the comment constituted a vulgar insult directed toward Respondent, did not constitute a good correctional practice. Moreover, such conduct is not consistent with the training or conduct expected of correctional officers. The role of correctional officers in a volatile situation is to calm the situation and to maintain control, not to act to aggravate or to escalate the dispute or to allow the inmate to control the situation via verbal comments. Proper correctional practice would have been to allow McMillen to remain in Cell 4 for sufficient time to cool off and calm down before initiating further contact with him. Similarly, the actions of Respondent in following McMillen into the cell by himself rather than obtaining assistance prior to entering the cell, are also contrary to good correctional practice. Again, this conduct by Respondent served only to potentially escalate and aggravate the confrontation, rather than to calm the situation. Moreover, it is also good correctional practice to have two detention deputies transport an inmate. This is particularly so considering the presence of another inmate in Cell 4 at the time Respondent entered the cell. There was no need for Respondent to enter the cell with McMillen or to initiate physical contact with McMillen, and his actions are contrary to Pinellas County Sheriff's Office Policy and Procedure File Index No. DCB 9.29 that requires that detention deputies refrain from one-on-one confrontations with inmates that may lead to physical confrontations. The actions of Respondent created a situation that led to a use of force and injury to McMillen that could have been avoided had Respondent effectively performed his duties as a detention deputy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a final order finding Respondent guilty of the conduct alleged in the charging document and upholding Respondent’s suspension for three days from his employment as a detention deputy with the Pinellas County Sheriff’s Office. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of February, 2000. COPIES FURNISHED: William E. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue Whether Petitioner should be given credit for certain answers provided on the State Officers Certification Examination (officers certification examination).
Findings Of Fact Petitioner, James H. Hall, Jr., took the officers certification examination and, thereafter, challenged certain answers to questions on the examination. Specifically, challenged questions were numbered 40, 49, 63, 89, 112, 115, 156, 143, 203, and 211. At hearing, Petitioner withdrew his challenges to questions 143 and 211, leaving eight questions to be challenged. The Commission is the state agency charged with the responsibility of administering officers certification examinations and establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2005).1 The officers certification examination is a multiple- choice examination with four answer choices for each question. Only one of the proposed answers is deemed correct. The answer deemed to be correct is the best of the four answer choices. The content of all the questions on the officers certification examination are derived from the basic recruit curriculum and from objectives that come from a job task analysis. The objectives appear in the beginning of every lesson of the curriculum. The curriculum materials are available to all applicants who take the officers certification examination. All the questions on the officers certification examination have been validated and field tested. Question 40 was clear and unambiguous and asked applicants to identify immunizations required for law enforcement officers. The correct answer to the Question 40 is (a). Petitioner selected answer choice (c), based on his belief as to what communicable disease officers should and could be vaccinated against. The correct answer to Question 40 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 69 percent of all test takers who have answered this question have answered it correctly. Petitioner's reason for choosing (c) as the answer to Question 40 does not constitute persuasive evidence establishing that the answer he chose is correct. Question 49 was clear and unambiguous and required the applicants to demonstrate knowledge and application of the phonetic alphabet used by the Federal Communications Commission and the United States military. The correct answer to Question 49 is (a). Petitioner selected answer (c), based on his belief that the response next to that choice "flowed, that it didn't have too many syllables in it." The correct answer to Question 49 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 89 percent of all test takers who have answered this question have answered the question correctly. Petitioner's rationale for selecting answer (c) does not constitute persuasive evidence establishing that the answer he chose is correct. Question 63 was clear and unambiguous and required the applicants to demonstrate their understanding of various mental disorders. The correct answer to the question is (d). Petitioner selected answer (a). The correct answer is included in the curriculum material and is not the answer chosen by Petitioner. The question is statistically valid, and 91 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 89 is clear and unambiguous and required applicants to know what an officer should do when a suspect is shot. The correct answer is (b). Petitioner selected answer choice (c). The correct answer is included in the curriculum material and is not the same answer selected by Petitioner. Question 89 is statistically valid, and 90 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 112 is clear and unambiguous and required applicants to demonstrate knowledge relative to parties at a traffic crash scene. The correct answer to the question is (d). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 115 is clear and unambiguous and required the applicant to demonstrate knowledge of the officers' duty regarding the Miranda warning. The correct answer choice is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 85 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 156 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the consent given by an adult needing assistance. The correct answer for Question 156 is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 73 percent of all persons who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 203 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the officers' responsibility in domestic violence incidents. The correct answer for Question 203 is (c). Petitioner selected the answer choice (d). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who have answered this question have answered the question correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Florida Department of Law Enforcement enter a final order rejecting Petitioner's challenge to the scoring on Questions 40, 49, 63, 89, 112, 115, 156, and 203 and dismissing the Petition. DONE AND ENTERED this 31st day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of May, 2006.
