The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and ENTERED this 16th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1984. COPIES FURNISHED William W. Tharpe, Jr., Esquire Department of Insurance Larson Building Tallahassee, Florida 32301 Dock Blanchard, Esquire Post Office Box 24 Ocala, Florida 32678 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 21st day of August, 1996.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 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 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether it is in the public interest to place Petitioners, Booz-Allen and Hamilton, Inc., on the State of Florida Convicted Vendor List maintained by Respondent, State of Florida Department of Management Services (the Department) Section 287.133, Florida Statutes (Supp. 1996).
Findings Of Fact The parties stipulated to the facts, as follows: On August 19, 1993, Petitioner was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Petitioner pled guilty in the U.S. District Court for the Middle District of North Carolina to two counts of filing false claims in violation of 18 U.S.C. section 287. The conviction related to time charging irregularities on two subcontracts to the United States Environmental Protection Agency. On February 25, 1994, Petitioner properly reported this conviction in its proposal to the Lee County Board of Commissioners. At the time the plea was entered, Petitioner paid to the United States $1,638,000. This included a $1,000,000 criminal fine, and $488,000 in civil damages, and $150,000 to reimburse EPA’s Office of the Inspector General for the costs of the investigation. The government estimated that the amount of improper charges was approximately $200,000. Petitioner’s cooperation with the EPA included voluntarily providing a wide array of information to EPA. Employees from Petitioner’s Finance and Contracts Department met with EPA investigators and auditors to explain Petitioner’s accounting system. Petitioner assisted EPA by making employees available for interviews. Petitioner voluntarily provided documents and other information to EPA. Petitioner fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Petitioner provided information as requested. No other persons or affiliates were charged with public entity crimes in relation to these matters. As a responsible government contractor, Petitioner has taken steps to prevent actions like those that formed the basis for its guilty plea from recurring. These steps and the ethical history of the company are listed in the stipulation and settlement agreement attached as Appendix A and are incorporated herein. Petitioner properly reported its plea to the Lee County Board of Commissioners and provided additional, extensive information concerning its guilty plea and related matters to the Respondent on April 5, 1994 and June 23, 1995. Petitioner’s presence in the market adds to competition in Florida markets for the transportation and consulting in solving state/public sector problems and in implementing their solutions. Petitioner’s commercial freight practice is the foremost management consultant to port authorities in the United States. Petitioner’s depth of knowledge and understanding of port operations, management, and planning have made Petitioner the consultant of choice to port authorities throughout the country. Specific projects are outlined in the stipulation and settlement agreement and are incorporated herein. In addition, Petitioner, due to its over 80 years of experience in both public and private sector (including Florida), can provide a broad perspective on solving state/public sector problems and in implementing their solutions in areas including law enforcement, systems integration and health care. Petitioner has a long history of providing service to the communities in which it works. Again specific instances of community service are referenced in the stipulation and settlement agreement and are incorporated herein.
The Issue Whether Respondent has failed to maintain "good moral character," as alleged in the instant Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since May 27, 1998, certified as a correctional officer in the State of Florida, holding Correctional Certificate Number 180451. Respondent presently works as a security guard for Vanguard Security, a Broward County security company. At all times material to the instant case, Respondent was employed as a detention deputy by the Monroe County Sheriff's Office (Sheriff's Office) and assigned to work the 6:00 p.m. to 6:00 a.m. shift at the Plantation Key detention facility (Facility) where he was responsible for inmate care, custody, and control. Janice Kincer is a 32-year-old female with two felony convictions on her record. At all times material to the instant case, Ms. Kincer was an inmate at the Facility, being held on a misdemeanor battery charge. The Sheriff's Office had transported Ms. Kincer to the Facility because she had to make a court appearance in Plantation Key on the morning of October 21, 2002. Ms. Kincer arrived at the Facility on the evening of October 20, 2002. At no time prior to her arrival at the Facility had Ms. Kincer ever met Respondent. Respondent acted as Ms. Kincer's "receiving officer" at the Facility, placing her in her holding cell and bringing her her personal belongings. Immediately after getting Ms. Kincer situated in her cell, Respondent started making comments to her about her physical appearance. He told Ms. Kincer, who was dressed in shorts, that her legs were "really nice" and that he "wanted to see [her] without [her] pants." He also commented that he would "like[] to see [her hair, which was in a ponytail] down." Ms. Kincer has a large tattoo of a panther "between [her] belt