Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on February 11, 1983, and issued certificate number 19-82-502-08, which he still holds. For approximately the past eight years, Respondent has been employed by the Metro-Dade County Department of Corrections and Rehabilitation (Department). During the first six years of his employment with the Department, he held the position of Correctional Officer I. His duties as a Correctional Officer I included supervising crews of inmates performing lawn maintenance work on public grounds outside the correctional facility in which they were housed. One of Respondent's supervisors was Jerry Meese, the Director of the Department's Operations Division. On September 26, 1986, while returning to his office from a lunchtime excursion, Meese observed a Department truck used to transport inmate work crews parked outside a private residence. The truck's presence in the residential area aroused Meese's suspicion. He therefore stopped to investigate. He soon discovered that Respondent and some inmates were in the area. One of the inmates was found to have some chewing gum in his possession. The inmate told Meese that Respondent had given him money to purchase the gum at a nearby store. A short walking distance from where Meese had encountered the inmate was a bag containing seven containers of beer. The containers were cold to the touch. Meese went to the store to which the inmate had referred and spoke to the store clerk. The store clerk advised Meese that the inmate, a short time before, had bought the beer that Meese had found in the bag. Meese discussed the matter with Respondent. It appeared to Meese that Respondent's speech was slurred and that his eyes were red. Upon his return to the office, Meese was provided with statements from inmates supervised by Respondent in which the inmates indicated that they had drank beer and smoked marijuana with Respondent. Shortly thereafter Meese learned that the inmates had tested positive for drugs. The Department had a policy which required a correctional officer to submit to drug testing if there existed a reasonable suspicion that the officer was involved in the illicit use of drugs. Based upon what had occurred that afternoon, Meese justifiably believed that he had grounds to invoke this policy and he therefore directed Respondent to submit to a drug test. He gave Respondent until Monday, September 29, 1986, to take the test. On September 29, 1986, prior to submitting to the test, Respondent was interviewed by Robert Sobel, an investigator with the Department's Internal Affairs Unit. Respondent freely admitted to Sobel that he "smok[ed] marijuana on a regular basis" and that he "would like to enroll in a program to overcome this problem." Later that day, at 3:10 p.m., in compliance with Meese's directive, Respondent went to the Consulab facility at the Cedars Medical Center in Miami and gave a urine specimen. The sample was screened by the use of an enzyme immunoassay testing procedure. The screening test was performed twice. On both occasions, the sample tested presumptively positive for cocaine and marijuana. The sample was then subjected to confirmatory testing. The thin layer chromatography (TLC) method was used. When performed by a competent technologist, TLC testing is accurate 95 to 99 percent of the time. The two technologists who tested Respondent's urine sample using the TLC method were highly competent. Their tests, which were completed at about 4:50 p.m., revealed the presence of cocaine metabolites 1/ and cannabinoids (marijuana). 15. The tests were accurate. Respondent had knowingly used cocaine and marijuana on or about the date of the testing. Notwithstanding the results of the testing, Respondent was not terminated by the Department. Instead, he was suspended. As a condition of continued employment, he was required to participate in a drug rehabilitation program and to remain drug-free. Respondent has met these requirements to the satisfaction of the Department. Not only has Respondent remained in the employ of the Department, he how occupies the position of corporal, a supervisory position to which he was promoted approximately two years ago. His post-September, 1986, employment record reveals that he has taken full advantage of the opportunity given him by the Department to rehabilitate himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character" in violation of Section 943.1395(5), Florida Statutes, by virtue of his unlawful use of cocaine and marijuana on or about September 26, 1986; and (2) based upon such a finding, (a) suspend Respondent's certification for 30 days, (b) place Respondent on probation for a period of two years to commence upon the expiration of this 30-day suspension, and (c) include among the terms and conditions of his probation the requirements that Respondent submit to scheduled and monthly drug testing and that he agree to release the results of such testing to the Commission or its designee. DONE and ORDERED in Tallahassee, Leon County, Florida, this 30th day of May 1990. STUART M. LERNER 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 Administrative Hearings this 30th day of May 1990.