The Issue The issues for determination are: (1) Whether Petitioner, Deputy Michael Hughes, violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; and (2) Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, General Order 3-1.1.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: At all times pertinent to this case, Deputy Hughes was employed by the Sheriff's Office as a deputy sheriff. At the time of hearing, Deputy Hughes had over eighteen years' experience with the Sheriff's Office. On January 12, 2002, Deputy Hughes was working as a deputy sheriff and as a Field Training Officer in the Field Training Section of the Pinellas County Sheriff’s Office. He was accompanied throughout his shift by a trainee, Deputy Mark Shorter. At approximately 2:55 a.m. on January 12, 2002, Deputies Hughes and Shorter responded to 5125 Betty Street in St. Petersburg to assist Deputies Michael Pulham and Vance Nussbaum, who were already on the scene of a traffic stop where the driver was suspected of having active warrants for his arrest. Deputies Hughes and Shorter had already responded to two calls at 5125 Betty Street, both involving complaints by neighbors that persons in the house were causing a public disturbance. After the traffic stop, the deputies noticed yet another disturbance occurring in the residence at 5125 Betty Street. The four deputies entered the residence. As the deputies walked in, one of the occupants, later identified as Donald Hillebrand, punched Deputy Hughes in the mouth with his closed fist. The deputies attempted to place Mr. Hillebrand under arrest for battery upon a law enforcement officer. A melee ensued between the four deputies and several occupants of the residence. Donald Hillebrand was subdued, handcuffed, and arrested. Two women who participated in the fight were also arrested. Mr. Hillebrand was then escorted to Deputy Hughes’ cruiser and placed in the rear seat, without the use of a seat belt. Two other arrestees, Lisa Ruthven and Barbara Metzler, were placed in the rear of the Pulham/Nussbaum cruiser for transport. Because several other people were coming out of the residence and the situation remained volatile, the deputies decided they would regroup at a more secure location a short distance from the Betty Street residence to complete their paperwork on the arrests. From the time he was placed in the back of the cruiser, Mr. Hillebrand spewed a stream of racial invective at Deputies Hughes and Shorter in the front. Mr. Hillebrand is white. Deputies Hughes and Shorter are black. Lt. John Bocchichio, the shift commander, met the four deputies at the secure location. He noted that Mr. Hillebrand was screaming "nigger this and nigger that" from the rear of Deputy Hughes' cruiser. While Deputies Hughes and Shorter completed their paperwork at the rear of their cruiser, Lt. Bocchichio opened the door of the cruiser, leaned into the car, and attempted to speak to Mr. Hillebrand in an effort to calm him. Mr. Hillebrand continued yelling and screaming, and eventually spit at Lt. Bocchichio, who gave up and closed the door of the cruiser. Lt. Bocchichio did not tell Deputy Hughes that Mr. Hillebrand spit at him, but he thought Deputy Hughes might have seen the spitting through the rear window of the cruiser. Alex Metzler, another participant in the brawl at the Betty Street residence, rode up to the secure location on a bicycle. He claimed he was merely riding to a store, but the deputies believed he was there to interfere with them. The deputies arrested him, handcuffed him, and placed him in the rear of Deputy Hughes' cruiser along with Mr. Hillebrand. Mr. Metzler was seated on the passenger's side, and Mr. Hillebrand was seated on the driver's side of the back seat. Both men were handcuffed with their hands behind their backs. The cruiser had a plexiglass shield behind the driver's side of the front seat, and a steel cage behind the passenger's side of the front seat. Deputies Hughes and Shorter, with Shorter driving the cruiser, commenced their travel to the Pinellas County Jail facility, located at 144th Avenue and 49th Street in Clearwater. Mr. Hillebrand continued his tirade at both Deputy Hughes and Shorter, calling them "niggers," inviting them to "suck his dick," and offering to perform various sex acts on their mothers. While the cruiser was traveling on 49th Street approaching 144th Avenue, Mr. Hillebrand leaned over to Mr. Metzler’s side of the police cruiser and spit through the steel cage into the face of Deputy Hughes. Deputy Hughes instructed Deputy Shorter to stop the vehicle. Deputy Shorter stopped the cruiser in the left-hand turn lane at the intersection of 49th Street and 144th Avenue, within sight of the jail. After the cruiser was stopped, Deputy Hughes exited the vehicle, walked around the rear of the vehicle and opened the rear driver’s side door. Mr. Hillebrand was lying on the back seat across Mr. Metzler. Deputy Hughes admitted that he was angry at being spat upon, but maintained that his purpose in stopping and exiting the vehicle was to prevent Mr. Hillebrand from spitting on him a second time by securing his seatbelt. Deputy Hughes reached into the back seat of the vehicle in an attempt to make Mr. Hillebrand sit up on his side of the seat. Mr. Hillebrand resisted. Deputy Hughes noted that Mr. Hillebrand was on top of the seat belt buckle and decided that he needed to remove Mr. Hillebrand from the vehicle. Mr. Hillebrand continued to resist, lying back on the seat and using his legs and feet to prevent his