The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Homer Rozier has been certified as a correctional officer in the State of Florida. On February 17, 2003, Respondent was employed at the South Bay Correctional Facility. He resigned from that employment on or about July 16, 2003. On February 17, 2003, Chad Pelham was employed as a loss prevention officer at the Wal-Mart located in Clewiston, Florida. As a law enforcement officer certified by the State of Florida for the five years previous, Pelham had been trained in law enforcement techniques, including observation, and was qualified to perform store security duties. On that date, Respondent and his wife entered the Wal- Mart to shop. Since other Wal-Mart employees told Pelham they suspected that Respondent had stolen items from the store on previous occasions, Pelham and his partner followed Respondent and his wife, watching them as they shopped. Respondent and his wife selected some baby shoes from the shelf, removed the tags, and placed the shoes on their infant. They continued walking through the store, stopping to remove a bottle of water from the Wal-Mart cooler, and drinking the water as they shopped. Respondent and his wife proceeded to the houseware section. Respondent removed two wallpaper borders and a bathroom tumbler from the displays and hid them in his baby's diaper bag that he had in the shopping cart. In the deli department of the store Respondent and his wife obtained a bag of chicken. They ate the chicken as they walked through the store and then discarded the bag. In the electronics section of the store Respondent took two magazines related to certain electronic games, such as Nintendo X-box, and put them in his shopping cart. These magazines were sold by Wal-Mart for approximately $15 and $13. When Respondent was in the housewares section he placed the magazines under some towels (or rugs), concealing them. Respondent and his wife then proceeded to the cashier and paid for some of the merchandise they had taken. They did not pay for the chicken they had eaten or the water they had drunk or the baby shoes they had placed on their baby's feet. After paying for the items in their cart and having those items placed in blue Wal-Mart bags, Respondent and his wife left the register area as they would do to exit the store. They did not exit, however. Instead, carrying the Wal-Mart bags containing the items they had paid for, they split up, with Respondent returning to the housewares section and his wife returning to the groceries section. In the housewares section, Respondent retrieved the gaming magazines he had hidden under the towels (or rugs) and placed them in the Wal-Mart bags containing items that had been purchased. He then rejoined his wife in the grocery aisles where they placed some small items in the bags containing the items that they had purchased. They then proceeded to exit the store without returning to a cashier to pay for the items they had not purchased. After Respondent and his wife exited through the first of two sets of exterior doors, Pelham and his partner detained them. Pelham and his partner retrieved the merchandise Respondent and his wife had not paid for and contacted the City of Clewiston Police Department. Officer Demetrius Scruggs responded to the call, coming to the store and arresting Respondent for retail theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and suspending his certification as a correctional officer for a period of 90 days. DONE AND ENTERED this 23rd day of September, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 23rd day of September, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Homer Rozier 633 Southwest Eighth Street, No. 5 Belle Glade, Florida 33430
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a correctional officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Dennis W. Zeighler, holder of Corrections Certificate Number 145432 issued March 25, 1994. Respondent was employed as a sworn Corrections Officer with the Hamilton Correctional Institution (HCI) from March 25, 1994 to September 22, 1994. During his employment with HCI, Respondent came to know Luis Nieves, an inmate at the institution. Nieves offered to sell Respondent a gold Seiko watch for $15. Respondent was uncertain as to whether he should buy the watch, but accepted it from Nieves and placed it in his desk drawer at HCI. Later, on the way home, Respondent mailed a money order for $15 to Nieves in an envelope bearing the return address of Nieves’ sister-in-law. Following discussion that evening with his brother, also a correctional officer, Respondent became concerned about the transaction. Respondent consulted his copy of the Department of Corrections Policy Manual and realized he wanted no part of the transaction. Upon his return to work the next morning, Respondent removed the watch from his desk and returned it to inmate Nieves. Respondent told Nieves that the transaction was "not right" and that he, Respondent, did not want to lose a job that he loved. Respondent also told Nieves to keep the money.