The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, 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 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent discriminated against Petitioner based on a perceived disability and retaliated against her in violation of Section 760.10, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent at the Liberty Correctional Institution (LCI). She was hired as a Correctional Officer in LCI's Security Department effective December 21, 1990. In February 1991, Petitioner was counseled regarding her failure to report for duty or to notify the institution of an intended absence. On April 1, 1996, Petitioner's supervisor counseled her regarding her failure to report to work in a timely manner. Petitioner had been tardy to work three times in March 1996. On May 30, 2001, Respondent counseled Petitioner regarding her excessive absenteeism. Petitioner had five unscheduled absences. Respondent promoted Petitioner to Correctional Officer Sergeant effective November 1, 2001. In October 24, 2003, Respondent gave Petitioner an oral reprimand for abuse of sick leave. Petitioner had developed a pattern of absenteeism in conjunction with her regular days off. In December 2004, Respondent gave Petitioner a written reprimand. The reprimand was based on Petitioner's failure to follow oral and/or written instruction, continued absenteeism, and abuse of sick leave. On July 7, 2007, Petitioner sustained an on-the-job injury. The injury was diagnosed as carpel tunnel syndrome. Petitioner underwent surgery for this condition in December 2007. On or about April 8, 2008, Petitioner reached statutory Maximum Medical Improvement (MMI). Petitioner had a Permanent Impairment Rating (PIR) of six percent. On April 15, 2008, a functional capacity evaluation revealed that Petitioner was able to perform light work with lifting restrictions. The restrictions prevented Petitioner from performing the essential functions of a Correctional Officer. Pursuant to policy, Respondent immediately conducted a job search. At that time, a Clerk Typist Specialist position was available at LCI. Petitioner was qualified to perform that job. She submitted an application for the position on or about June 5, 2008. In a letter dated June 10, 2008, Respondent offered Petitioner the Clerk Typist Specialist position in LCI's Classification Department. On June 26, 2008, Petitioner signed an Acknowledgement, accepting a voluntary demotion from Correctional Officer Sergeant to Clerk Typist Specialist and stating that she agreed to perform the duties of the new position to the best of her ability. Petitioner returned the Acknowledgement to Respondent. At the same time, Petitioner questioned whether she would be able to perform the duties of a Clerk Typist Specialist due to her carpel tunnel condition. In a letter dated June 27, 2008, Respondent requested that Petitioner take an essential functions form to a July 8, 2008, doctor's appointment. Respondent wanted the physician to complete the essential functions form and return it to Respondent by July 18, 2008. The purpose of the evaluation was to determine whether Petitioner was able to perform as a Clerk Typist Specialist. On or about July 24, 2008, Petitioner advised Respondent that she was going to have a nerve conduction test on July 30, 2008. She advised Respondent that she would provide the results to Respondent as soon as possible. In a letter dated August 20, 2008, Respondent advised Petitioner that, pending the results of a pre-determination conference, Petitioner could be dismissed from her employment as a Correctional Officer effective September 11, 2008. Respondent proposed this action because Petitioner had not provided Respondent with a doctor's report regarding Petitioner's ability to perform the essential functions of a Clerk Typist Specialist. A pre-determination conference was held on August 27, 2008. In a letter dated September 12, 2008, Warden Douglas advised Petitioner that she would not be dismissed because she had provided medical documentation of her ability to perform the position of a Clerk Typist Specialist. Petitioner began working in that capacity on September 19, 2008. In December 2008, Petitioner sent an e-mail to Respondent's Secretary, Walt McNeil. In the e-mail, Petitioner complained that Respondent had not returned her to work as a Correctional Officer Sergeant after being medically cleared to work in that capacity. There is no persuasive evidence that Petitioner had been medically released to work as a Correctional Officer in December 2008. Additionally, there is no evidence