removal from the vehicle. Deputy Hughes leaned into the vehicle in order to grasp Mr. Hillebrand's shoulders to gain hold of him. At this point, Mr. Hillebrand agreed to cooperate. He sat up, turned to sit sideways in the vehicle and placed his feet on the ground outside of the vehicle. Mr. Hillebrand then stood up outside the cruiser. Deputy Hughes testified that he thought Mr. Hillebrand was attempting to head-butt him, though he admitted that Mr. Hillebrand's actions were also consistent with the moves that a handcuffed person would have to employ to exit a vehicle. In response to the perceived head-butt, Deputy Hughes struck Mr. Hillebrand in the chest with a forearm strike and followed with a knee strike to the abdomen. Deputy Hughes briefly pinned Mr. Hillebrand against the rear quarter panel of the cruiser, then returned him to the back seat and attempted to fasten Mr. Hillebrand with the seat belt. Deputy Hughes was unable to fasten the seat belt because the buckle had worked its way under the back seat. Deputy Hughes looped the shoulder harness portion of the seat belt over Mr. Hillebrand’s chest and tucked the end of it underneath the seat to give Mr. Hillebrand the impression that the seat belt was properly fastened. Deputy Hughes closed the rear door of the vehicle and returned to his own seat in the cruiser. Deputy Shorter resumed the drive to the Pinellas County Jail, which took no more than two minutes. Mr. Hillebrand was turned over to corrections officers without further incident and charged with two counts of battery on a law enforcement officer (one for punching Deputy Hughes and one for spitting on Deputy Hughes) and one count of resisting an officer with violence. Deputy Hughes admitted that he did not prepare a use of force report as to this incident. His arrest report detailed the brawl at the Betty Street residence, but made no mention of the subsequent stop after Mr. Hillebrand spit on him. After the incident, Mr. Hillebrand's mother filed a complaint alleging the physical abuse of Donald Hillebrand during the course of the arrest. The complaint triggered an investigation by the Inspections Bureau of the Sheriff's Office regarding the incidents leading to the arrest of Mr. Hillebrand and the use of force by Deputy Hughes and the other deputies involved. At the conclusion of the investigation, an Administrative Review Board reviewed the allegations and evidence compiled by the Inspections Bureau and determined that Deputy Hughes had violated the Pinellas County Civil Service Act and the rules, regulations and operating procedures of the Shriff's Office. The Administrative Review Board's memorandum, dated August 3, 2002, set forth the following specific violations: Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five Violation), 5.15 relating to the Custody of Arrestees/Prisoners, to-wit: Arrestees/Prisoners shall be kept secured and treated humanely and shall not be subjected to physical abuse. The use of physical force shall be restricted to circumstances specified by law when necessary to accomplish a police task. Synopsis: On January 12, 2002, you removed a secured prisoner from the rear of your cruiser while enroute [sic] to the jail and subjected him to physical force, which was not specified by law or necessary to accomplish a police task. Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three Violation), 3.20, relating to the Use of Force Reporting, to wit: Whenever a member either on or off duty, is required to use physical force against another person, the member shall immediately notify a supervisor of the action taken and complete the necessary documentation for review. Synopsis: On January 12, 2002, you used physical force against another person, but failed to complete the necessary Use of Force Report for review. The Administrative Review Board did not conclude that Deputy Hughes pulled Mr. Hillebrand out of the cruiser for the purpose of abusing him, or that Deputy Hughes used such force as would constitute a violation of state law or the United States Constitution. The Board unanimously concluded that the force utilized with regard to Mr. Hillebrand was unnecessary and served no legitimate law enforcement purpose, thereby violating General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. The Board found that Deputy Hughes' actions toward Mr. Hillebrand were inappropriate, given that his reason for stopping the car and commencing the chain of events that led to his use of force was to prevent Mr. Hillebrand from spitting on him again. The Board found that Deputy Hughes could have avoided being spit on without pulling Mr. Hillebrand out of the vehicle, and thus that there was no legitimate law enforcement purpose served by his use of force. The Board noted several factors to support its finding. Deputy Hughes stopped the cruiser less than two minutes from the jail, where corrections officers could have taken Mr. Hillebrand out of the cruiser without the use of force. Deputy Hughes could have found something in the cruiser, such as a rain slicker, to place over the cage behind him and block any further spit from the rear of the vehicle. Once the prisoner was secure and in custody, Deputy Hughes' primary duty was to transport him safely to jail without exposing the prisoner, the law enforcement officers, or the public to the risk of further injury. By stopping the vehicle and opening the rear of the caged and locked police cruiser, Deputy Hughes exposed himself, his partner, both prisoners, and possibly the general