The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
Findings Of Fact On April 24, 1987, the Respondent received official confirmation that he had been hired as a Correctional Probation Officer I in the Petitioner's Fort Myers office, effective May 8, 1987. The Respondent had been previously employed as a probation officer in Virginia from September of 1977 until December of 1983. The Respondent went to the Petitioner's Fort Myers office to complete some preliminary paperwork before he began work. On May 5, 1987, the Respondent signed a Statement of Understanding. The document requires the reader to acknowledge that he has read, and fully understands, Section 943.16, Florida Statutes. The statute, which was provided to the reader, requires a trainee who attends an approved criminal justice training program to reimburse the agency for the training costs if he does not remain with the agency for a one-year period. During his employment, the Respondent attended an approved basic recruit training program at the agency's expense. Prior to his attendance, the Respondent requested that his previous training program credits be brought before the Criminal Justice Standards and Training Commission so that a waiver could be obtained to exempt him from the training program. The Petitioner did not seek an exemption from the training program for the Respondent. As a result, the Respondent attended the program at the expense of the agency in order to obtain certification as a correctional probation officer in Florida. Less than one year after his employment began, the Respondent resigned from the Department of Corrections. On November 28, 1987, the Petitioner demanded reimbursement in the amount of three hundred dollars from the Respondent for the training program. The Respondent has refused to pay the three hundred dollars as he has a different interpretation of the statute which gives the Petitioner the authority to seek reimbursement. The Respondent contends that he was not a "trainee" as defined by the statute. He further asserts that the agency had the opportunity to seek an exemption from the program for Respondent. When the agency chose to send an experienced probation officer to a training program that could have been waived, it did so without right to reimbursement.
The Issue The issue is whether Petitioner is entitled to an equivalency-of-training exemption from law enforcement officer basic recruit training.
Findings Of Fact Petitioner is presently employed as a transit security officer on the Miami Metro-Rail. Respondent certified Petitioner as a law enforcement officer on August 23, 1981. However, his last day of certified employment, which was with the Dania Police Department, was July 27, 1987. Petitioner has taken no law enforcement classes since 1987. As part of the process by which he could obtain re- certification as a law enforcement officer, Petitioner tried to enroll in a 92-hour class in May 2003 at the Institute of Public Safety at Broward Community College. The 92-hour classes offered at Broward Community College fill up almost immediately after they are announced. Petitioner eventually was able to enroll for a 92-hour class at Broward Community College that started November 9, 2003. Enrollment in the 92-hour class requires Petitioner to complete basic-recruit training or obtain an exemption from such a requirement due to the completion of comparable training in another jurisdiction. Petitioner thus submitted an equivalency- of-training form (Form CJSTC 76), by which he sought an exemption from the requirement of basic-recruit training. By letter dated October 28, 2003, Respondent advised Petitioner that he was not eligible for the equivalency-of- training exemption because of a break of more than eight years in relevant employment. The letter advises that recent legislation, which had been signed into law on July 11, 2003, prohibited the recognition of an exemption after an eight-year break in employment. Petitioner has failed to establish any basis for estoppel. No one ever provided him with any misinformation whatsoever, nor, of course, did Petitioner rely on any such misinformation. Nothing precluded Petitioner from taking the 92-hour course at a location other than Broward Community College; evidently, for personal convenience, Petitioner tried to enroll for the course offered only at Broward Community College. Nothing in the record indicates if the 92-hour courses offered at other locations were as difficult to obtain. And, of course, nothing prevented Petitioner from trying to enroll in the 92-hour course more than a couple of months before the new legislation became effective.