The Issue The issue is whether Respondent knowingly obtained or used, or endeavored to obtain or use, the property of another valued at $300 or more with the intent to temporarily or permanently deprive the owner of the right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the demeanor of the witnesses while testifying and other substantive and material evidence of record, the following findings of fact are made: At all times material to this cause, Respondent was a certified Correctional Officer, having been certified on or about April 2, 1991, and issued Correctional Officer Certification No. 92406. On October 8, 2000, Respondent, in the company of two other persons, Steven Smith and Henry Fox, went to a business named "Four Star Refinish" located at 898 County Road 621, Lake Placid, Florida. David Trobaugh is the owner of Four Star Refinish and the compressor at issue in this proceeding. The building housing Four Star Refinish had been largely destroyed by fire before October 8, 2000, and the compressor, valued at more than $300, was located outside the building, undamaged. On October 8, 2000, at the business site of Four Star Refinish, Respondent, Steven Smith, and Henry Fox, agreed to take the compressor and together removed the compressor from the premises and transported it to the residence of Steven Smith. On October 12, 2000, Respondent gave a statement to Robert Neale, Highlands County Sheriff's Department, admitting that he, Steven Smith, and Henry Fox loaded the compressor onto a trailer and together transported it to Steven Smith's residence. Respondent, after his admission, assisted Deputy Neale in recovering the compressor by contacting Steven Smith by telephone, who then provided the location of the compressor. At the location provided by Steven Smith, the compressor was located and recovered by Deputy Neale, identified by the owner, David Trobaugh, and returned to him. Respondent, with knowledge of the unlawful taking of the compressor, with knowledge of the parties who unlawfully removed the compressor, and with knowledge of the compressor's whereabouts, concealed his participation in the aiding and abetting in the commission of a felony by Steven Smith and Henry Fox, when initially approached by law enforcement. As a direct result of the foregone and on April 1, 2001, in the case of State v. Jerry E. Lambert, the State Attorney entered a nolle prosequi, in Highlands County Circuit Court Case No. CF00-00685A-XX, under which Respondent was charged with one count of Grand Theft in Excess of $300, with the stated ground for the nolle prosequi listed as "Case Referred to CDS (Citizen Dispute Settlement). An Agreement was reached and restitution and fees paid." Petitioner has proven by clear and convincing evidence that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner. Respondent's admitted participation in the commission of a felony offense evidenced his intentional failure to maintain good moral character and proves his failure to maintain qualifications required of a certified correctional officer. Respondent offered no mitigating evidence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's Correctional Officer Certification No. 92406. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2003. COPIES FURNISHED: Jerry E. Lambert 126 East Royal Palm Avenue Lake Placid, Florida 33852 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the actions charged in the Administrative Complaint in the case of Respondent Kenneth Manderville, (Mr. Manderville), demonstrate that he does not have the moral character to qualify as a correctional and law enforcement officer as provided in Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code.
