The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, 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 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission 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
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of December, 2004.
The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
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 and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted 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(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a correctional officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Dennis W. Zeighler, holder of Corrections Certificate Number 145432 issued March 25, 1994. Respondent was employed as a sworn Corrections Officer with the Hamilton Correctional Institution (HCI) from March 25, 1994 to September 22, 1994. During his employment with HCI, Respondent came to know Luis Nieves, an inmate at the institution. Nieves offered to sell Respondent a gold Seiko watch for $15. Respondent was uncertain as to whether he should buy the watch, but accepted it from Nieves and placed it in his desk drawer at HCI. Later, on the way home, Respondent mailed a money order for $15 to Nieves in an envelope bearing the return address of Nieves’ sister-in-law. Following discussion that evening with his brother, also a correctional officer, Respondent became concerned about the transaction. Respondent consulted his copy of the Department of Corrections Policy Manual and realized he wanted no part of the transaction. Upon his return to work the next morning, Respondent removed the watch from his desk and returned it to inmate Nieves. Respondent told Nieves that the transaction was "not right" and that he, Respondent, did not want to lose a job that he loved. Respondent also told Nieves to keep the money.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of unprofessional conduct and placing his certification on probationary status upon such reasonable conditions and for such reasonable period of time as shall be determined appropriate by The Criminal Justice Standards and Training Commission. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dennis W. Zeighler 1301 Campbell Street Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
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 At issue in this proceeding is whether respondent committed the offense charged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, respondent, Frank L. Hiler, was employed as a correctional officer at the Martin Correctional Institution (MCI). Although no direct proof was offered on the issue, it is inferred that, since respondent held such a position, he was appropriately certified by the Criminal Justice Standards and Training Commission. In April 1989, the Florida Department of Law Enforcement (FDLE), at the request of the Department of Corrections (DOC), commenced an investigation to address allegations that narcotics were being smuggled into MCI. During the course of such investigation, information was developed which implicated respondent in such illegal activity. Pertinent to this case, the proof demonstrates that in June 1989, respondent, on behalf of an inmate, picked up a package containing two ounces of cannabis, commonly known as marijuana, and one or two ounces of cocaine from the inmate's wife in Miami, Florida, for delivery to the inmate at MCI. At the time respondent took possession of the narcotics he was dressed in the uniform of a correctional officer and was driving a van with the DOC logo on the side. Such narcotics were not, however, delivered to the inmate because of events that were to have occurred a day or so later. Acting on a tip that respondent might be attempting to smuggle narcotics into MCI, FDLE stopped the vehicle in which he was riding outside the complex and conducted a search. Such search uncovered a "small quantity" of marijuana in the vehicle. 1/ Respondent was then offered the opportunity to give a urine sample to test for narcotics, which he declined, but offered to do so at a later date. Respondent did not, however, return to MCI, and his employment was terminated on June 28, 1989, premised on job abandonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner render a final order revoking respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December 1992.
