The Issue Whether or not Respondent failed to maintain the qualifications required of a correctional officer by failing to maintain good moral character, to wit, unlawfully and knowingly aiding and abetting an inmate confined at the Zephyrhills Correctional Institution to attempt to escape from such confinement on or about September 23, 1987, 1/ and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Mary A. Jackson, was trained and employed as a police officer by the Valdosta Georgia Police Department, a position she held from 1979 to 1985. Respondent relocated from Georgia to Florida during 1986. Respondent was certified as a correctional officer by the Criminal Justice Standards and Training Commission (Petitioner) on June 16, 1986 and was issued certificate number 41-86-502-03. During times material hereto, Respondent was employed by the Florida Department of Corrections as a correctional officer and was assigned to Zephyrhills Correctional Institution (ZCI). During September 1987, Robert Bridges and Charles Jeffrey were inmates incarcerated at ZCI residing in the "E dormitory". On approximately September 12, inmates Bridges and Jeffrey began discussing plans for an escape from ZCI. Their initial plan was to meet in the prison chapel and change out of their prison uniforms into street clothing which Respondent would provide. They would then mingle with prison visitors and exit the gate posing as visitors. This was to be done at a time when Respondent was in control of gate access. Inmate Bridges observed a personal relationship between inmate Jeffrey and Respondent during September 1987. This was evidenced by Respondent's visits with Jeffrey in the dorm for unusually long periods of time and their utilization of a method of communication by flashing lights at one another. Also during this period, inmate Bridges observed Jeffrey with a photo of Respondent dressed in a bikini bathing suit. Bridges and Jeffrey's initial plan was scuttled and they in turn agreed on a second escape plan whereby Respondent would provide them with a key to an exit door of "E" dorm. This door was nearest the fence and their plan was to exit the door under cover of darkness and scale the fences at a time when Respondent would be the only guard on that portion of the fence. Respondent and Bridges discussed this plan although Respondent expressed apprehension about going through with it. On September 22, inmate Bridges observed inmate Jeffrey and Respondent tossing an object back and forth to one another across a fence. Respondent stood outside the fence and Jeffrey stood inside the compound during this exchange. Bridges and Respondent also openly flirted with each other. For those reasons, Bridges felt that this behavior compromised the secrecy of the escape plan and he decided to back out. Although Bridges initially intended to attempt to escape with Jeffrey, he abandoned the plan and instead informed ZCI's authorities. Bridges was convinced that the escape would fail, resulting in the possibility of additional prison time beyond that which he was already serving. Bridges was also apprehensive that if he failed to report the plan and merely declined to participate, inmate Jeffrey would unsuccessfully attempt the escape and when it failed, Jeffrey would implicate him as a co-conspirator and he would suffer identical consequences for not divulging the plan to ZCI's security staff. On September 23, inmate Bridges requested a meeting with Lt. Wayne Hutto, an investigator at ZCI. Bridges first discussed the escape plans with Lt. Hutto and he thereafter reported the same information to Major Sammy Hill, head of security at ZCI. After discussing the escape plan with Hill and Hutto, they instructed inmate Bridges to go forward with the plan and to accept any keys given him by Respondent. Inmate Bridges was also instructed to give a prearranged signal when he received the key whereupon a correctional staff member would confiscate it. Inmate Bridges concealed his cooperation with ZCI authorities from inmate Jeffrey and the Respondent. During the evening of September 23, inmate Jeffrey reported to the prison chapel where he was assigned as chapel clerk. Jeffrey met Bridges in the chapel's office. On that day, Respondent reported to duty and was assigned to work in the institution's gatehouse control room with Sgt. Rhodene Mathis, the control room supervisor. Throughout the evening on September 23, Respondent appeared nervous and she was preoccupied with matters other than her work. As example, Sgt. Mathis assigned her to type some forms. Mathis examined the forms at a time when they should have been completed and discovered that Respondent had not started her assignment. Respondent telephoned the chapel from the control room approximately three times between her arrival at 4:00 p.m. and 7:25 p.m. On each of these occasions, Bridges would answer. Respondent in each case, asked Bridges to speak with "Nikki" whereupon Bridges gave the phone to Jeffrey. During one of the phone calls, Sgt. Mathis was out of the control room. When she returned, Respondent abruptly ended the call to Jeffrey. During one of the calls, Jeffrey told Respondent that he wanted the key and to let him and Bridges know when Sgt. Mathis was gone so that Bridges could come over and get the key from her. Sgt. Mathis departed the control room leaving Respondent alone at approximately 7:25 p.m. Her stated purpose in leaving at this time was to check on inmates in the institution's fire station. Upon her departure, Respondent immediately called the chapel and informed Bridges and Jeffrey that she was alone. Inmate Bridges walked to gatehouse from the chapel and Respondent, contrary to normal practice, released the remote gate lock mechanism and admitted inmate Bridges into the gatehouse without him asking, in advance, to declare his business in the gatehouse. Once inside the gatehouse, inmate