Recommendation It is RECOMMENDED that the Department of Law Enforcement enter a final order rejecting Petitioner's request for an equivalency- of-training exemption from basic-recruit training due to the break in relevant employment of more than eight years. DONE AND ENTERED this 10th day of February, 2004, in Tallahassee, Leon County, Florida. S _____ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 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 Department of Law Enforcement Post Office Bo 1489 Tallahassee, Florida 32302 Debi George-Alten Post Office Box 771105 Coral Springs, Florida 33071 Brian Hirsch 5156 Northeast 6th Avenue #216 Fort Lauderdale, Florida 33334 Grace A. Jaye Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a) and (7), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a female, African-American. Petitioner was first employed by the Department from June 8, 1990 through October 10, 1990. Petitioner notified the Department by letter dated October 5, 1990, that she was resigning her position with the Department effective October 11, 1990. Subsequently, Petitioner applied for a position as correctional officer with the Department on April 3, 1998, and again on October 23, 1998, but was not hired on either of these occasions. Petitioner filed a Charge of Discrimination with the Commission on February 3, 1999, alleging that the Department had discriminated against her by denying her employment while hiring less experienced white correctional officers and that the Department had denied her employment in retaliation for her participation in the USA Case against the Department. There is sufficient evidence to show that Petitioner was a member of the class action suit referred to as the USA Case. On September 8, 1999, Petitioner again applied for a position as a correctional officer with the Department and was hired as a correctional officer with the Department on November 15, 1999. However, Petitioner abruptly resigned that position on January 12, 2000, giving unfair treatment as the basis for her resignation. Petitioner's testimony, which is credible, was that sometime in 2000 she applied for a position as a correctional officer with the Department by sending an application to the Tampa Service Center (an administrative branch of the Department) and that the Tampa Service Center requested that she take a pre-employment drug test and physical. Petitioner testified that since the Department requested that she take the pre-employment drug test and physical it was incumbent upon the Department to offer her the position. Petitioner failed to present sufficient evidence to show that the Department's policies required that she be offered a position once she was asked to submit to a pre-employment physical and drug test. Offers of employment by the Department are conditional only and are contingent upon a satisfactory background check. However, before any job offer was extended to Petitioner, the Tampa Service Center closed down and its records were forwarded to the Orlando Service Center (another administrative branch of the Department). Subsequently, Petitioner contacted the Orlando Service Center concerning her application. The Orlando Service Center was unable to locate any application from Petitioner or any data that could have been electronically stored. Nevertheless, sometime during the latter part of 2000, Petitioner was allowed to resubmit her application to the Orlando Service Center and was considered for a position. The Orlando Service Center determined that Petitioner failed the required background check based on Petitioner's short tenures on two previous employment occasions followed by abrupt resignations. Petitioner's application for employment was rejected on this basis. Petitioner presented evidence that an employee of the Department, Scott MacMeeken had resigned on at least two occasions and had been rehired. However, Petitioner failed to present any evidence as to MacMeeken's race or whether MacMeeken was equally or less qualified than Petitioner. Likewise, Petitioner failed to present sufficient evidence to show that white applicants for the positions which Petitioner had applied for but was not hired, were equally or less qualified than Petitioner. Petitioner failed to present sufficient evidence to show that, during the period of time in question, the Department hired less experienced white correctional officers over equally qualified or more qualified non-white correctional officers, or that the Department, in its hiring process, during this period of time, gave preference to white applicants for correctional officer positions over non-white applicants for correctional officer positions. Petitioner failed to present sufficient evidence to show that either her race, African-American, or her participation in any prior law suits, specifically the USA Case, or the filing of the Complaint with the Commission formed the basis for the Department's rejection of her applications in 1998 or 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 11th day of March, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gloria J. Browdy 12042 Villa Road Spring Hill, Florida 34609 WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2002. Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed an act or acts of age discrimination against Petitioner by not selecting him for promotion to sergeant with the Santa Rosa County Sheriff's Office.