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of unprofessional conduct and placing his certification on probationary status upon such reasonable conditions and for such reasonable period of time as shall be determined appropriate by The Criminal Justice Standards and Training Commission. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dennis W. Zeighler 1301 Campbell Street Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/ In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of March, 2013.
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Department of Corrections acted fraudulently, arbitrarily, illegally, or dishonestly, thus subverting the purposes of the bid statute by deciding to reject all bids submitted in response to invitation to bid number 97-DC-7048? Whether the Department of Corrections, after initiating a competitive bid process for the purchase of commodities under Section 287 et seq. Florida Statutes, is permitted to award the contract for the purchase of the commodities to PRIDE under Section 946.515, Florida Statutes, without regard for the requirements of the bid statute, Section 287 et seq. Florida Statutes? Whether the Department of Corrections violated the purposes of the bid statute by commencing and continuing negotiations with PRIDE regarding the uniform shirts that were the subject of invitation to bid number, 97-DC-7048, after the rejection of all bids submitted in response to the Invitation To Bid (ITB)?
Findings Of Fact On Friday, December 20, 1996, the Department of Corrections ("Department") issued bid proposal 97-DC-7048, pursuant to the bid statute and applicable regulations (the "ITB"). The bid was opened on January 8, 1997. The ITB requested prices for eight different shirts: men's and women's tan and white, short and long-sleeve shirts. The ITB did not request prices for maternity shirts. The ITB provided that the "[s]uccessful bidder may be required, before the award of the contract, to show to the complete satisfaction of this office that they have the necessary facilities to assure compliance with [the] bid as submitted and within the time specified." The ITB also provided that "[t]he Department reserves the right to reject any and all bids." Elbeco is a manufacturer of uniform shirts. For the past three years, Elbeco had been awarded the bid by the Department for the manufacture of correctional officer uniform shirts, and its latest contract expired February 7, 1997. PRIDE is a nonprofit corporation authorized by Florida Statute to operate correctional work programs for inmates. The directors of PRIDE are appointed by the Governor. In early 1996, William Stancill, General Manager of PRIDE and a former Chief, Bureau of General Services of the Department, met with Stan W. Czerniak, Assistant Secretary of the Department, to discuss the possibility of PRIDE manufacturing correctional officer shirts for the Department. The question of quality was raised by Czerniak, and Stancill offered to have PRIDE make sample shirts. These samples were made and distributed to the regional directors of the Department. The samples also were brought by Mr. Czerniak to the Department's October 1996, Executive Leadership Committee meeting where they were discussed. The samples were made at the Lawtey Correctional Institution and were returned to PRIDE after the October 1996, meeting. Prior to the issuing by the Department of the ITB, Mr. Stancill made at least two presentations to the Department at the offices of the Department regarding PRIDE's manufacture of correctional officer shirts for the Department. These presentations were attended by Secretary Singletary. The subject of the discussions between Stancill and the officials of the Department was PRIDE's bidding on the contract for the correction officers' shirts. The Department knew that PRIDE made uniform shirts; knew about the quality of PRIDE's shirts; knew that PRIDE wanted to make shirts for the Department; and knew that there were security issues involved in PRIDE making these shirts prior to issuing the ITB. The subject ITB required the contract vendor to purchase and sew various emblems on each garment. Under the prior contract, the institutional tab was not sewn on the shirts by the contract vendor. The institutional tab is a small emblem which identifies the particular correctional institution to which the officer is assigned. This tab is also referred to in the testimony as the rocker emblem. There are 56 correctional institutions operated by the