Bridges made his way to the area immediately outside the control room. Once Respondent observed inmate Bridges from her position inside the control room, she looked to see if anyone was watching her. Respondent wrapped a key in a paper napkin and passed it to inmate Bridges through a security drawer. The key, identified as RE141-307, was the key which had been stored in a lock box in "E" dormitory. It would open the rear exit door of "E" dormitory and would assist inmates Bridges and Jeffrey in making a night escape over the fence behind "E" dormitory. This was a key which ordinarily an inmate of ZCI would be unable to obtain. As a correctional officer, Respondent had access to the key. Bridges took the key that Respondent wrapped in the napkin, placed it in his pocket and exited the gatehouse. Once outside, inmate Bridges gave a prearranged signal to Sgt. Levy Roberts, who had been designated to assist in aborting the plan by Major Hill and Lt. Hutto. Upon seeing the signal, Sgt. Roberts approached inmate Bridges and retrieved the key and napkin from Bridges. Sgt. Roberts handcuffed inmate Bridges and led him to "E" dormitory. Soon thereafter, Respondent learned that inmate Bridges had been intercepted by Sgt. Roberts. Upon learning of Bridges' interception, Respondent exhibited an unusual amount of curiosity as to the nature of Bridges interception. Respondent called a fellow officer and requested permission to leave her post to ascertain why Bridges was being held by Sgt. Roberts. This was an extraordinary request under the circumstances. Respondent's concern was her complicity in the escape plan. As agreed, Sgt. Roberts immediately telephoned Major Hill and Lt. Hutto and advised them that he had retreived the key from Bridges. Thereafter, Sgt. Roberts approached the gatehouse and signaled to Sgt. Mathis that he had recovered the key. Respondent, who was still in the gatehouse, immediately asked Sgt. Mathis for permission to leave her duty station. Later during the evening of September 23, Respondent was questioned by Major Hill and Lt. Hutto. Respondent provided a statement voluntarily without any promises, threats or coercion from either Hill or Hutto. During her statement, Respondent initially denied any involvement with Jeffrey or giving Bridges a key. However, later during her statement Respondent admitted giving Jeffrey the number of a pay phone located near her home and to receiving at least two personal calls from Jeffrey at the pay phone. Respondent admitted to accepting a collect call from Jeffrey on her home phone and she paid the tolls for the two calls which were made from Jeffrey to her at a pay station near her home. Also, Respondent admitted having previously discussed a plan for inmates Jeffrey and Bridges to escape involving the key to exit from "E" dormitory. Respondent ultimately admitted allowing Bridges to take a key from a ring located in the pass-through drawer in the guardhouse control room. At approximately 11:00 on September 23, Respondent returned to the gatehouse control room whereupon Sgt. Mathis asked her what she had done. Respondent replied that she had "really screwed up" and began crying. Upon further inquiry by Sgt. Mathis, Respondent told her that she had given Bridges a key because her safety and that of her children had been threatened by the inmates at ZCI. Although Respondent had confided in Sgt. Mathis of some personal problems prior to that time, she did not previously discuss any threats to Sgt. Mathis. On September 25, Tony Perez, a Department of Corrections prison inspector, interviewed Respondent. Respondent was advised of her constitutional rights under the Miranda decision and she agreed to answer questions voluntarily. Inspector Perez did not make any promises nor did he threaten or coerce Respondent to provide him a statement. During the early stages of the interview, Respondent related that she had three children, was divorced and that inmate Jeffrey asked her to assist him in escaping from ZCI such that he could accompany her to the Bahamas. During that statement, Respondent claims that she told inmate Jeffrey that she would not help him escape and that he could "get out on [his] own." (Petitioner's Exhibit 3, page 9.) Respondent admitted giving inmate Jeffrey the number of a pay telephone, thereafter receiving calls from him and discussing his aspirations to escape from ZCI. During Perez' interview of Respondent, she admitted that inmate Jeffrey asked her to get a "main key" and provide it to him. She also related other escape plans that she and inmate Jeffrey discussed. Respondent related receiving telephone calls from Jeffrey while he was assigned to work in the institution's chapel. Respondent also described giving inmate Bridges a napkin at the time she gave him a key from the sliding security pass-through drawer of the control room. (Petitioner's Exhibit 3, pages 23-25.) Although Respondent initially maintained that if inmate Bridges took a key away from the control room, this was done without her knowledge, she finally conceded that she knew Bridges had taken a key, but insisted that it was a key from one that she randomly selected and removed from ring number 4. A subsequent audit of ring 4 disclosed no missing keys. Respondent also admitted that she phoned a fellow inmate about inmate Bridges interception by Sgt. Roberts. At the conclusion of the Respondent's interview with inspector Perez, she resigned her position as a correctional officer at ZCI. During her resignation, Respondent told Major Hill that she had made a big mistake and had ruined her career. Respondent cried uncontrollably and threatened suicide. She ultimately regained her composure and left the institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's law enforcement certificate number 41-86-502-03. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 27th day of March, 1991.