Findings Of Fact Mr. Manderville holds correctional and law enforcement certificates issued by the Commission pursuant to the power vested in the Commission by Section 943.12(3). Mr. Manderville was employed as a deputy with the Putnam County Sheriff's Office for eight years, achieving the rank of sergeant. He was terminated for cause on October 11, 2000. Pursuant to Section 943.12(3), the Commission is empowered to certify and to revoke the certification of officers. Betty Prevatt (Mrs. Prevatt) is a resident of Palatka, Florida. On or about June 25, 2000, Mrs. Prevatt and her husband were involved in a domestic dispute. During the course of this dispute, her husband reached for his shotgun. As a result, Mrs. Prevatt fled her residence and ran down the adjacent highway. A helpful citizen rescued her by providing her with an automobile ride to the Putnam County Sheriff's Department. Later in the evening of June 25, 2000, at the Putnam County Sheriff's Department, Mrs. Prevatt came into contact with Sergeant Manderville, during the course of filing a domestic violence complaint with the Putnam County Sheriff's Office. Subsequently, Sergeant Manderville caused the arrest and incarceration of Mr. Prevatt. Thereafter, Sergeant Manderville gave Mrs. Prevatt a ride in his patrol car to her home. While at the Prevatt home, Mrs. Prevatt told Sergeant Manderville that she did not wish to spend the night in her home so he told her to return to the Sheriff's Department in her automobile. Mrs. Prevatt came to the Sheriff's Department, as instructed by Mr. Manderville, around 11:30 P.M. Mr. Manderville told her to follow him in her car. He led her to a house owned by Mr. Manderville's parents. They entered the house. Mr. Manderville was in uniform and on duty. Subsequently he removed his uniform and engaged in sexual intercourse with Mrs. Prevatt. Thereafter, he telephoned a woman's shelter and Mrs. Prevatt spent the night there. Subsequently Mrs. Prevatt called Mr. Manderville, on more than one occasion during the course of the next few days, and inquired as to the process required to extract her husband from the Putnam County Jail. Eventually Mr. Manderville told her that he would help her win the release of her husband, and ostensibly to facilitate that purpose, instructed her to meet him at the Kentucky Fried Chicken restaurant after sunset. She did as requested and he told her to return to his parents' house. She complied with his direction. Upon entering his parents' house, he insisted on having sexual intercourse again. She submitted. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Afterwards, she returned to the shelter in which she was then residing, which was located in St. Augustine. On a subsequent occasion, Mr. Manderville asked Mrs. Prevatt to meet him at the Sheriff's Department, allegedly for the purpose of finishing paperwork regarding Mr. Prevatt. In response, she met him as requested. Thereafter, he took her to an interview room, had sexual intercourse with her, withdrew, and ejaculated on the carpet. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Mrs. Prevatt's husband was released from jail a few days after his arrest but Mrs. Prevatt continued to live in the shelter. After a period of about two months, she went to the sheriff's office to retrieve her husband's shotgun. During a conversation at the Sheriff's Department, Mr. Manderville asked her to meet him after dark at the post office in Palatka. She did as asked. Mr. Manderville asked her to get in his patrol car and he then took her to his house in Mannville. After arriving at Mr. Manderville's house in Mannville, he required her to disrobe, had intercourse with her twice, and took pictures of her bent over the hood of his patrol car, while nude. All of this occurred while he was on duty and, except during the sexual activity, he was attired in his uniform. This was the last time that they had sexual contact. Almost three months later, Mrs. Prevatt again established a relationship with her husband. Mr. Prevatt began to inquire about Mrs. Prevatt's relationship with Mr. Manderville and she revealed what had occurred. On September 28, 2000, she gave a detailed report of the matter to Lieutenant Roger W. Sassaman and Detective Walter Perkins of the internal affairs section of the Putnam County Sheriff's Department. On October 11, 2000, Mr. Manderville was discharged from his employment with the Putnam County Sheriff's Department. Mr. Manderville asserted that Mrs. Prevatt's statements with regard to sexual activity were fabrications. He claimed that Mrs. Prevatt was infatuated with him. He asserted that she called him on many occasions in furtherance of what she wanted to be a continuing romantic relationship but that he had resisted her. Mrs. Prevatt is a woman whose life has been beset with problems. At the time of the hearing she had endured an abusive marital situation for eighteen years. She has experienced problems maintaining steady employment and she has abused prescription drugs. Nevertheless, it is concluded that Mrs. Prevatt's version of the story was, in pertinent parts, true, and that Mr. Manderville's version lacks credibility. In arriving at that conclusion, the following matters were considered: Mrs. Prevatt was able to describe with particularity the interior of Mr. Manderville's parents' house and the interior of Mr. Manderville's residence. If she had not been taken to these places, she would not have been able to glean these details. Moreover, Mrs. Debbie Manderville, who married Mr. Manderville