Findings Of Fact Petitioner, Steven L. Boles, was employed at the Santa Rosa County Sheriff's Office in April 2001 as a deputy sheriff. Petitioner's date of birth is June 15, 1958, making him approximately 47-48 years old at all times related to the promotion issues, which are the subject of this proceeding. Petitioner completed 34 college classes while a deputy sheriff and attained a Bachelor's Degree from Troy State University. He was continuing his education towards a Master's Degree during the promotion period at issue. Petitioner had over 20 years' experience in the United States Air Force, during which his duties included managing a 24-person flight, supervising, planning, administering, and executed law enforcement and security training for a 270-person unit. The Florida Department of Law Enforcement recognized Petitioner's qualifications as being equivalent to those required by the State of Florida for certified law enforcement officers. During Petitioner's time as a deputy sheriff, he worked one position besides his road patrol duties. In 2003, he transferred to a property detective position where he served for almost a year. When he did not receive training that he deemed necessary to better perform his job, he transferred back to his road patrol position. Petitioner was certified as an all-terrain vehicle ("ATV") instructor in April 2006. Petitioner did not serve in a supervisory capacity while employed by Respondent. Under Sheriff Wendell Hall's administration, the promotional process for sergeant and lieutenant was established in General Order D-017. Applicants were ranked on an eligibility list based upon their scoring for specific criteria: advanced training courses, formal education, seniority, supervisory experience, written examinations, and an oral review board. Sheriff Hall promoted from the top of the list in order of ranking. The Fraternal Order of Police ("FOP") is the bargaining agent for deputy sheriffs. During collective bargaining negotiations in 2005, the FOP asked Sheriff Hall to change the promotional process to provide greater flexibility in promotions. The FOP believes that the top-ranked applicant is not necessarily the best candidate for an available position. The sheriff and the FOP executed a collective bargaining agreement ("CBA") in 2005 to implement changes in the promotional process that would afford more flexibility. Pursuant to Article 9 of the CBA, the parties agreed that General Order D-017 would be utilized in promotions. To effect the changes requested by the FOP, General Order D-017 was revised in December 2005. The new policy continued to provide that applicants would be ranked based upon scoring for specific criteria, but added field training officer experience ("FTO") as a new category to be scored. Additionally, the policy provided that the division captains and department major would review the promotion roster and provide a written recommendation to the sheriff for promotion of candidates. The sheriff would be provided with the top five names for one vacancy and one additional name for each additional vacancy. The new policy for promotion was provided to the FOP for review prior to its enactment. Pursuant to the CBA, the FOP could request impact bargaining within ten days of receipt of the policy. Because the FOP did not object to the policy, it became effective on December 26, 2005. The revised policy, General Order D-017, was provided to all members of Respondent, including Petitioner. Petitioner was aware that the process had been changed to permit the division captains and the department major to make written recommendations for promotion. Petitioner received a memorandum from Sheriff Hall on February 17, 2006, informing him of his eligibility to sit for the written promotion examination on March 22, 2006. Petitioner learned in that memorandum that credit for training courses and formal education would not be given for anything that had not occurred and was not present in the training office on or before March 10, 2006. When vacancies for sergeant and lieutenant became available in 2006, the promotional process followed the revised policy. Points were allocated to the applicants under the revised criteria, and the top 20 candidates were ranked. Major Steve Collier and Captains Jack Onkka and Jim Spencer met on May 26, 2006, pursuant to the newly-adopted policy, to review the applicants and make promotion recommendations to the sheriff. Because there were six vacancies for sergeant, the top 10 names on the roster were reviewed. Petitioner was ranked number five on the roster. Major Collier and Captains Onkka and Spencer concluded that the primary consideration for the recommendations for sergeant and lieutenant would be the motivation and initiative displayed by the applicants while employed at the Sheriff's Office. Believing that these qualities demonstrate the foundation of leadership, Collier, Onkka, and Spencer discussed each of the applicants to determine who best exemplified these characteristics. Collier, Onkka, and Spencer recommended six applicants who were ranked in the top 10 of the promotional roster: George Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry Salter, and Todd Reaves. Prior to the review by Collier, Onkka, and Spencer, three of these deputies were ranked higher in the roster than Petitioner and three of them were ranked lower. The reviewers selected these six deputies for promotion to sergeant because each had undertaken an assignment outside his normal duties or otherwise had distinguished himself in a manner that set him apart from the other candidates. George Hawkins, ranked number one on the roster, was recommended as a result of his field officer training experience. Further, he performed as an acting supervisor when the shift sergeant was absent, which the reviewers deemed significant. Field officer training was particularly valued by the reviewers because it required the deputy to serve as a front line supervisor