The Issue The issue is whether Respondent assessed Petitioner for secure juvenile detention care for the 2007-2008 fiscal year in a manner that implements Section 985.686, Florida Statutes (2007), and Florida Administrative Code Rule 63G-1.1
Findings Of Fact Respondent is the state agency responsible for administering the cost sharing requirements in Section 985.686 for juvenile detention care. Petitioner is a non-fiscally constrained county2 subject to the statutory cost sharing requirements. The statutory requirements for funding juvenile detention in the state guide the findings in this proceeding. Subsection 985.686(1) requires Petitioner and Respondent to share the costs of "financial support" for "detention care" for juveniles who reside in Hillsborough County, Florida (the County), and are held in detention centers operated by Respondent. Subsection 985.686(3) requires Petitioner to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in Subsection 985.686(2)(a) to mean secure detention. Secure detention is defined in Subsection 985.03(18)(a), for the purposes of Chapter 985, to include custody "prior to" adjudication or disposition as well as custody after adjudication but "prior to" placement.3 The term "placement" is not defined by statute or rule. However, secure detention centers are legally unavailable to circuit courts for post-disposition placement. Post-disposition care of juveniles in a secure detention center is generally limited to juveniles who are waiting for residential placement. The trier-of-fact construes the reference to placement in Subsection 985.03(18)(a) to mean residential placement. Secure detention includes custody in a detention center for both predisposition and post-disposition care. Predisposition care occurs prior to adjudication or final disposition. Post- disposition care occurs after adjudication or disposition but prior to residential placement. Post-disposition care also includes custody in a detention center after final disposition but prior to release. Although this type of post-disposition care comprises a small proportion of total post-disposition care, references to post-disposition care in this Recommended Order include care after final disposition for: juveniles waiting for residential placement and juveniles waiting for release. Juveniles are not supposed to remain in detention centers very long after final disposition while they wait for residential placement. However, juveniles with exceptional needs, such as mental health needs, may remain in detention centers for a longer period of time due to the limited availability of appropriate residential placement facilities. Approximately 2,057 secure detention beds exist statewide. The operating cost for each bed is the same whether the bed is used for predisposition or post-disposition care. The operating cost for a secure detention bed may increase if the detention center exceeds capacity because of overtime expenses, temporary staffing, and other temporary costs. Although only two secure detention centers did not exceed capacity at some time during the previous year, secure detention utilization in the same year averaged approximately 89 percent of capacity. The Legislature funds the cost of juvenile detention care through an annual appropriation. Appropriations from 2002 forward have historically allocated approximately 11 percent of the cost of detention care to Respondent and approximately 89 percent to the counties. The total appropriation for the 2007-2008 fiscal year was $125,327,667. The Legislature allocated $30,860,924 to the state and $101,628,064 to the counties. Negative amounts in certain categories brought the net appropriation to $125,327,667. The Legislature pays the state's share of juvenile detention costs from general revenue. However, the "appropriation" for the counties' share of detention costs is actually an account payable. Pursuant to Subsection 985.686(6), Petitioner must make monthly payments into a state trust fund for its share of statewide predisposition detention costs. Subsection 985.686(3) requires Respondent to develop an accounts payable system to allocate to the counties the costs of secure detention for predisposition care. Pursuant to Subsection 985.686(5), Respondent administers the account payable system through a system of prospective assessment and retroactive reconciliation. Prospective assessments at the outset of a year are based on actual costs from the previous year. Subsection 985.686(5) requires Petitioner to pay the prospective assessment monthly and requires Respondent to complete an annual reconciliation at the end of the year to determine whether actual costs during the year were more or less than the prospective assessment. Sometime after the end of each fiscal year, Respondent either credits or debits Petitioner for any differences between the prospective assessment and actual costs determined in the annual reconciliation. Subsection 985.686(3) requires Petitioner to pay for the costs of secure detention in the County for the "period of time" juveniles are in predisposition care. No statute or rule expressly defines the phrase "period of time." Subsection 985.686(10) authorizes Respondent to adopt rules to administer Section 985.686. Rule 63G-1.004(1)(c) implicitly defines the statutory reference to a "period of time" in predisposition care