in 1996, in her attempt to discredit Mrs. Prevatt's knowledge of the interior of the two houses, succeeded only in demonstrating that Mrs. Prevatt did have an accurate recollection of the interiors. Mrs. Prevatt was aware that Mr. Manderville was married to a nurse because she heard him call her at the local hospital from Mrs. Manderville's home. This call was undoubtedly made for the purpose of insuring that Mrs. Manderville would not intrude while he was present there with Mrs. Prevatt. Mrs. Prevatt knew that Mr. Manderville's entire body, except for the pubic area, was cleanly shaved, at times pertinent. Mr. Manderville confirmed this in his testimony. Had she not seen him in the nude, she would not have been aware of this. Mrs. Prevatt was able to point out a spot on the interview room carpet where she claimed semen residue would be found. Mr. Manderville, when questioned about this at the hearing, did not deny that semen residue was found at that exact spot she identified. He stated, however, that it was produced not from illicit activity with Mrs. Prevatt, but through self- abuse. His version regarding the presence of the semen was unbelievable. Upon consideration of all of the facts and circumstances elicited at the hearing, it is found by clear and convincing evidence that on four occasions Mr. Manderville had sexual intercourse with Mrs. Prevatt while he was on duty, when she was emotionally distraught, and under circumstances where he used his power as a law enforcement officer to take advantage of her in a stressful situation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be issued revoking the certification of Mr. Manderville as a law enforcement and correctional officer. DONE AND ORDERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003. COPIES FURNISHED: Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
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
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
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 as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent's temporary directive, which requires probation officers to request and obtain supervisor approval on a case-by-case basis before incurring travel expenses for certain field visits, meets the definition of a "rule" in section 120.52(16), Florida Statutes (2011),1/ which should have been promulgated as such.
Findings Of Fact Respondent is the state agency with "supervisory and protective care, custody, and control of the inmates, buildings, grounds, and property, and all other matters pertaining to [specified correctional facilities and programs] for the imprisonment, correction, and rehabilitation of adult offenders[.]" § 945.025(1), Fla. Stat. (setting forth Respondent's jurisdiction). By far, Respondent's resources, including personnel, are primarily devoted to Respondent's responsibilities over correctional facilities and programs. There are approximately 17,000 certified officers on the correctional institution side. Respondent also is the state agency responsible for supervising offenders who are granted conditional release from incarceration or who are granted parole by the Parole Commission (chapter 947, Florida Statutes), as well as the state agency responsible for supervising probationers placed on probation (or in community control, known commonly as house arrest) by a court (chapter 948, Florida Statutes). Collectively, persons who have been conditionally released, parolees, and probationers will be referred to as "offenders." A relatively small percentage of Respondent's resources, including personnel, are devoted to the supervision of offenders. There are approximately 2,100 certified parole and probation officers providing community supervision. Organizationally, Respondent's supervisory functions fall under the umbrella of Community Corrections. The supervision of offenders statewide is divided into a northern and southern region, each covering ten of the state's 20 judicial circuits. Each region is headed by a regional director, who oversees the supervision of offenders within the region's ten judicial circuits. Each of the 20 judicial circuits has a circuit administrator. Each circuit also used to have a deputy circuit administrator, but that position was eliminated in 2009. Reporting to the circuit administrators are probation supervisors, who supervise and coordinate the activities of individual probation officers and probation officer specialists. Offenders are assigned to certified probation officers and probation officer specialists, who directly carry out the supervisory functions. See § 948.01(1)(a), Fla. Stat. (an offender on probation or community control is to be supervised by an officer meeting the qualifications in section 943.13, Fla. Stat.). A probation officer specialist is a probation officer with a certain level of experience to whom the offenders with the most serious criminal records are assigned. Unless otherwise specified, the term probation officer will be used, in the broad sense, to include both probation officers and the more experienced probation officer specialists. In carrying out its community supervisory functions, Respondent's goals are all of the following: to ensure compliance with the conditions of supervision imposed by the court or by the Parole Commission; to ensure public safety; to foster rehabilitation of the offender; and to reduce or eliminate future victimization. Probationers may be placed on probation, in lieu of incarceration, or as part of a split sentence that includes