Department. Elbeco incurred significant expense and spent a great deal of time in connection with the preparation and submission of the ITB. Considerable effort was incurred in contacting suppliers and locating personnel during a holiday period. Significant time and effort was also expended in connection with devising a strategy to deal with sewing on the rocker emblem. Because there were 56 different correctional institutions, each of which required its own tab, the rocker emblem could not be sewn on during the manufacturing process. The rocker emblems would have had to be sewn on the shirts separately by Elbeco upon the receipt of an actual order from an institution. This would require Elbeco to box the un- ironed shirts by size prior to sewing on the tabs. Upon receiving an order from an institution, appropriate sizes would have had to be retrieved and the tabs hand-sewn on each one. Thereafter, the shirts would have had to be ironed, folded, and re-boxed. This process would be labor intensive for Elbeco. It is noted that Elbeco, unlike PRIDE, is subject to wage and hour laws. Bids were opened on January 8, 1997. PRIDE bid $10.84 for all sizes of the short-sleeve shirts and $13.33 for all sizes of the long-sleeve shirts. Elbeco bid $13.60, $13.15, $13.95 and $13.50 for various sizes of the short-sleeve shirts, and $16.05, $15.60, $16.15 and $15.80 for the various sizes of the long- sleeve shirts. Calculating the purchase of the exact number of shirts anticipated to be ordered by the Department, it would cost $672,735 to buy the shirts from PRIDE and $834,175 to buy the shirts from Elbeco, a difference of $161,440. PRIDE submitted the lowest bid for shirts to be manufactured by inmates of the Department of Corrections. The evaluation committee determined that the bid submitted by PRIDE was responsive and sample shirts were requested by the Department and submitted by PRIDE. Elbeco had the second lowest bid. The Department did not determine if Elbeco's or any of the other bids were responsive. The samples submitted by PRIDE did not have the number of horizontal threads per square inch or the "fill" required by the ITB. However, PRIDE's shirts used the fabric identified in the ITB. The failure to meet the required number of horizontal threads was not a substantial deviation from the specifications. The Department had security concerns with the possibility a PRIDE inmate worker could take a correctional officer shirt, put on the shirt, and escape by walking out of the institution dressed like a correctional officer. After the bid opening, Secretary Singletary instructed James Upchurch, Security Administrator, to ensure that the proposed PRIDE manufacturing facility at the Lawtey Correctional facility would be suitable for the manufacture of correctional officer shirts. A meeting was held between PRIDE and the Department on January 28, 1997, to discuss security issues. An on-site inspection of the proposed manufacturing facility was held on February 6, 1997, in order to determine what security enhancements were required. This inspection was attended by representatives of PRIDE and the Department. Prior to the February 6, 1997, inspection of the Lawtey Correctional Institution, the Department had made several improvements to the proposed manufacturing facility in anticipation of PRIDE being awarded the contract. These included construction of a lockable shake down area and construction of a fenced-in outdoor break area for the inmates. As a result of the inspection and meetings, the Department required the following additional security provisions: expanded metal would be required to be purchased and installed over the exterior of the windows of the facility, extension of the fence installed around the break area, and installation of a hand print verifier. The Department also required that all of the doors of the facility be locked rather than use the panic bars currently provided. This necessitated employment of two additional correctional officers to provide added security and control the keys in case of emergencies. PRIDE also was required to fund any overtime for correctional officers required at the fabrication facility. After the meeting, Mr. Stancill sent Mr. Upchurch a letter dated February 13, 1997, to address the specific issues and concerns raised by the Department at the meeting, as follows: Thank you for the time you, Mr. Czerniak, Mr. Crosby, Supt. Gordon, and Major Cairel spent with our staff in discussing PRIDE's proposed plan to supply uniform shirts to the Department. We also appreciate the input Mr. Roberts with the Fire Marshall's [sic] office. After reviewing the security concerns expressed in the meeting, PRIDE will agree to the following modifications and will not ask for an increase in our bid price for shirts. Uniform