that Petitioner had made a request or filed an application to return to work as a Correctional Officer at that time. Respondent subsequently requested Petitioner's doctor to provide an updated opinion regarding Petitioner's ability to work as a Correctional Officer. On or about January 15, 2009, Petitioner's doctor approved Petitioner's return to work as a Correctional Officer with no restrictions. In a memorandum dated February 9, 2009, Respondent advised Petitioner that she was medically cleared to work as a Correctional Officer but that she would need to apply for openings. The memorandum stated that Petitioner had to be reprocessed as a Correctional Officer, including having a drug test and physical examination. The February 9, 2009, memorandum also reminded Petitioner that she would be required to serve another probationary period if she received an appointment as a Correctional Officer. There is no promotion track between the Security Department and the Classification Department. Petitioner applied for four Correctional Officer positions between February and May 2009. Two of the applications were for positions located at LCI. The third application was for a position at Calhoun Correctional Institution (CCI). The fourth application was for a position at Franklin Correctional Institution (FCI). On February 10, 2009, Warden Chris Douglas at LCI declined to interview or rehire Petitioner as a Correctional Officer for position number 7002037. Warden Douglas made this decision based on Petitioner's previous and current employment history showing attendance problems. Petitioner's testimony that she never applied for this position is not persuasive. Petitioner's application for a Correctional Officer position at FCI was never completely processed. In a letter dated April 9, 2009, Respondent advised Petitioner that she needed to provide additional information to support her application for employment in position number 70039564 at FCI. Petitioner did not respond to the request because she decided that she did not want to commute to work so far from her home. On April 23, 2009, Petitioner received her Performance Planning and Evaluation. Her direct supervisor, Kim Davis, Respondent's Classification Sentence Specialist, rated Petitioner as performing "Above Expectation" in all applicable categories. On April 30, 2009, Petitioner requested Warden Douglas to let her complete her mandatory firearm training because her weapons qualification was about to expire. Warden Douglas promptly responded that she could be scheduled to take the next firearms class. Petitioner re-qualified with specified weapons on May 11, 2009. On May 28, 2009, Petitioner was interviewed for a position as a Correctional Officer at LCI. She gave correct and appropriate answers to all questions during the interview. Even so, Warden Douglas decided not to hire Petitioner due to her past and current attendance problems. Warden Adro Johnson did not give Petitioner an interview for Correctional Officer position number 70041507 at CCI. He made his decision in July 2009 based on information indicating that Petitioner was already employed at LCI. In July 2009, Respondent's supervisor counseled Petitioner regarding her attendance. She had been absent for four unscheduled absences in the past 90 days. She had missed approximately 40 work days or eight weeks of work during the 11 months she was in the position of Clerk Typist specialist. On August 3, 2009, Petitioner filed her initial complaint with FCHR. Ms. Davis was the person who trained Petitioner as a Clerk Typist Specialist. Petitioner's job included filing documents related to approval or disapproval of inmate visitation. The original documents were sent to the inmates. Respondent was supposed to file copies of the documents in the inmates' classification files. During the time that Petitioner worked as a Clerk Typist Specialist, Ms. Davis had to counsel Petitioner approximately ten times regarding the filing of the inmate visitation documents. Ms. Davis stressed the importance of Petitioner completing her work and filing the documents in a timely manner. Additionally, Ms. Davis noted that Petitioner occasionally failed to properly file the documents. Petitioner was trained to remove duplicate copies of documents from inmate files. Duplicate copies of documents could be shredded. Petitioner was not instructed to shred the inmate visitation documents. If the documents were not legible, another copy was supposed to be made, using the copy machine to darken the print. Willie Brown is one of the Assistant Wardens at LCI. His office was close