incarceration followed by probation. §§ 948.011 and 948.012. The starting place for supervision of a probationer is the court's order of supervision, which specifies the terms and conditions of probation. Respondent is charged with preparing a form order of supervision for the courts to use. § 948.01(1)(b). The form order prepared by Respondent and used by the courts reflects the standard conditions of probation which may be imposed by the courts, enumerated in section 948.03. The form order also provides options for the court to exercise its authority and discretion to impose special terms and conditions. See, e.g., §§ 948.031 through 948.039. The standard conditions of probation that may be imposed by a court in its order of supervision are broadly worded and general in nature and include the following: Report to the probation and parole supervisors as directed. Permit such supervisors to visit him in his or her home or elsewhere. Work faithfully at suitable employment insofar as possible. Remain within a specified place. Live without violating the law. The statutes and standard terms of probation do not dictate or specify how, precisely, Respondent is to carry out its supervisory function in monitoring offenders to serve the goal of ensuring compliance with these terms. The concept of "supervision" is not quantified, such as by specifying how often an offender must report to his or her probation officer or whether and how often probation officers may or will visit an offender in his or her home or elsewhere. A court's order of supervision could theoretically provide a condition specifying that a probationer must go to his or her probation officer's office twice a month or five times a month. However, the one sample order of supervision entered in evidence in this case did not impose any such terms quantifying the number of office visits or other visits that the unidentified probationer had to make with his or her probation officer. With respect to "supervision," section 948.12 provides a distinction for violent offenders who are on probation following incarceration by providing that these offenders "shall be provided intensive supervision by experienced probation officers." However, just as the statutes do not purport to specify or quantify what is meant by "supervision," there is no statutory specification for what is meant by "intensive supervision." Respondent has had, apparently as far back as 2002, internal procedures in place to provide detailed processes for probation officers to follow in carrying out their duty to supervise offenders assigned to them. These procedures are published in a 41-page document called Procedure 302.303, which Respondent considers a "restricted access" document for internal use only. One subject addressed in Procedure 302.303 is an offender classification system. The current classification system was designed in-house and then validated by the Florida State University School of Criminology. The system considers a number of variables and is used by Respondent as a way to group offenders in an effort to ensure that supervision is provided at a level commensurate with the danger or risk the offender represents to the community. This offender classification system, which is not promulgated as a rule, is not the subject of Petitioner's challenge. Procedure 302.303 also addresses the subject of contacts expected to be made by a probation officer with individual offenders assigned to the officer. In general terms, Procedure 302.303 specifies minimum contacts, by type and frequency, that probation officers are expected to make, or try to make, for each of their assigned offenders. The types of contacts include office visits, meaning the offender comes into the probation officer's office for a meeting; other kinds of visits, scheduled or unscheduled, when the probation officer travels outside the office to visit or attempt to visit the offender in his home, in his place of employment, or another place; and field visits with third parties, when the probation officer travels outside the office to visit or attempt to visit the offender's employer, treatment providers, family, neighbors, or other third persons who might have information about the offender. Different minimum contact requirements, by type and frequency, are provided for each of the different offender risk classification categories in Procedure 302.303. The minimum contact standards are performance standards that apply to probation officers; without the minimum contact requirements, some probation officers might do less than the minimum. These minimum contact standards, which have not been promulgated as a rule, are also not the subject of Petitioner's challenge. Instead, Petitioner's challenge is directed to a recent temporary directive by Respondent that suspended some aspects of the (unpromulgated) minimum contact standards in Procedure 302.303. In lieu of these minimum contact standards, Respondent's directive provides that probation officers need to request and receive permission of their supervisors on a case-by- case basis to incur travel expenses for certain field visits. As a related part of the directive, supervisors are given discretion to approve travel expenses for any field visit if there is reason to believe there may be a violation of a condition of supervision or if there is reason to believe that there is a threat to public safety. The challenged directives were first communicated verbally on February 29, 2012, in a telephone conference call between Jenny Nimer, assistant