shirt sales will not be considered in PRIDE's calculation of payments to the Department: Fund two (2) Correctional Officers who will be assigned to the PRIDE industry. Thirty two thousand dollars ($32,000) each. Purchase necessary expanded metal to cover the exterior windows in the PRIDE building (the Department will install). Purchase fence material to add a top to the outside break area (the Department will install). Fund the cost of a hand verifier similar to that used at North Florida Reception Center at a cost not to exceed six thousand five hundred dollars (6,500). Agree to fund Correctional Officers overtime if extra hours or extended operating days are required. Your choice in the following two options for labels in the Correctional Officer shirts, "Quality Uniforms for Quality Officers" or "Manufactured for the Florida Department of Corrections". The Department will begin serving bag lunches to inmates assigned to the PRIDE industry. PRIDE understands and appreciates the concerns for both quality and security expressed at each meeting and is committed to making it happen. An Officer Uniform sample is being provided directly to Mrs. Bonnie Holcomb in the Bureau of General Services for your specification compliance testing. (Emphasis supplied.) The underlined portion of the letter above refers to the payment of one-and-one-half percent of the value of PRIDE's sale of goods to the Department. Nancy Wittenberg, Assistant Secretary of Administration of the Department, did not agree to foregoing the one-and-one-half percent payments made to the Department from sales of uniform shirts. At a February 20, 1997, meeting of the Department's Executive Leadership Committee, the union's objections to employees sewing on the rocker tabs were raised by Secretary Singletary. The Secretary decided that the rocker emblem would be eliminated from the uniform. The union was demanding that officers be paid for sewing on the rocker emblems. It was estimated that the cost would be $25-$30 per officer per year. The decision to eliminate the emblems was made despite the fact that the ITB called for the vendor to sew the rocker emblems on each shirt, a fact known to Nancy Wittenberg who attended the meeting. On February 24, 1997, when advised by Nancy Wittenberg about deleting the rocker emblems, Karin Morris, the Department's purchasing specialist, recommended to Nancy Wittenberg that the contract be rebid. Shortly after February 24, 1997, Nancy Wittenberg discussed the pending ITB with Secretary Singletary. The Secretary decided that all bids would be rejected, and the Department would negotiate exclusively with PRIDE for the purchase of the uniform shirts that were the subject of the bid proposal. Karin Morris testified that on February 5, 1997, she realized she had left maternity uniform shirts out of the ITB. In the past, these shirts would be purchased as needed. At the May 13, 1997, hearing, the Department was unable to indicate how many maternity uniforms were required in a year. The record did not reveal discussions between PRIDE and the Department about the specifications or prices for the maternity shirts. On March 4, 1997, after the decision to reject the bids had been made, Ms. Wittenberg called a meeting with Karin Morris; Stan Czerniak, Assistant Secretary for Security and Institutional Management; and William Stancill of PRIDE. At the meeting, PRIDE proposed to reduce its original bid price by $.27 to eliminate the rocker and increase its bid price by $1.094 to cover the additional security enhancements required by the Department, for a net increase of $.82 per shirt. Following that discussion, the Department proposed a price increase of $.75 per shirt over the price originally bid by PRIDE, to which PRIDE agreed. It was agreed at the March 4th meeting that the Department would be responsible for acquiring and installing expanded metal to cover the exterior windows in the facility and purchase and install fence material to add a top to the outside break area that had already been constructed by the Department. Finally, it was agreed that one-and-one-half percent would be paid to the Department by PRIDE from the sales of uniform shirts. As of the meeting on March 4, 1997, the Department had not notified PRIDE or any of the other bidders of its decision to reject all bids. Prior to rejecting all bids, the Department never requested that Elbeco supply it with a new bid price, reflecting the elimination of the rocker emblem. The Department never calculated or considered the costs of the security enhancement required to manufacture the shirts at the Lawtey manufacturing facility in arriving at its proposed price, which was $.75 over PRIDE's initial bid. Immediately following the meeting on March 4, 1997, Karin Morris instructed the