for trainees as well as an instructor and mentor. Joseph Dunne also had performed field officer training and consistently volunteered for special operations projects that were after hours. William Dunsford, although not a FTO, was a member of the hostage negotiation team and, pursuant to this assignment, was on-call 24 hours a day, seven days a week. Similar to Dunne, Dunsford volunteered for special operations after hours. He particularly impressed Major Collier with noteworthy arrests and for his high level of professionalism and motivation. Wayne Enterkin was recommended as a result of his field officer training experience and his initiation of the drug court officers program, which involved juvenile offenders. He particularly distinguished himself in the drug court program. Jerry Salter was recommended as a result of field officer training experience and his assignment to the special weapons and tactics ("SWAT") team. As in the case of hostage negotiators, SWAT team members must undergo additional tactical training and are on-call 24 hours a day, seven days a week. They must also maintain a high level of physical fitness to participate in this unit. Todd Reaves was recommended because of his field officer training experience and his participation on the hostage negotiation team. Reeves also made noteworthy arrests in the northern part of the county, which was not a particularly busy area. Reeves had also received a lifesaver award for his extraordinary actions in providing care to a canine officer who was shot by a suspect. Petitioner was not recommended because the reviewers were not aware of any activities and assignments that set him apart from the other candidates. They were unaware of the fact that Petitioner had become certified as an ATV instructor, since that occurred on April 21, 2006, after the March 10, 2006, information deadline. The reviewing panel would not have given as much credit for Petitioner being an ATV instructor, even if his certification had occurred before March 10, 2006, since this activity did not require as much of a time commitment as a field training officer, hostage negotiation team member, or SWAT team member. The panel also passed over William Bass (ranked number two on the roster) and Christian Turcic (ranked number seven). Deputy Bass was deemed not particularly motivated and refused a transfer to a busier district when it was offered. Deputy Turcic was passed so he could complete his new assignment as a trainer of a new dog. Once he completed his assignment, he received a promotion to sergeant in September 2006. The age of the candidates for promotion was not a topic discussed by the reviewing panel. Sheriff Hall promoted Deputies Dunne, Dunsford, Enterkin, Hawkins, Reeves, and Salter in June 2006. He based his decision to promote these deputies upon the recommendations of his staff without regard to their age. When Petitioner became aware of the identities of the promoted deputies, he tendered a brief letter of resignation, dated June 15, 2006, in which he stated that his total loss of faith in the administration caused the need for him to leave immediately. Petitioner followed the brief letter with an email to Sheriff Hall on June 16, 2006, in which he elaborated on his qualifications and justifications of why he should have received a promotion to sergeant. Petitioner informed Sheriff Hall that he believed a "good-ol-boy system" was in place in the Santa Rosa County Sheriff's Office. In his letter and email resigning from Respondent, Petitioner made no mention of his age as a factor in his failure to be promoted to sergeant. Petitioner never inquired as to why he was not promoted. He met with Sheriff Hall, who informed him that he could be considered for promotion at a later date and encouraged him to contact Major Collier. Petitioner never spoke with Major Collier regarding his failure to be promoted to sergeant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Steven L. Boles 262 County Road 617 Hanceville, Alabama 35077 Robert W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32308 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Petitioner should be granted an exemption from disqualification from working with children.
Findings Of Fact At all times pertinent to the issues herein, the Department of Juvenile Justice (DJJ) was responsible for administration of a program whereby Departmental employees were screened for employment with the Department to ensure that only persons qualified though training, experience, and behavior had direct contact with clients of the Department. Petitioner, Brian Reed, was employed by ACTS as a drug laboratory technician on the alcohol, drugs, and mental health, (ADM), side of Bradlee Manor, a residential facility operated by the DJJ. Bradlee Manor also operates a program for the DJJ for children between the ages of 10 and 13 who have been convicted of felony offenses. Mr. Reed also worked on the department’s side of the facility for about six months when the facility first opened, but found that he did not like it. His preference was to work with children with a substance abuse problem, and as a result, he was transferred to the ADM side of the facility. He does not want to work on the Department’s side but instead wants to continue working with the substance abuse residents because he is good at it and he likes it. However, as a part of his job it is necessary for him to come into contact with the DJJ residents from time to time for such things as lab work, and serving as a driver when no one else is available. Throughout his five and a half years of employment at the institution, Petitioner has received periodic performance appraisals. At first, admittedly, he had some minor problems with the accomplishment of his duties, but as he learned the requirements of his job, his difficulties disappeared. At no time were any of his problems related to his discipline or inappropriate behavior, and only on one report was his