to Petitioner's work area. Assistant Warden Brown occasionally counseled Petitioner regarding the need to file the papers on her desk. On August 18, 2009, Assistant Warden Brown observed a large amount of paperwork that Petitioner had not filed. Once again, Assistant Warden Brown told Petitioner that she needed to file on a timely basis. He explained that Petitioner could file on the schedule she developed, but that it might be necessary to file everyday. Later on August 18, 2009, Heather Barfield, a Correctional Sentence Specialist, observed Petitioner feeding a large amount of paper into a shredder, causing the shredder to jam. Ms. Barfield subsequently attempted to clear the shredder jam and noticed that the papers belonged in the inmates' files. Ms. Barfield reported her observations to Assistant Warden Brown and Cynthia Swier, the Classification Supervisor. Assistant Warden Brown confirmed that the partially shredded documents were legible and should have been filed. Ms. Davis was informed about the shredding incident when she returned to work the following day. Ms. Davis verified that the shredded documents had been legible and were not duplicates of documents in the inmates' files. The greater weight of the evidence indicates that Petitioner intentionally shredded the documents in order to clear her desk. Petitioner's testimony that she was shredding them because they were not legible is not credible and contrary to more persuasive evidence. On August 26, 2009, Respondent terminated Petitioner employment as a Clerk Typist Specialist. Because she was on probationary status, she had no appeal rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2010. COPIES FURNISHED: Gertrude Berrieum 5032 Martin Luther King Road Bristol, Florida 32321 Todd Evan Studley, Esquire 2601 Blair Stone Road Tallahassee, Florida 32399 Walter A. McNeil, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Aubrey Minor was certified by the Criminal Justice Standards and Training Commission on April 24, 1986, the day the Commission issued respondent a certificate, No. 23-86-002-01. In the late summer of 1988, Aubrey Minor worked as a correctional officer in the Escambia County Jail. On September 1, 1988, McArthur Young, an inmate, was so slow leaving the visiting area that respondent locked him in and left, in order to avoid further delaying escorting other inmates to their cells. When he returned to retrieve the recalcitrant inmate, and while he was escorting him down the corridor that runs by the control room, he repeatedly asked him his name. Exasperated at the inmate's failure to tell him, respondent Minor grabbed McArthur Young's arm in order to read the name written on the wrist band he wore. When Mr. Young pulled his arm away, Mr. Minor grew still angrier, and swung with full force, hitting McArthur Young in the jaw with the jail keys. Although only two six-inch brass keys were on the stainless steel ring when respondent hit the inmate, each weighed a pound, according to uncontroverted testimony. Shouting by both men had attracted the attention of other Escambia County Jail personnel. Correctional officer Michael D. Miles saw respondent swing while the inmate's arms hung at his sides. Reacting threateningly to the blow, McArthur Young stepped toward respondent Minor. By this time, Corporal Frank Mayo, who had reached the spot where the men stood, stepped between them. While another officer took respondent in hand, Corporal Mayo led the inmate to the infirmary, where the nurse gave him an ice pack. His jaw was red and slightly swollen but the tooth he claimed was loose did not seem loose to the nurse. In the ensuing internal investigation, respondent lied to his superiors, although he conceded that "he got a little bit out of control." T.37. After the investigators concluded that his use of force had not been justified, Escambia County terminated respondent's employment. Jail policy forbids the use of force, even in response to a verbal threat.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate. DONE and ENTERED this 1st day of June, 1990, in Tallahassee, Florida. COPIES FURNISHED: Abrey Minor 901 West Massachussetts Lot #17 Pensacola, FL 32505 Joseph S. White, Esquire Department of Law Enforcement Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990.
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for treatment, and he also told medical personnel that he had fallen from his bunk. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached Ms. Florich in an attempt to get their stories straight. Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2006.