to mean "service days." Other provisions in Rule 63G-1.004 prescribe the methodology to be used in calculating Petitioner's share of the costs for predisposition care. Respondent must first identify all juveniles in predisposition care based upon usage during the preceding fiscal year. Second, Respondent must match each placement record with the corresponding identification code. Third, Respondent must calculate the "service days" in predisposition care. Finally, Respondent must divide the number of "service days" Petitioner used for predisposition care in the County by the service days used by all counties to determine the percentage of the counties' costs for predisposition care that Petitioner owes. Petitioner disputes the methodology Respondent uses to determine the amount Petitioner owes for predisposition care in the County. However, that dispute is the subject of a companion case identified by DOAH Case No. 07-4398 and is beyond the scope of this proceeding. The dispute in this proceeding is limited to Respondent's determination of the service days that Respondent allocated to Petitioner for predisposition care in the County. The term "service days" is not defined by statute or rule. Respondent defines service days to mean "utilization" days. Utilization days are not synonymous with calendar days. Utilization days correspond more closely to the number of juveniles in secure detention. If for example, 10 juveniles utilize one detention center during any part of a day, 10 utilization days have occurred during one calendar day. A secure detention center may be utilized simultaneously by juveniles in predisposition care and juveniles in post-disposition care (dual-use occupancy). If the 10 utilization days in the preceding example were to include equal dual-use occupancy, Respondent would count five utilization days for predisposition care and five utilization days for post-disposition care. The 10 juveniles in the preceding example may not occupy a detention center for an entire calendar day. The five juveniles in predisposition care may occupy the center for only part of a calendar day and five more juveniles may receive predisposition care for the remainder of the day. In that example, Respondent would allocate 10 utilization days to Petitioner for predisposition care during that calendar day and only five utilization days to the state for a total of 15 utilization days. Respondent determined there were 709,251 utilization days for pre and post-disposition care in the state for the year in issue. Respondent allocated 579,409 utilization days to the counties' predisposition care and 129,842 utilization days to the state for post-disposition care. Respondent allocated 47,714 utilization days to Petitioner and, after reconciliation, reduced that number to 47,214. Petitioner claims the correct number of utilization days is 31,008. Respondent allegedly misallocated 16,206 utilization days for predisposition care by Petitioner. Respondent identifies the 16,206 utilization days in nine categories. The categories and corresponding number of days that Petitioner challenges are: contempt of court (327), detention order (3,005), interstate compacts (1), pick up orders (12,267), prosecution previously deferred (28), transfer from another county awaiting commitment beds (444), violation of after care (10), violation of community control (79), and violation of probation (45). Subsection 985.686(6) requires Respondent to calculate the monthly assessment against Petitioner with input from the County. Respondent allowed input from the counties during rulemaking workshops but has thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation. Respondent classifies each of the nine challenged categories as predisposition care. However, the data that Respondent provides to the County each year does not include final disposition dates. The omission of disposition dates from the information that Respondent provides to Petitioner effectively thwarts the County's ability to provide meaningful input into the calculations that Respondent performs pursuant to Subsection 985.686(6). The absence of disposition dates precludes the County from independently auditing, or challenging, the assessments that Respondent calculates pursuant to Subsection 985.686(6). The absence of disposition dates also deprives the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that Respondent determined were predisposition care. Respondent claims the allegation of misclassification is a challenge to agency policy that is not subject to the due process requirements prescribed in Chapter 120. To the contrary, the allegation raises a disputed issue of fact over the correct disposition date, and that issue is not infused with agency policy or agency expertise. The correct disposition date can be determined through conventional means of proof, including public records. Although Respondent presumably uses that information to determine a disposition date, Respondent does not make the information available to the County. Even if a determination of the disposition date were solely a policy issue, it is not exempt from the due process requirements prescribed in Subsection 120.57(1). One of the principal purposes of a proceeding conducted pursuant to Subsection 120.57(1) (a 120.57 proceeding) is to encourage responsible agency policymaking. During