performance classified as conditional. On all other reports he has been rated either satisfactory or above satisfactory. There are no recorded instances of inappropriate behavior recorded in Petitioner’s employment file. In fact, the supervisor who at one time rated him lower than satisfactory later requested Petitioner be reassigned with him to a new facility. Petitioner has a criminal record. In June 1983, when he was a young man, he was arrested for car theft and for stealing a radio from the car and pawning it. At the time of this offense, Petitioner was 18 years old and almost consistently under the influence of alcohol and drugs, and he admits to having committed the offense to get money to support his habit. He was, at the time, living with his father who was also a drunk. As a result of this offense, adjudication was withheld and Petitioner was placed on two years probation which he subsequently violated in October 1983 by stealing his step- father’s truck. Again adjudication was withheld, but in February 1984, Petitioner was arrested for grand larceny and dealing in stolen property. Though the grand larceny charge was dropped, he was convicted on dealing in stolen property and was incarcerated. He claims that during this period, he was still on drugs and his offenses related to his habit. On October 13, October 15, and November 5, 1985, Petitioner was arrested on a total of 12 counts of burglary and grand larceny and was found guilty of all counts. He was sentenced to four and one half years confinement with a recommendation by the sentencing judge that he be confined in a facility where drug rehabilitation treatment was available. Petitioner remained in prison until he was released in July 1987. While in prison, Petitioner contends he realized he must change his life and weaned himself from drugs and alcohol, both of which were available in prison. On his release he entered a 12-step program for help with his alcohol and drug problem and is still enrolled. It is a life-time commitment, and he attends meetings two or three times a week. He has been drug and alcohol free since January 1988, when he had two glasses of wine on his wedding anniversary. He has not had any adverse involvement with the law since his discharge from prison, and is currently engaged to be married a second time. He owns a home and has a three-year-old son. He owns animals, fishes for a hobby, and associates only with people who do not drink or take drugs. When Petitioner was first hired by the DHRS, the predecessor agency to the DJJ, he made a complete disclosure of his criminal record and was cleared for employment by the Department’s screening process. By letter of August 19, 1993, James E. Thomas, the District Screening Coordinator for DHRS’s District Six, advised ACTS Inc., Petitioner’s employer, that the screening background check on Petitioner had been completed and had found nothing which would disqualify him from working in the ACTS program. The screening was considered to be valid for five years. Between 1993 and 1998, the Florida Legislature changed the statute to include misconduct of the nature committed by Petitioner among the bases for disqualification. By letter dated April 1, 1998, Priscilla A. Zachary, Background Screening Unit Supervisor for the DJJ, advised Petitioner that he was ineligible for continued employment in a position of special trust because of his prior criminal record. The record relied upon for this determination was identical to that made known to the DHRS when Petitioner was first hired and cleared by that agency. No additional of different misconduct was involved. Petitioner was also advised of his right to request an exemption from disqualification and he did so. By letter dated April 16, 1998, Jenny Spence, the ACTS program supervisor for the program in which Petitioner was employed, supported Petitioner’s continued employment, pointing out that one of the main concepts under which the organization operates is to support the employment of individuals who have made unfavorable choices in the past, have been rehabilitated, and are now leading productive lives. Petitioner is a prime example of such an individual, and was considered to be of good moral character now. Ms. Stone also pointed out that Petitioner had made full disclosure of his background and had been cleared for employment by the predecessor agency. On April 21, 1998, a District Screening Committee was appointed to consider Petitioner’s request for exemption. One of the members of the committee was Donald W. Lewis, a senior management analyst II, who has served on numerous exemption committees. As was pointed out in the letter of appointment, Mr. Lewis indicated the role of the committee is to look at the material presented, to listen to the evidence presented, and to make a determination if there is sufficient evidence to indicate the applicant’s employment should be continued, consistent with the guidelines provided by the Department. The committee met on April 28, 1998, and heard the Petitioner’s presentation. Petitioner testified in person, describing his offenses, his previous problems and how he had dealt with them, and his rehabilitation efforts. Petitioner also presented testimony from others by telephone and introduced documentary evidence in his behalf. He was completely forthcoming and gave the committee all the information it requested. The open session of the committee meeting lasted approximately one and a half hours. Petitioner did not ask for additional time nor did he ask to submit additional information. After Petitioner was excused, the committee immediately deliberated in closed session and, after considering all the information which had been presented, concluded unanimously that Petitioner should not be granted the exemption. The factors on which the committee relied in its decision were, in the main: the fact that Petitioner’s criminal record was so extensive as to both gravity and repetition. (Even while