Findings Of Fact The Respondent Eric Runge holds an inactive correctional officer certificate bearing number 502-2839. On January 9, 1983, the Respondent Runge was employed as a correctional officer at the Hendry Correctional Institute. On that date, the Respondent and four other officers were involved in the movement of a prisoner, Raymond Russell Ford, from one confinement area to another. Prior to the transfer, a supervisor, Lt. McNaughton, met with the officers involved in the transfer and explained to them that he wanted to see the inmate hurt. The officers, including the Respondent, went to the inmate's cell and found him asleep. Ford was awakened by one of the officers and handcuffs and leg irons were secured to his hands and feet. During the transfer, the inmate was placed on the ground several times, here he was struck and kicked by three of the officers. The Respondent was approximately 20 feet in front of the inmate when this occurred. The Respondent and another officer helped the inmate to his feet and turned him over to Sergeants Thompson and DeSilvestri. The inmate was tripped repeatedly by the two officers. This was visible to the Respondent since he was approximately 15 feet behind the inmate and escorting officers. At no time did the inmate fight with the officers or physically resist when they tripped and hit him. When the inmate arrived at his assigned cell, the Respondent and Officer Wilkerson contacted Betty White, a medical technician, in order to alert her of possible injuries to the inmate. Ford's injuries were not serious and consisted of multiple abrasions and scrapes to the face, legs and arms. When this incident came to the attention of prison authorities, all the officers involved were requested to give statements under oath concerning the transfer of the inmate. The Respondent was aware that he was required by Department of Corrections rules to truthfully answer inquiries made by the prison inspector. However, the Respondent admitted violating Department rules by falsifying his report to the prison inspector by denying that excessive force was used during the transfer of the inmate. This false report was made as part of an unsuccessful attempt by the officers involved to cover up the incident. As a result of this incident, several officers lost their jobs at Hendry and the Respondent's effectiveness as a correctional officer has been seriously reduced due to his role in the transfer and subsequent cover up. The involved officers are labeled as "dirty employees" which limits their ability to effectively discharge their duties inside the prison.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner suspending the certificate of the Respondent Eric C. Runge for three months. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301 Janet E. Ferris, Esquire General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Eric C. Runge 1643 North Flossmore Road Fort Myers, Florida 33907 Robert R. Dempsey, Executive Director, Dept. of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 83-2302 CJSTC CASE NO. CORO18-0274 ERIC C. RUNGE Certificate Number: 502-2839 Respondent. /
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent, in her capacity as a corrections officer for the alleged violation of Section 943.1395(7), Florida Statutes (2005)?1
Findings Of Fact Respondent was certified by the Commission on November 20, 1997, and was issued Correctional Certificate No. 176344. On November 22, 2005, Investigator Sally Cole was a law enforcement officer with the Jefferson County Sheriff's Office (Sheriff's Office) headquarted in Monticello, Florida. In her capacity as a law enforcement officer she had authority to serve arrest warrants. While Investigator Cole was in her office on the date at issue, the dispatcher for the Sheriff's Office called to tell Investigator Cole that there was a "lady in the lobby" of the office and jail complex related to the Sheriff's Office, who had an outstanding warrant pending against her. The woman referred to was Respondent, who was in Monticello, Florida to visit her husband, who was incarcerated at the Jefferson County Jail. Investigator Cole went to obtain the warrant which had been issued from Gadsden County, Florida. When Investigator Cole confirmed the information concerning the warrant issued by Gadsden County for Respondent's arrest, Warrant Number 05-717CFA, referring to a felony, Investigator Cole went to find Respondent. Investigator Cole located Respondent who was leaving the lobby of the Sheriff's Office complex and walking to the parking lot. Investigator Cole approached Respondent in the parking lot and explained information concerning the warrant. When Investigator Cole approached the Respondent, she told the Respondent that she was Investigator Sally Cole. When Investigator Cole tried to explain the information concerning the Gadsden County warrant to Respondent, the Respondent in reply continued to say that "she had never gotten in any trouble." Investigator Cole told Respondent that the Respondent was under arrest in view of the warrant from Gadsden County. Respondent got into her car. Two other persons were in the Respondent's automobile. They were her children. The children were ages 12 and 15. Investigator Cole told the Respondent to get out of the car. Respondent refused. Respondent started to become belligerent. Eventually Respondent got out of the car. By that time the Sheriff's