secretary of Community Corrections, and the Community Corrections regional directors, and then reduced to writing in the following memorandum dated March 2, 2012, on the subject of "Reduced Travel" (Reduced Travel Memo) from Assistant Secretary Nimer to Community Corrections regional directors and circuit administrators: On 2/29/12 directives were provided for adjustments to be made on some non-critical supervision activities. As these directives are temporary and related to "restricted" policy areas they were given verbally; existing written policy will not be changed. Our goal is to reduce the travel budget by focusing on mission critical activities without compromising public safety. Travel related to core operational duties will continue; however all travel will be reviewed for efficiency. NO adjustments have been made to travel that involves investigation of known or suspected violations, violation proceedings/subpoenas, investigations or instruction of offenders in correctional facilities. Adjustments are focused on reduction of department established minimum contact standards and administrative duties. There is an urgent need to reduce travel costs for the remainder of the fiscal year; however public safety is the utmost priority and supervisors maintain the discretion to approve any travel that is needed to accomplish officer safety and protection of the community. For the months that adjustments are in place (March, April, May and June) officers will annotate electronic field notes for offenders requiring field contacts during the month, as follows: CN--"Contact Standards Adjusted". Alternative methods to verify (and re-verify) residence and employment during this period, including making telephone calls to the landlord and employer or instructing the offender to provide bills and paychecks to show proof of residence and employment will be utilized. Contact codes for purposes of electronic case notes for residence and employment verification will be HV, EN, or EV and text should indicate the alternative method utilized for verification. Planned Compliance Initiatives will continue; partnerships established with local law enforcement remain essential to enhance surveillance and contacts made in the community. These contacts should always be documented in case notes. Circuit Administrators are directed to reach out to judiciary, state attorney and law enforcement to ensure that they are aware of the limited scope of this reduction and that contacts required to ensure offender supervision and/or threats to public safety will not be compromised. Thank you for your cooperation during this difficult time. The Reduced Travel Memo was distributed to probation officers as the means by which Respondent communicated to its probation officers that they would not be expected to comply with all of the minimum contact requirements set forth in Procedure 302.303 between March 1, 2012, through the end of the fiscal year, June 30, 2012. The expectation was, at the time of the challenged statement, that this cost-saving measure was temporary and that the (unpromulgated) minimum contact requirements in Procedure 302.303 would resume as of the new fiscal year beginning July 1, 2012. As of the final hearing on June 6, 2012, Respondent's expectation was unchanged. The announced temporary replacement of minimum contact requirements based on risk category with a procedure for supervisor review and approval of field contacts remained just that--temporary--and the expectation was that the minimum contact standards set forth in Procedure 302.303 would resume for the fiscal year beginning July 1, 2012. Petitioner hinted at, but offered no evidence to prove the notion that Respondent did not really intend to resume the minimum contact standards in the fiscal year beginning July 1, 2012.4/ The Reduced Travel Memo and a March 2, 2012, letter from Secretary Kenneth S. Tucker (Tucker Letter), represent the challenged agency statements in that these two documents memorialize the temporary directive.5/ As explained in the Tucker Letter: Due to a 79 million dollar deficit, the Department has had to make temporary modifications to field contact requirements in order to reduce travel expenditures by probation officers. . . . Our probation officers will continue to make field contacts with sex offenders and community control offenders in order to closely monitor sex offender conditions and/or house arrest requirements. Probation officers will continue to monitor other supervised offenders' compliance with conditions of supervision and probationers will still be required to meet monthly with their probation officer at the office. In addition, probation officers will make field contacts in the community as necessary to investigate non-compliance or possible violations. Probation officers will also continue to participate with law enforcement in Planned Compliance Initiative (PCI's) in the community. Probation officers will use this opportunity to spend more time with offenders in the office or on the telephone, assisting with job referrals or other resources and services needed. Community Corrections undertook an analysis of its budget in an effort to identify expenditures where cost savings might be realized to help reduce the budget deficit. The three significant budget categories of expenditures were salaries, leases, and expenses. There had been a hiring freeze in place for some time already, and so an effort was made to not cut personnel to save salary costs. There also had been a concerted effort to