on probation, and after release from [the first] incarceration, Petitioner committed additional offenses.) the fact that Petitioner was twice incarcerated. Petitioner’s violation of probation. All of the above factors were not the characteristics that were desired in the DJJ programs contracted to ACTS. Mr. Lewis sees a difference between ADM residents and DJJ residents. In his opinion, Petitioner should not be in direct supervision of DJJ residents with his criminal background, but could work in other programs with children for other agencies. He is of the opinion that DJJ residents, themselves felony offenders, should have role models who do not have criminal backgrounds. According to Mr. Lewis, the committee found some degree of rehabilitation in Petitioner, but not enough evidence to show total rehabilitation. Such evidence would include presentations from people to show no likelihood of relapse, notwithstanding the extended period of time which has already elapsed since his last offense without relapse, and Petitioner’s successful and continuing participation in the 12-step program. Mr. Lewis was unable to state what objective information would be enough. He compares Petitioner with other employees who have not been convicted or incarcerated, but admits there are no objective definitions of what would be enough evidence to demonstrate complete rehabilitation. The committee took the position that Petitioner’s moral character has been good recently, but contrasted that with his youthful record. This was enough, it was believed, to give a legitimate concern about his relapsing. Another concern expressed by Mr. Lewis, but which was not raised by any of the evidence presented, is that Petitioner might have learned conduct while in prison which might make him a danger to children. No evidence to give rise to that suspicion was presented and it is pure speculation. The Department’s Inspector General, Mr. Perry Turner, pointed out that the number one goal of the Department is to improve the environment so that citizens can have a reduction in fear of crime and a better quality of life as a result of a reduction in juvenile delinquency. In hiring employees, both departmental and contract, the Department applies three priorities. The first is the public safety. The second is cooperation with communities. The third is accountability by offenders and the Department. Employment screening standards are applicable to both the Department and contractor employees. The screening process is overseen by the Inspector General who sits as action officer on exemption requests after the screening by the exemption committee. In the instant case, Mr. Turner reviewed the Petitioner’s file and the record of the committee, and based on the entire package, decided to deny the request for exemption. His reasons for doing so rest on Petitioner’s extensive criminal record, the severity of the acts committed, his double incarceration, and his violations of probation along with all the information submitted by Petitioner. The issue is whether Petitioner should be allowed to work with the special needs clients of the DJJ, and whether he could be a good role model for children already involved with the criminal justice system. Considering the criminal justice purpose of the agency, as opposed to its social service purpose, and consistent with the dictates of the enabling statute, Mr. Turner concluded the exemption should be denied. Petitioner disagrees with the position taken by Mr. Turner. In his opinion, he would be an appropriate role model for the young people incarcerated in the department’s facility. His success and rehabilitation would, he claims, show that an individual who was on drugs and alcohol, who gave up those substances, and who applied himself to making a better life for himself, can, with appropriate help, guidance, and assistance, make good. Ms. Loretta Longworth, an administrative assistant in personnel management for ACTS, is the individual who submitted the screening request for Petitioner. She recalls that when Petitioner was hired in 1993, he disclosed his complete criminal history which was forwarded to the DHRS. That agency approved him without restriction. Since that time, Petitioner has worked successfully for ACTS in a number of different positions, including serving as a direct care worker for children and as a shift supervisor. Based on their experience with Petitioner, ACTS has no reason to believe he is not of good moral character. He has demonstrated no problems, nor has he received any bad reports, and there is no reason to believe he would be a danger to children who would come into contact with him. Much the same opinion is held by Kenneth Hogue, Petitioner’s long-time supervisor at Bradley Manor, and the individual who hired Petitioner at ACTS more than five years ago. Petitioner made him aware of his criminal background at that time, and over the several years he has supervised Petitioner, has found his performance to be above satisfactory. In fact, he asked Petitioner to go with him from one facility to another. Though his experience with Petitioner is purely work- based, Mr. Hogue finds Petitioner to be of good moral character and has no reason to believe Petitioner would pose any danger to children. Mr. Hogue does not believe a criminal record by itself should be disqualifying. The individual is the issue, and Petitioner’s story is a prime example of learning from mistakes and succeeding. Mr. Hogue has no reservations at all about Petitioner working with DJJ residents. Based on his day-to-day observation of Petitioner, he finds Petitioner to be a positive role model for young people. In Hogue’s opinion, it is important to have both reformed malefactors and individuals with clean records working with children in the juvenile justice system. Lawrence Douglas, a personal friend and prior co-worker, and himself a recovering alcoholic, works as an addiction counselor at another facility. He found