this proceeding, Respondent did not explicate, by conventional methods of proof, any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days. Nor did Respondent explicate any evidential predicate to support a finding that the classification is infused with agency expertise and entitled to great deference. The only standards that Respondent articulated during the evidentiary hearing is that agency employees exercise discretion pursuant to instructions from agency management. Respondent also considers open charges against juveniles as a basis for distinguishing predisposition utilization days from post-disposition utilization days. If, for example, a juvenile is in secure detention awaiting placement after final disposition of one charge but has another open charge, Respondent classifies that utilization day as predisposition care. The trier-of-fact finds that secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care. The record does not disclose how many, if any, of the 47,215 utilization days allocated to Petitioner involve open charges. Respondent did not explicate any intelligible standards to guide the exercise of agency discretion in using open charges as a basis for distinguishing predisposition utilization days from post-disposition utilization days. Nor did Respondent explicate an evidentiary basis to support a finding that the relevant classification is infused with either agency expertise or agency policy and entitled to deference. Petitioner acknowledges that some of the nine categories require final disposition before a juvenile can be placed in secure detention prior to residential placement. For example, data identification codes for offenses such as contempt of court, detention orders, pick up orders, prosecution previously deferred, violation of after care, violation of community control, and violation of probation require a final disposition. The omission of a final disposition date from the data available to Petitioner deprives Petitioner of the ability to provide input to Respondent to correct the assessments that Respondent calculates pursuant to Subsection 985.686(6).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order assessing Petitioner for the costs of predisposition care in the County using utilization days determined in accordance with this Recommended Order and meaningful input from the County. DONE AND ENTERED this 10th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 March, 2008.
The Issue This case arises out of a challenge by the Petitioners to the validity of Rule 33-3.02(6), Florida Administrative Code; Policy and Procedure Directive 2.02.13, and Union Correctional Institution Operating Procedure No. 81-82. The Petitioners specifically challenge the validity of those portions of the above- provisions relating to the issue of clothing to the inmates. At the final hearing, Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers, testified on their own behalf and also called as witnesses Charles Connors and Paul Gunning. Petitioners offered and had admitted into evidence five exhibits. Respondents called no witnesses and offered no exhibits into evidence. The Petitioner S. B. Ridley, did not appear at the formal hearing. The Hearing Officer was informed by one of the other Petitioners at the formal hearing that Mr. Ridley had been transferred to Polk Correctional Institution. Mr. Ridley was given due notice of the hearing held on February 17, 1984, and has filed no pleading or motion with the undersigned Hearing Officer seeking either a continuance or other relief. The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact The Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers are inmates incarcerated at Union Correctional Institution, Raiford, Florida. On November 5, 1982, as Petitioner Rogers was being released from disciplinary confinement, he entered the laundry to obtain another pair of state issued pants, socks and underwear. The name tag was coming off of his jacket and because of this it was confiscated. He asked for another jacket and was told he could not be issued one. He was eventually issued another jacket which was also confiscated. For a period of time, Petitioner Rogers had no jacket for those times when he was required to walk and be outside in the cold. The laundry manager at Union Correctional Institution is responsible for the issue of all clothing to the prisoners. The manager follows Union Correctional Institution Operating Procedure 81-82 in issuing clothing an Union Correctional Institution. That operating procedure provides in relevant part: 81-82.1 Purpose This memorandum is published as a guide in the issuance of inmate clothing, and the providing of laundry facilities for the inmate population. 81-82.2 Authority Florida Statutes 945.21, 944.09 section 20.315 Department of Corrections Administrative Rules, Chapter 33-3.02(6). 81-82.3 Clothing Issue Each inmate shall be issued the following clothing items: 3 each Blue Shirts 3 pairs Blue Trousers 1 each Web Belt 1 pair Boxer Shorts 1 pair Socks 1 pair Shoes, High Top. Inmates assigned to the Food Service Departments and Canteens shall be issued one additional suit of clothing because of their having to work on Sundays, enabling them to change clothing daily. 