reduce lease costs by consolidating offices to eliminate some leases. The viable short-term option to cut costs for the remainder of the fiscal year was in the expense category, which was predominately travel reimbursement. It was determined that, over the year, Community Corrections was averaging between $250,000 and $300,000 per month in travel reimbursement. Some travel reimbursement had already been reduced before the temporary directive challenged here. For example, Community Corrections personnel, including probation officers, might travel to participate in training programs. However, training had already been greatly limited. Some travel reimbursement could not be reduced, such as reimbursing probation officers for necessary travel for court appearances. In these instances, efforts were made to use state cars and to encourage carpooling, if possible. Community Corrections assessed the number of field contacts and attempted contacts that were being made by probation officers to comply with Respondent's minimum contact standards and the travel reimbursement associated with them (i.e., the contacts). Respondent estimated that its temporary directive, challenged here, would reduce travel costs by $150,000 per month for each of the four months in which the directives would be in place. In total, Respondent expected to save $600,000. Respondent's actual experience following issuance of the Reduced Travel Memo and Tucker Letter shows that Respondent's estimates were on target. In February 2012--the last month before the temporary suspension of some of the minimum contact standards--travel reimbursement totaled $277,000. After switching to a procedure of case-by-case probation officer request and supervisor review to approve field visits, travel reimbursement was down to $99,000 in March 2012, a savings of $187,000, compared to February. In April 2012, travel reimbursement dropped to $80,000. The evidence established that the discretion afforded probation supervisors in the Reduced Travel Memo is true discretion vested in supervisors to review requests and act on a case-by-case basis to approve field visits. That discretion has been exercised on numerous occasions to authorize a field contact. There was no evidence of any probation officer having submitted a request to make a field visit to investigate a possible violation of a probation condition or where there was a public safety issue that was not approved by his or her supervisor. To the contrary, the evidence established that requests are being made and leeway is being provided to probation officers to travel, if they can articulate a reason for doing so. However, for one or two probation officers who do not accept that they must request approval and justify their travel expense on a case-by-case basis and who simply ask for block reinstatement of the minimum contact standards, without articulating any reason why field visits are needed for particular offenders, those requests have been denied. As the Reduced Travel Memo and Tucker Letter suggest, there are other tools available to probation officers besides incurring the expense of field visits, which are often equally effective to accomplish the goal. For example, a field visit to an offender's employer is certainly one way to verify employment and to verify the offender's attendance, but telephone calls may well suffice to obtain the same information at much lower costs. There are also other ways to attempt to verify residence besides a personal home visit. An offender can be required to present documentation, such as a utility bill, rental agreement, or pay stub showing the offender's address. An offender can be made to come in for office visits more frequently than once a month. A probation officer can telephone the offender frequently, and the voice mail message or background noise may give some reason to believe there is a need for a field visit. A probation officer can call family members and neighbors to check on an offender and to verify information. A probation officer can enlist the help of a local law enforcement officer to check on an offender. In short, for the period of Respondent's urgent need to reduce costs, probation officers have been asked to work a little harder and more creatively from their desks, while reserving travel expenses for field visits to the cases where they have some reason to think a field visit is needed. Petitioner presented the testimony of one probation officer specialist, Kimberly Schultz. As a specialist, this officer handles a case load disproportionately made up of sex offender probationers (for whom the temporary directives did not suspend minimum contact standards) and the next category down on the risk scale--maximum offenders. Officer Schultz testified that she believes that public safety is best served by the old minimum contact standards in (unpromulgated) Policy 302.303. Officer Schultz suggested, but failed to prove, that public safety is compromised by the temporary directive. Under the temporary directive, Officer Schultz has only requested approval once from her supervisor to make a field contact based on a suspicion she developed that the offender may be in violation of his probation requirements. That single request was approved. Officer Schultz did not identify any instance in which public safety was jeopardized because a field contact was not allowed. Instead, Officer Schultz spoke to the increased possibility that allowing more travel to make surprise visits to offenders' homes or places of employment would reveal