Petitioner to be very good with clients who gave orderly directions and never posed a threat to the clients. According to Mr. Douglas, it is not unusual for recovering substance abusers to work in counseling, and they are usually good at it. Petitioner is, and Hogue does not believe Petitioner, who he finds to be of good moral character, would pose any threat to his clients. Nadine Griffith, a teacher in Hillsborough County, met Petitioner at a Narcotics Anonymous meeting about 12 years ago and sees him weekly at their home group sessions. She has observed Petitioner in the company of juveniles in their recovery group, and from those repeated observations does not believe he would be any danger to juveniles. Juveniles seem to like Petitioner and come to him for guidance. He passes his substantial recovery experience on to these juveniles, and this is helpful to their recovery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a Final Order granting Brian Reed an exemption from disqualification from employment to work in a position of special trust. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: Mary L. Greenwood, Esquire Greenwood & Associates Law Group, P.A. 2130 West Brandon Boulevard Suite 101 Brandon, Florida 33511 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-3100
The Issue This is an examination challenge proceeding in which the Petitioner contends that he should be given additional credit for his answers to two challenged questions from Section 5 of the April 25, 1995, Law Enforcement Officer Basic Recruit Training Examination.
Findings Of Fact Background matters The Respondent agencies are agencies of the State of Florida and are charged by statute with responsibility for the testing and certification of law enforcement officers in Florida. Petitioner seeks to become a Florida certified law enforcement officer. To that end, on April 25, 1995, he sat for Section 5 of the certification examination. In order to receive a passing grade on Section 5 of the examination, the Petitioner must answer 80 percent of the questions correctly. The Petitioner was originally given a grade of 75 percent on the April 25, 1995, examination. The examination was then manually graded and the Petitioner was awarded a raw score of 46 points which equates to a percentage score of 77 percent correct. At the commencement of the hearing the Respondents stipulated that the Petitioner should be given credit for his answer to question 38. That stipulation had the effect of increasing the Petitioner's raw score to 47 and increasing his percentage of correct answers to 78.3 percent. The Petitioner needs a raw score of at least 48 in order to have answered 80 percent of the questions correctly. Multiple choice questions on a certification examination should have only one correct answer choice. If more than one of the answer choices is arguably valid it is the policy of the Criminal Justice Standards and Training Commission to give candidates the benefit of the doubt and give them credit for an arguably correct answer other than the "keyed" correct answer. Question Number 30 Question number 30 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-704(A1), the topic of which is "Use of Force Matrix/Levels of Resistance Matrix." Question number 30 is a multiple choice question, the answer to which involves identification of the appropriate initial officer response level to a situation described in the question. 5/ The situation described in question number 30 involves conduct by the subjects described in the question that could be interpreted as at least level 5 resistance on the Level of Resistance Matrix. When faced with that level of resistance, the Use of Force Matrix authorizes a broad range of officer responses from as little as "arrival" or "officer presence" to as much as "incapacitation," with nine or ten authorized intermediate responselevels in between. Judging from the "keyed" correct answer, question number 30 was apparently intended to test the candidates' knowledge of the first response level itemized on the Use of Force/Levels of Resistance Matrix. However, the question is worded in such a way that it appears to be asking what the candidate would do first if he or she responded to the situation described in the question. In view of the definitions in Law Enforcement Objective CJD-704(A1) of the terms "Presence" and "Dialogue" under the caption "OFFICER RESPONSE LEVELS," the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 6/ Question number 30 is also ambiguous because of all of the potential variables that might be present in a situation such as that described in the question, which variables could change the nature of the most appropriate response. By reason of this ambiguity in the subject question, the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. Question Number 54 Question number 54 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-723(F1), the topic of which is "Vehicle Pullovers." Question number 54 is a multiple choice question, the answer to which involves identification of the first thing an officer should do in the situation described in the question. 