81-82.6 Special Issue Inmate Jackets are issued in October of each year and picked up for storage in April. An inmate may have his jacket laundered on any Friday. Hats, caps, and other special clothing items are issued to the Department Supervisor for distribution to the work squad. The Supervisor is responsible for those items of issue. 81-82.7 Miscellaneous Information The Laundry Manager/Clothing Officer shall maintain a record of the various clothing items issued to each inmate. If clothing issue is abused, either through neglect or by intent, the officer will initiate appropriate action. The official inmate uniform throughout the institution is issue blue shirt and trousers. Inmates assigned to the following areas are issued white shirts and trousers in lieu of the regular blue uniform: Food Service Administration Building Workers Main Gate Workers Utility Man on each Close Supervision Squad (For Identification) Canteen Workers. Each inmate who turns in a jacket (at the end of winter) shall be issued a pair of hemmed walking shorts for wearing on the athletic field or after hours in the housing area. The manager was not aware of and has not utilized Policy and Procedure Directive 2.02.13, in issuing clothing at Union Correctional Institution. That policy and procedure directive provides in relevant part: AUTHORITY: Section 20.315, 944.09 and 945.21, Florida Statutes Department of Corrections, Administrative Rules, Chapter 33-3.02(6) PURPOSE: The purpose of this Directive is to establish a uniform procedure for issuing inmate clothing and linens. This will enable the Department to control the costs of clothing and linens in a more economical manner. GENERAL: Appropriate internal measures will be taken by each operating location to implement the provisions of this Directive. It is the Department's expressed intent that all inmate clothing be appropriately fitted and suited for the environment and that Departmental facilities provide sufficient laundering facilities to ensure that appropriate health standards are maintained. The clothing and linen will be exchanged on a one for one basis after the initial issue. Should an inmate intentionally damage or destroy his/her uniforms, appropriate action should be taken by the Superintendent to reimburse the State, if possible. It is imperative that the custodial staff be well informed of the provisions of this Directive and any exceptions or deviations from this Policy set forth will have to be approved by the Regional Director. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing and linen issued to him. Maximum Clothing Issue - Blues and Whites Items Quantity Shirts 3 for 5 day post 5 for 7 day post 3 for 5 day post 5 for 7 day post Maximum Clothing Issue - Other Items Items Quantity Undershorts 3 pairs Undershirts/T shirts 3 Socks 2 pairs (changed daily) Belt with Buckle 1 Shoes 1 pair Jacket (winter only) 1 Long underwear (winter only for outside detail) 2 Regions III, IV and V may substitute two sweatshirts for two pairs of long underwear for winter use. E. Clothing - Special Items such as food service linens, coverall's aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will, on recommendation and justification by department head, determine what items are to be purchased and issued to inmate. All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be the responsibility of the superintendent to establish a laundry schedule for these items. Only those inmates who work outside for eight hours each day are issued long underwear during the winter months. The inmates do not go outside when the temperature is below 40 degrees. The laundry does not issue raincoats to the inmates. The raincoats are under industry inventory and each department can draw raincoats out of that inventory. The raincoats are paid for by the department drawing them out and the work supervisor from that department issues them to the inmates. Raincoats are sold in the canteen at Union Correctional Institution. The laundry stocks long underwear but no longer stocks T-shirts. The laundry does not stock sweatshirts. There are two types of blue uniforms. The laundry issues coveralls to special jobs but no coveralls are issued to inmates personally. It is within the laundry manager's discretion as to when he issues new clothing as opposed to used clothing. It is the laundry manager's responsibility to remain within his budget for the year. T-shirts are not included in the list of clothing issue items in Union Correctional Institution Operating Procedure 81-82. This may be due in part to budget restrictions. T-shirts are included in the "maximum clothing issue" list in Policy and Procedure Directive 2.02.13. Practically every inmate in Union Correctional Institution is required to go outside in order to go to work or to school. The inmates must also go outside in order to go to the chow hall or the clinic. The west unit is approximately a 4 or 5 minute walk from the chow hall. Union Correctional Institution Operating Procedure No. 81-82 is signed and issued by the Superintendent of UCI and cites as its authority Florida Statutes 945.21, 944.09, Section 20.315, and Rule 3303.02(6), Florida Administrative Code. The Respondent has not contested the fact that the operating procedure was not promulgated in accordance with the requirements of Section 120.54, Florida Statutes. There was no evidence presented as to the procedures followed in adopting the Policy and Procedure Directive 2.02.13.