public to an unnecessary risk of injury. Deputy Hughes' actions created the situation that resulted in the need to use force on Mr. Hillebrand, and those actions were not necessary to accomplish the primary police task of transporting Mr. Hillebrand safely to the jail without further incident or injury. In short, the Board found that Deputy Hughes used appropriate force for the situation, but found that he violated regulations by allowing the situation to develop in the first place. Sheriff's Office General Order 10-2 provides guidelines for imposition of discipline by an Administrative Review Board, including a point system based on the number and severity of violations. The violations found against Deputy Hughes resulted in a cumulative point total of 65 points: 50 points for the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners and 15 points for the violation of General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Sheriff's Office General Order 10-2 provides that the point total accumulated by Deputy Hughes allows for discipline ranging from a seven-day suspension to termination of employment. Deputy Hughes received the minimum seven-day suspension. Deputy Hughes appealed only the finding with regard to the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. Deputy Hughes did not contest the finding that he violated General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Deputy Hughes contended that he acted in self-defense to prevent Mr. Hillebrand from continuing to spit on him. This contention was illogical. By opening the rear of the vehicle and manhandling his prisoner, Deputy Hughes made it easier for Mr. Hillebrand to spit on him again. Further, the self-defense contention was beside the point, as the Sheriff's Office did not allege that Deputy Hughes had no right to protect himself. Rather, the Administrative Review Board found that Deputy Hughes chose the worst of several possible methods to prevent Mr. Hillebrand from spitting on him. The essential finding was that Deputy Hughes used poor judgment, not that he used excessive force. Deputy Hughes also contended that the Sheriff's Office was at fault for not equipping his cruiser with restraints designed to prevent prisoners from spitting. Whatever the value of such restraints, their absence did not prevent Deputy Hughes from improvising a protective device from the materials available in his cruiser. Finally, Deputy Hughes pointed to the fact that the Sheriff's office has no rule or regulation prohibiting a deputy from attempting to seat belt a prisoner in the rear of the vehicle to prevent him from spitting through the open portion of the cage. It defies reason to contend that the Sheriff's Office must develop a rule or regulation for every possible condition that may occur in the field, or that an experienced deputy may abandon common sense in the absence of a rule or regulation covering a situation in which he finds himself. The evidence presented at the hearing fully supported the findings of the Administrative Review Board and the penalty imposed upon Deputy Hughes for the violation of General Order 3- 1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Michael E. Hughes guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in the August 3, 2002, inter-office memorandum and upholding the suspension of Michael E. Hughes from his employment as a deputy sheriff with the Pinellas County Sheriff's Office for a period of seven days. DONE AND ENTERED this 28th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 1 Avenue North St. Petersburg, Florida 33701 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
The Issue Whether Petitioner's challenge to the failing grade he received on the February 28, 2007, State Officer Certification Examination for Correctional Officers should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner sat for the State Officer Certification Examination for Correctional Officers administered on February 28, 2007 (February 2007 Certification Examination). To attain a passing score on the February 2007 Certification Examination, candidates needed to answer 199 questions correctly. Petitioner did not attain a passing score. He received credit for answering 198 questions correctly, one shy of the 199 needed to pass the examination. One of the questions he was not given credit for answering correctly was Question 162. Question 162 was a clear and unambiguous multiple choice question with four possible answers to choose from ("a," "b," "c," or "d"). The correct answer to Question 162 was "d." Approximately 80 percent of the candidates who sat for the February 2007 Certification Examination gave this answer. The answer that Petitioner selected, "c," was incorrect. Had this answer contained the prefatory language, "basis for," or other words to same effect, it too would have been correct. Such language, however, was missing from "c," making it an incorrect choice.2 Question 162 has appeared on prior Certification Examinations. Over the years, it has been answered a total of 1,422 times, with answer "d" having been selected 1,192 of these occasions and answer "c" having been selected a mere 206 times. Because Petitioner selected an answer to Question 162 that was incorrect, he appropriately received no credit for his answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the February 2007 Certification Examination. DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 21st day of August, 2007.
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