line and [her] knee." Respondent asked Ms. Kincer if he could see all of the tattoo. In response to this request, Ms. Kincer "lifted [her] shorts" and showed Respondent what he had asked to see. Throughout this first evening that Ms. Kincer was at the Facility, Respondent returned to her cell to visit with her on various occasions. The conversations he initiated with her during these visits, for the most part, "referred to sex." Ms. Kincer's efforts to change the subject were, in large measure, unsuccessful. During one of these conversations, Respondent urged Ms. Kincer to "let [him] touch it," referring to Ms. Kincer's vaginal area. Ms. Kincer refused Respondent's entreaties, telling him that she just "wanted to lay down and go to sleep." Respondent left following this exchange, but he returned to Ms. Kincer's cell shortly thereafter. Ms. Kincer was in her bed, partially covered by a blanket and wearing only a sweatshirt and sports bra. She was awake, but when she heard Respondent enter her cell and call her name, she pretended to be asleep and did not respond to Respondent. She "figured if [she] just . . . made it like [she] was asleep [Respondent] wouldn't bother [her]." She was wrong. Respondent proceeded to walk up to her bed, reach under the blanket, place his hand between her legs and touch her vaginal area. Upon being touched by Respondent, Ms. Kincer "jumped up" and asked Respondent "[w]hat [he was] doing." Respondent replied that he "just wanted to know if [Ms. Kincer was] getting in the shower," to which Ms. Kincer responded, she had already taken a shower, as Respondent was aware. Respondent then exited the cell. On his way out, he told Ms. Kincer that he would see her the following day. The next morning (the morning of October 21, 2002), Ms. Kincer reported to a sheriff's deputy working the day shift at the Facility what Respondent had done to her the previous evening. Geni Hernandez, who was then an inspector with the Internal Affairs unit of the Sheriff's Office, was assigned to investigate Ms. Kincer's complaint against Respondent. Inspector Hernandez went to the Facility at around noon on October 21, 2002, to meet with Ms. Kincer. After being told by Ms. Kincer about Respondent's conduct the evening before, Inspector Hernandez sought, and received, Ms. Kincer's consent to place hidden audio and video surveillance equipment in Ms. Kincer's cell to obtain evidence concerning Respondent's interactions with Ms. Kincer. The equipment was installed before the beginning of Respondent's shift on October 21, 2002, without Respondent's knowledge. After Respondent reported to work for his shift that evening, he entered Ms. Kincer's cell while Ms. Kincer was taking a shower and walked toward the shower stall. Seeing Respondent approach her, Ms. Kincer yelled out to him that she was in the shower and that she wanted him to leave. Respondent, however, continued toward the shower stall. When he got to the stall partition (which was locked), he "put his arm over [it] in order to touch [Ms. Kincer]," who was standing naked in the stall. Unable, with his outstretched arm, to reach Ms. Kincer (who resisted his efforts to touch her), Respondent tried to unlock the partition to gain access to the stall. He stopped and quickly left the cell when he heard noise coming from the hallway. As he was leaving, he asked Ms. Kincer, as he had done previously, if he could "touch it." Ms. Kincer replied that she would let him "touch it later." Later that evening, after Ms. Kincer had finished showering and getting dressed, Respondent returned to her cell on several occasions and engaged in further conversation with her. Respondent was "relentless" in his efforts to verbally persuade Ms. Kincer to engage in sexual activity with him. Ms. Kincer rebuffed Respondent's advances. She told him that she was married and, in any event, she did not feel well. She also expressed concerns that, if she engaged in sexual activity with Respondent, she would get caught and get in trouble. Respondent tried to assure Ms. Kincer that, if they engaged in sexual activity, no one would find out. He told her that it would be "real quick" and be over before anyone noticed what they were doing. He encouraged her to pull her panties down, but she refused. Respondent ultimately gave up on his efforts to convince Ms. Kincer to engage in sexual activity with him, and he left her alone. After Respondent's shift had ended, Inspector Hernandez interviewed Ms. Kincer (who left the Facility shortly following the interview). In addition to speaking with Ms. Kincer, Inspector Hernandez viewed the surveillance footage taken from Ms. Kincer's cell. Ms. Kincer did not expect to, nor did she, receive favorable treatment as a result of her complaining about Respondent to the Sheriff's Office and then cooperating with the Sheriff's Office in its investigation of her complaint. Respondent was not only terminated from his employment with the Sheriff's Office, but was also arrested, for his inappropriate dealings with Ms. Kincer. The criminal charges against him, however, were eventually dropped.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final oder finding that Respondent failed to maintain "good moral character" when he, on or about October 21, 2002, "solicit[ed]" an inmate under his supervision to engage in sexual activity with him and disciplining him for this "failure to maintain good moral character" by revoking his certificate. DONE AND ENTERED this 25th day of April, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 25th day of April, 2005.
The Issue Whether Petitioner has demonstrated rehabilitation from her disqualifying offense, and whether Respondent’s intended agency action to deny her request for an exemption is an abuse of discretion.