The Issue Whether Respondent's proposed decision to award a contract to The Next Step Adolescent and Youth Community Center, Inc., pursuant to RFP No. K8025 is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On April 27, 1999, Respondent, Department of Juvenile Justice (Department), issued and advertised RFP No. K8025, which was a request for proposals (RFP) for a 16-bed, non-secure detention program. Petitioner, Non-Secure Detention Home, Inc. (Non-Secure Detention Home) and The Next Step Adolescent and Youth Community Center, Inc. (Next Step) submitted proposals. Another provider submitted a proposal but it was rejected as nonresponsive and was not evaluated. On June 1, 1999, the Department posted the tabulations for the RFP, recommending the contract be awarded to Next Step. Next Step received the highest number of points, 248.66, and Non-Secure Home Detention ranked second with 209.33 points. Non-Secure Detention Home filed a protest on June 3, 1999, and an Amended Notice of Protest on July 1, 1999. There were three evaluation committee members: Anna Bustamante, Kenneth Williams, and Allen Hepburn. Mr. Williams is a community youth leader supervisor with the Department. Mr. Hepburn is a juvenile probation officer supervisor, who supervises the court unit for the Department. The RFP provides that the program is to be operated at a provider-leased or owned facility. Next Step indicated in its proposal that Next Step would be leasing two homes. One of the homes was to be leased from Reginald Rucker, who was the president and a member of the Board of Directors for Next Step. A copy of the lease was included with the proposal and stated that Reginald Rucker and his wife, Charlene Rucker, were to be the landlords. There was no indication in Next Step's proposal that the facility was owned by anyone other than Reginald and Charlene Rucker. The property is described as "Lot 9, in Block 125 of Leslie Estates Section Fourteen, According to the Plat thereof, as Recorded in Plat Book 116, at Page 95 of the Public Records of Dade County." In May 1996 the property was sold by the Veteran's Administration to Reginal Rucker, Charlene Rucker, and Connie White. Connie White is an employee of the Department, and a former employee at Non-Secure Detention Home. Ms. White's job duties do not include determining the facilities in which juveniles will be placed. For a two-week period, Kenneth Williams supervised Ms. White. At the time that the proposals were being evaluated, Mr. Williams was not supervising Ms. White nor was he aware that Ms. White had any interest in the property proposed to be leased by Next Step. Allen Hepburn knows Connie White. He also knows Connie White's sister, Gladine White, both socially and professionally. Mr. Hepburn is acquainted with Gladine White's husband. Mr. Hepburn attends the same church as Connie White and Gladine White. He does not know either Reginald Rucker or his wife, Charlene Rucker. Mr. Hepburn was not aware that Connie White had any interest in the property which Next Step proposed to use if it received the contract. The RFP set out the proposal award criteria. The proposals were to be evaluated on the statement of work, organizational capability, management approach, and past performance. The evaluation areas were weighted with 65 percent for statement of work, 10 percent for organizational capability, 15 percent for management approach, and 10 percent for past performance. The percentage used in the evaluation of past performance was subdivided as follows: Historical Implementation 1% Educational achievements 5% Recidivism rates 2% QA evaluation 2% Community involvement 1% CMBE subcontracting 1% The RFP stated: Offers without prior Department contract experience shall receive a rating based on the average score of the other competing offers in evaluating their proposals in accordance with stated criteria. This provision of the RFP was not protested within the time frames provided in Section 120.57(3), Florida Statutes, and the RFP. Fifty points was the maximum number of points which could be awarded for past performance. The past performance evaluation consisted of five areas which could receive from zero to ten points. The evaluators were given a scale by which to award points. If the proposal did not address an area, zero points would be awarded. If the proposal response were deemed unsatisfactory, two points would be awarded. Four points would be awarded for a poor proposal response. An adequate proposal response would be worth six points. If the proposal was evaluated to be very good, it would receive eight points. An excellent proposal response would be awarded the maximum of ten points. For the past performance section, Non-Secure Detention Home garnered 12 points from Mr. Williams, 21 points from Ms. Bustamante, and 26 points from Mr. Hepburn for a total of 59 points. Next Step did not have previous experience with the Department. Evaluator Hepburn gave Next Step a total of two points for the past performance section. Ms. Bustamante awarded Next Step ten points for the past performance portion. Mr. Williams gave Next Step a total of six points for past performance. The RFP required that Next Step be given the average of the other competing proposals because Next Step did not have previous experience. Non-Secure Detention Home had the only other competing proposal for the solicitation. Eric Stark, a contract manager for the Department, attempted to apply the provision in the RFP by averaging the scores that each of the evaluators had given Non-Secure Detention Home for past performance and using that average in computing the total scores from each of the evaluators. The average