Department personnel to prepare a proposed contract. The proposed contract contains the terms agreed to at the March 4, 1997, meeting regarding the original response to the ITB. However, the contract's term was for two years with a two-year renewal term, a departure from the terms of the ITB. On March 5, 1997, Karin Morris instructed Bonnie Holcomb, purchasing specialist for the Department, to prepare for Morris' signature the letter to all bidders indicating that all bids had been rejected. The letter was signed by Ms. Morris and telecopied to all bidders. The letter did not indicate that the Department was pursuing a contract with PRIDE and did not state any reasons for the rejection of all bids. Several days after the March 4, 1997, meeting, Mr. Stancill met with the President of PRIDE. At that meeting, the President of PRIDE agreed to all of the terms and conditions discussed at the March 4, 1997, meeting. Elbeco filed a timely notice of intent to protest, and, on March 20, 1997, filed a formal written protest pursuant to Section 120.57(3)(b), Florida Statutes. Prior to rejecting all bids and up until the day of the hearing, the Department continued to pursue a contract for the uniform shirts exclusively with PRIDE. On April 29, 1997, the Department delivered to PRIDE the proposed contract. This contract contained the terms and conditions agreed to during the March 4, 1997, meeting which did not address maternity shirts. Since opening the bids, the Department has made no efforts to negotiate with Elbeco. Mr. Lurio, President of Elbeco, stated that the Department never offered to pay for any of Elbeco's manufacturing facilities or any improvements thereto. He also indicated that Elbeco has never returned to the Department a percent of sales as a payment in a manner similar to that required of PRIDE by the Department. The Department asserts it rejected all bids because of eliminating the tabs and failing to include maternity shirts in the ITB. The reason for eliminating the rocker emblems was the "demand" by the union representing the correctional officers for compensation to sew on these tabs. The Department’s stated reason for eliminating the tabs was allegedly the cost of meeting the Police Benevolent Association (PBA) demand for payment for this uniform maintenance item. Secretary Singletary placed the total cost of PBA's demand between $400,000-$480,000 ($25-$30 per officer) based on 16,000 officers having to sew on tabs on five shirts each year at $5.00 per shirt. This explanation does not fit the facts because under the ITB, the rocker emblems were to be sewn on all new shirts by the manufacturer. Ms. Wittenberg, who was in attendance at the meeting, knew about this provision of the ITB. Because the shirts were to be provided with tabs, the union's demand was only applicable to personnel transferred from one institution to another. Therefore, the Secretary’s cost estimate is severely flawed. The record reveals that maternity shirts were not a consideration because Secretary Singletary had decided to reject the bids prior to the maternity shirts being brought up. In addition, the facts reveal that there have been no discussions of specifications and costs for maternity shirts. The facts reveal that the bids were rejected after discussions with PRIDE in which the terms departed further and further from the specifications in the ITB. PRIDE’s price was increasing as a result of the costs for the various security measures, and the term of the contract being discussed with PRIDE was double the term set forth in the ITB. At the same time, elimination of the tabs meant Elbeco’s price on rebid would be less, and potentially much less. The foregoing is the factual situation surrounding the Department’s decision not to rebid the shirts and the basis for the Department's assertion that it is bound by law to pursue a purchase from PRIDE. The Department did not offer any evidence to explain why it initially rejected a sole-source purchase from PRIDE. Further, the Department did not offer any evidence regarding any change in circumstance supporting its sole-source purchase from PRIDE.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order that: The Petitioner is entitled to its costs in preparing its ITB and attorney’s fees and costs in this proceeding; Acceptance of this award is a bar to Petitioner’s challenging the decision of the Department to sole-source purchase the shirts from PRIDE because it embodies the same issues which would be raised in that matter; Jurisdiction is retained in the administrative law judge to consider the factual issues of the costs of preparing the ITB and the amount of Petitioner’s attorney’s fees and costs; and Otherwise, dismissing Petitioner's claims. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