suspicious behavior or incorrect information. Certainly, Officer Schultz has the experience to draw on to offer the view that, in a general sense, increased field visits would serve to increase the possibility of discovering probation violations or other issues with offenders. In an ideal situation with unlimited resources, a probation officer following every move an offender makes could well come to find that the offender is not "liv[ing} without violating the law," as required in a standard probation condition. However, such an ideal situation obviously does not exist. Instead, Respondent has taken action to manage its limited resources. The evidence did not show that Respondent's temporary directive has threatened public safety. Officer Schultz attempted to suggest that, in the single instance when she requested a field contact, she would have discovered sooner that the offender was not living where he said he was, if she had made the minimum field contacts under Procedure 302.303. Her testimony did not bear that out. Officer Schultz testified that an offender assigned to her in March 2012, came in for the required office visits in March and in April, and he filled out the required monthly reports giving his address, telephone number, and other contact information. When the offender came in for his May office visit, the offender was supposed to stay for a drug test, but he left. Officer Schultz tried to call the offender at the number he had provided to check to see if he had misunderstood. That is when she learned that the phone number the offender had given her "wasn't a good number." Officer Schultz requested and was given approval to incur travel to investigate and learned, then, that the offender was not living where he said he was. While Officer Schultz contends that, in the above example, a field visit to verify the offender's address would have identified the problem sooner, Officer Schultz admitted that she had not previously tried to call the offender. Indeed, she said that she never calls her offenders on their cell phones. Thus, instead of incurring travel expense for a field visit, Officer Schultz could have attempted to verify the offender's office report immediately in March through other ways, such as calling the phone number provided and learning much sooner that the offender had provided a phone number that was not good. Officer Schultz might have checked for a home phone number associated with the address the offender gave; she learned when she went there that the offender's cousin lived there, and the cousin volunteered that the offender did not live there. Officer Schultz could have required this offender, and could require all of her offenders, to come into the office multiple times per month. She could have required this offender to bring in a utility bill for his residence, whether in his name or someone else's name. Had Officer Schultz tried alternative verification means, she may have been able to contact the cousin sooner. It was evident from Officer Schultz' testimony that she has become accustomed to operating under the guidance provided in unpromulgated Procedure 302.303 and does not like being asked temporarily to work harder and more creatively from her office to find other ways to conduct surveillance and monitor offenders that do not cost Respondent as much in travel expenses as her travel in the field used to. It seemed that rather than trying to replace the field visit time with alternative investigation techniques, Officer Schultz has done little to fill the gap with constructive methods to monitor her offenders using alternative means. Indeed, when Officer Schultz was asked how she was making use of her new-found office time since she is spending less time in the field, her first response was, "I'm organizing my closed files." Officer Schultz expressed concern that a probation officer could be subject to discipline if he or she were to not follow the temporary directive. However, there was no evidence that any probation officer had refused to request supervisor review and approval for a field visit, much less that discipline resulted. Officer Shultz did not represent that she had refused to follow the temporary directive or that she intended to in the few weeks remaining in the fiscal year. Petitioner's representative testified that the temporary directive harms its 2,100 certified probation officer members, although the directive does not apply to the other approximately 17,000 certified members who serve on the correctional institution side of Respondent. Thus, the temporary directive applies to only about 12 percent of Petitioner's members. Nonetheless, Petitioner's representative asserted that its members are affected by the temporary directive because they are all members of communities with a concern for public safety.
The Issue Whether the Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts." Shortly after beginning his association with Ms. Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on September 21, 2002. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter. If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good." More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.
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 finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty. S DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-9675 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky, P.A. 438 East Government Street Pensacola, Florida 32502
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