score given to Non-Secure Detention Home was 19; thus a rating of 19 was applied in the evaluation of the past performance of Next Step in lieu of the original scores given by the evaluators. The RFP requires the following: The PROVIDER shall comply with the Department of Juvenile Justice, Office of the Inspector General's Statewide Procedure on Background Screening for Employees, PROVIDERS, and Volunteers. The PROVIDER agrees, to comply with the requirements for background screening as mandated in Section 985.01, Florida Statutes. Failure to comply with the Department's background screening procedure could result in cancellation of the contract. Reginald Rucker was a former employee of Non-Secure Detention Home. Mr. Xavier Moore, the Executive Director for Non-Secure Detention Home, made a request to the Department of Juvenile Justice to do a preliminary FCIC/NCIC and DHSMV screening check on Mr. Rucker. According to Mr. Moore the screening did not indicate a problem with Mr. Rucker being employed by Non-Secure Detention Home. Mr. Rucker was employed with Non-Secure Detention Home from 1997 until June 10, 1999. On October 4, 1995, an Order to Seal Records Pursuant to Section 943.058, Florida Statutes, and Florida Rule of Criminal Procedure 3.692 was issued in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, sealing all records pertaining to Reginald Rucker's arrest on January 13, 1990, by the Florida Highway Patrol for cocaine and marijuana possession. The order stated that Mr. Rucker was not adjudicated guilty of charges stemming from the arrest. The RFP did not require the proposers to submit a financial statement or audit; however, the evaluators were asked to rate the proposals based on whether an acceptable financial statement or audit was included. Neither Next Step nor Non-Secure Detention Home submitted a financial statement or audit. Next Step received the following points for its non- existent financial statement: eight points from Mr. Hepburn; zero points from Mr. Williams; and zero points from Ms. Bustamante. For its nonexistent financial statement Non-Secure Detention Home received the following scores: six points from Mr. Hepburn; a N/A which equated to zero points from Mr. Williams; and six points from Ms. Bustamante.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a 16-bed, non-secure detention program to The Next Step Adolescent and Youth Community Center, Inc. and dismissing the protest of Non-Secure Detention Home, Inc. DONE AND ENTERED this 14th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of September, 1999. COPIES FURNISHED: Walter S. Pesetsky, Esquire Pesetsky & Zack, P.A. 1367 Northeast 162nd Street North Miami Beach, Florida 33162 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in administrative confinement, he did not receive any incentive gain time during that period. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months. In a prior period of administrative confinement, he claims he was not told why he was there officially. Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time, (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed. The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00 P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.
The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
Findings Of Fact The Respondent, Lester Bishop, was employed as a Correctional Officer at Union Correctional Institution from March 20, 1981, to April 1, 1986. Union Correctional Institution (UCI) is a facility which houses inmates ranging in custody levels from minimum to close. In December of 1981, the Respondent was given a copy of the rules of the Department of Corrections. At this time he acknowledged that he was responsible for compliance with these rules. In late March and early April, 1986, the Respondent was scheduled to work the first shift at UCI beginning at 12:00 midnight and ending at 8:00 a.m.. The supervisor for this shift was either Lieutenant R. L. Weiland or Lieutenant S. E. Stafford, depending upon the day of the week. On March 23, 1986, the Respondent called Lieutenant Weiland at Union Correctional Institution at 12:30 a.m., requesting and receiving sick leave for the remainder of this shift. On March 24, 1986, the Respondent did not report to work, and he did not contact the shift supervisor to request leave. As a result, he was placed on unauthorized leave without pay status for this day. On March 25, 1986, the Respondent called his supervisor, requesting and receiving eight hours sick leave for this day. On March 26 and 27, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. March 28 and 29, 1986, were the Respondent's regularly scheduled days off. From March 30 until April 2, 1986, the Respondent neither called his supervisor nor reported for work. He was given unauthorized leave without pay status for these days. On April 2, 1986, the Superintendent of Union Correctional Institution, T. L. Barton, sent the Respondent a letter informing him that he had abandoned his position at Union Correctional Institution, and that he was dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Lester Bishop, from his position as Correctional Officer at Union Correctional Institution, for abandonment, pursuant to Rule 22A 7.010(2), Florida Administrative Code, effective March 25, 1986. THIS Recommended Order entered on this 9th day of December, 1986, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gilda H. Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986. Ernest A. Reddick, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lester Bishop, in pro per Box 1341 Starke, Florida 32091
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