7/ Question number 54 is ambiguous and misleading when the question is considered in light of the language of the relevant portions of Law Enforcement Objective CJD-723(F1), which read as follows: OBJECTIVES: The student will: * * * Describe the proper positioning of the patrol vehicle, to include: approximately 15 feet behind the vehicle approximately 3 feet to the left turn the radio up leave flashing lights on during the entire stop. Recall that an officer should constantly observe the vehicle and occupants. Identify the procedures to be followed while approaching the vehicle on foot, to include: be aware of traffic conditions observe the driver and passengers by looking in the side or rear windows check the trunk to be sure it is closed. approach slowly and carefully from the left front door of the patrol vehicle to just behind the left front door of the violator's vehicle when only the front seat is occupied minimize exposure by standing just to the rear of the violator's vehicle, if rear seat occupied visually check persons and passenger's compart- ment for weapons carry flashlight, if needed, leaving strong hand free for possible weapon use Recall that it is important to have the driver turn off the engine [immediately] after stopping. Identify steps to follow during the initial violator contact, to include: greet the offender with courtesy obtain the driver's license and registration [immediately] to gain control briefly state reasons for stop do not accept a purse or wallet with a license inside; ask the offender to remove it do not argue with the offender; thoroughly explain the reason for the stop. [Emphasis added.] The language from CJD-723(F1) quoted above does not purport to prioritize the actions it describes, nor does it clearly state which of the many actions described in that language should be taken first. Several of the actions described above could be reasonably identified as the first action a police officer should take under the circumstances described in question number The answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 8/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to credit for his answers to questions 30 and 54 and adjusting his examination score accordingly. DONE AND ENTERED this 24th day of January, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January 1996.
The Issue Whether the Petitioner should receive credit for his answers to certain examination questions on the State Officer Certification Examination ("SOCE") administered November 11, 2004.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with the responsibility for administering officer certification examinations and for establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2004). The SOCE is a multiple-choice examination, and there are four answer choices for each question. Mr. Page was a certified police officer in New Jersey for approximately three and one-half years before moving to Florida. Pursuant to Section 943.13(9), Florida Statutes (2004), Mr. Page was not required to attend a full six-months' basic recruit training program because of his background in law enforcement. Mr. Page did, however, attend a two-week, 80-hour state-certified training program in preparation for taking the SOCE, and he was provided a loose-leaf notebook containing written course materials. The course materials reflect the Commission's curriculum, and these materials are provided to the training institution, which is responsible for copying the materials and providing them to the students. According to the Commission, the correct answer to question 47 is "C"; Mr. Page chose answer "A." Question 47 describes the statutory elements of a crime, and the examination candidate must choose the answer that identifies the crime fitting the statutory elements set forth in the body of the question. Question 47 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 55 is "D"; Mr. Page chose answer "A." Question 55 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 55 is clear and unambiguous; the question is statistically valid and classified as a moderately difficult question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 63 is "D"; Mr. Page chose answer "A." Question 63 describes the actions of a person, and the answer choices set forth conclusions a law enforcement officer could draw from these actions. The examination candidate is asked to choose the appropriate conclusion. Question 63 is clear and unambiguous; the question is statistically valid and classified as a difficult question3; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 159 is "B"; Mr. Page chose answer "A." Question 159 requires the examination candidate to fill in the blank in the body of the question. The examination candidate must choose the answer that accurately completes the statement contained in the body of the question. Question 159 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 195 is "A"; Mr. Page chose answer "B." Question 195 describes an activity in which a law enforcement officer might engage, and the examination candidate is asked to choose the answer that best describes the consequences of the officer's engaging in such an activity. Question 195 is clear and unambiguous; the question is statistically valid and classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 248 is "B"; Mr. Page chose answer "C." Question 248 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the answer describing the appropriate action. Question 248 is clear and unambiguous; the question is statistically valid and is classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 251 is "C"; Mr. Page chose answer "A." Question 251 describes a scenario, and the answer choices provide various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 251 is clear and unambiguous; the question is statistically valid and is classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. The specific curriculum materials referred to by the Commission as supporting what it deemed to be the correct answers to questions numbered 47, 63, 159, and 195, were not included in the loose-leaf notebook provided to Mr. Page as part of the 80-hour training program in which he participated prior to taking the SOCE.4 These omissions are not sufficient of themselves, however, to justify giving Mr. Page credit for his answers to these four questions. Because Mr. Page failed to establish either that the questions were ambiguous or that the answers he gave on the examination questions were correct, he is not entitled to credit for his answers to these questions.
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 dismissing the challenge of Jason R. Page to the scoring of his answers on the SOCE administered on November 11, 2004. DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 June, 2005.