Office dispatcher had made contact with other law enforcement officers, deputies, working for that agency. This contact was made because of a concern that Respondent was not being cooperative with Investigator Cole. Those persons who were contacted were Investigator Christopher Smith and Corporal Gerald Knecht. After Respondent got out of her car, Investigator Cole took her by the elbow to guide her inside the complex to be booked under the warrant issued by Gadsden County. Respondent started screaming at the deputy "to get her hands off of her." At that point the other deputies were in attendance to assist Investigator Cole. Respondent was not cooperating and tried to pull away from Investigator Smith when he was assisting in the escort. Investigator Smith told Respondent to cooperate and stop resisting. His identity was established by the badge on his belt which would remind Respondent that he was a law enforcement officer. During the incident, with her car keys in her hand and the attempt by the deputies to control her hands, Respondent in jerking away cut Corporal Knecht, either with the keys or her fingernails. This caused a minor laceration to the deputy. By the time the Respondent was brought inside the complex, she was "kind of dropping her weight, not wanting to walk and flailing her arms." This is understood to mean that someone had to support Respondent's weight. In addition Respondent was swinging her arms around, not with the intent to strike anyone, but snatching them away. Respondent was very upset and belligerent; not wanting to cooperate. Once in the lobby to the Sheriff's Office, Respondent began to be more difficult by trying to sit down and impede the escort. As the corridor to the jail was approached, then Corporal Virgil Joyner of the Jefferson County Sheriff's Office came to assist in controlling Respondent, in an effort to escort her to the area where she would be booked. Corporal Joyner had heard the commotion from where he was located in the booking area of the jail. Respondent was being very loud. He observed the struggle that the other deputies were having in trying to maintain control and advance Respondent into the jail portion of the Sheriff's Office. He got behind the Respondent and started pushing her in the direction of the jail portion of the Sheriff's Office. Finally, Respondent was placed in secure confinement in the jail part of the Sheriff's Office. Later when Investigator Cole went back to talk to Respondent, she apologized and said she was upset and again stated that she had never been in trouble and that she had not stolen anything. This refers to the nature of the arrest warrant from Gadsden County, which was in relation to allegations of theft. Because of the difficulties that the officers had experienced in trying to serve the warrant and book the Respondent, Investigator Cole charged the Respondent with resisting arrest with violence. That charge forms the basis for the present case.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 943.1395(7), Florida Statute, suspending the Respondent's correctional officer certificate for a period of 20 days, to be followed by one year probation with appropriate conditions for successfully concluding the probationary period. DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2007
The Issue Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a correctional officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Dennis W. Zeighler, holder of Corrections Certificate Number 145432 issued March 25, 1994. Respondent was employed as a sworn Corrections Officer with the Hamilton Correctional Institution (HCI) from March 25, 1994 to September 22, 1994. During his employment with HCI, Respondent came to know Luis Nieves, an inmate at the institution. Nieves offered to sell Respondent a gold Seiko watch for $15. Respondent was uncertain as to whether he should buy the watch, but accepted it from Nieves and placed it in his desk drawer at HCI. Later, on the way home, Respondent mailed a money order for $15 to Nieves in an envelope bearing the return address of Nieves’ sister-in-law. Following discussion that evening with his brother, also a correctional officer, Respondent became concerned about the transaction. Respondent consulted his copy of the Department of Corrections Policy Manual and realized he wanted no part of the transaction. Upon his return to work the next morning, Respondent removed the watch from his desk and returned it to inmate Nieves. Respondent told Nieves that the transaction was "not right" and that he, Respondent, did not want to lose a job that he loved. Respondent also told Nieves to keep the money.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of unprofessional conduct and placing his certification on probationary status upon such reasonable conditions and for such reasonable period of time as shall be determined appropriate by The Criminal Justice Standards and Training Commission. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dennis W. Zeighler 1301 Campbell Street Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
Findings Of Fact On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist. While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face. Officer Winkle then grabbed Mr. Kitchens and put him on the floor. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed. DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992.