Findings Of Fact Respondent is the state agency charged with providing services to persons with developmental disabilities, including those with autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. The population the Agency serves is one with a heightened risk for abuse, neglect, and exploitation, and people employed to work with this population are considered to be in positions of special trust. Anyone seeking employment with an entity that serves this fragile population is required to undergo a Level 2 screening, in order to ensure that someone who has been convicted or found guilty of certain enumerated crimes is not placed in a position of trust with the people the Agency serves. Petitioner applied for a position with an entity called “The Mentor.” The position for which she applied required that she undergo Level 2 screening. A Level 2 background check was performed by the Department of Children and Families. The background check included criminal history record checks at state, national, and local levels. Petitioner’s state and local criminal record checks were clear. However, the background check revealed that Petitioner has a disqualifying offense that was committed in 2002 in Virginia. The background check also revealed some subsequent arrests and one non-disqualifying conviction occurring after the disqualifying offense. On December 14, 2015, the Department of Children and Families notified Petitioner by letter that she was disqualified from employment by virtue of her disqualifying offense, identified in the letter as grand larceny. The letter notified Petitioner of her eligibility to seek an exemption from disqualification. Petitioner completed a Request for Exemption Questionnaire, which was provided to her. She obtained those documents related to her criminal history that were available, but was unable to retrieve all of them due to the passage of time. She also submitted copies of documents related to her training and education, employment history, and restoration of her civil rights. There is an Exemption Review Request Checklist that gives some aide in completing the exemption packet, but there does not appear to be a set of instructions or any directions regarding what is sought in the questionnaire. For example, the checklist and the questionnaire speak of providing information regarding “each of your criminal offenses.” There is no explanation that “offenses” is meant to include not only convictions, but guilty and nolo contendere pleas, and arrests where the charges were dismissed. Similarly, the questionnaire asks the applicant to list “stressors” existing at the time of the disqualifying offense and existing now, but does not ask an applicant about their background. Petitioner testified that she called the Agency with questions regarding information to be supplied with the questionnaire, but did not get any meaningful assistance. By letter dated May 27, 2016, Barbara Palmer, as director of the Agency, notified her that the Agency had denied her request for exemption from disqualification because she had not submitted clear and convincing evidence of rehabilitation. No further explanation of the Agency’s decision was provided. Petitioner was notified of her right to request an administrative hearing if she disputed the Agency’s decision, and she timely invoked this right. Petitioner was born June 25, 1982, and is approximately 34 years old. She never knew her father, and her mother was a drug addict. Her older brother provided what little parenting she received, and the environment in which she grew up had no real moral compass. As a result, it was easy for Petitioner to become entangled with people who were not healthy influences. The Disqualifying Offense The offense which disqualifies Petitioner from holding a position of trust occurred on February 13, 2002, when she was 19 years old. Ms. Smiley was a back-seat passenger in a stolen car. When the car was stopped by police, the others in the car fled the scene. Ms. Smiley did not flee, but refused to give up the names of those who had. As she stated in her exemption questionnaire, “I was young and dumb at the time, and believed I was protecting my friends by not giving the cops their names. I was very very foolish!” Ms. Smiley was originally charged with grand larceny (the crime that the Department of Children and Families identified), but pled to and was found guilty of receiving stolen property, a felony under Virginia law, as well as a lesser included misdemeanor offense of eluding a police officer. As a result of the plea agreement, on May 30, 2002, Ms. Smiley was sentenced to two years’ incarceration for Count 1 and 12 months’ incarceration for Count 2. The court suspended the sentences for both counts, subject to two years of unsupervised probation, payment of court costs of $1,315.50 and restitution of $700 to the owner of the car.1/ As of February 1, 2008, Petitioner paid both the costs and the restitution related to her disqualifying offense, and she received releases of judgment for them from the Norfolk County Court. She also wrote a letter of apology to the victim and stated in the questionnaire that the victim in turn had given her encouraging words regarding the importance of the company one keeps that she has taken to heart. Subsequent Criminal Events Agencies conducting disqualification exemption requests are permitted to consider arrests and convictions that occur after any disqualifying offense, whether or not the subsequent event would be considered a disqualifying offense if the applicant was found guilty, and regardless of the disposition of any arrest. Based on its authority to do so, the Agency considered the following events in Petitioner’s past when it denied her request for an exemption. There was some mention at the hearing of an arrest in 2003, which the Agency indicates was explained in an e-mail which would be in Respondent’s Exhibit I. However, as noted previously, Respondent did not submit Exhibit I after the hearing, and there is no documentation regarding this arrest. However, it appears from the brief testimony at the hearing on this issue that Petitioner was actually the victim in this incident, and the charges against her were dismissed. On January 23, 2006, Petitioner was arrested and charged with indecent language. Petitioner was 23 at the time. The charge was dismissed on January 26, 2006. Petitioner explained that she had gotten into an argument with a friend when she learned the friend was seeing Petitioner’s boyfriend, and used some off-color language during the argument. It is surprising that this could, in this day and age, even be a criminal offense that is actually charged. One cannot help but wonder how small the employment pool would be if all who used indecent language could not hold positions of trust. Nonetheless, this ten-year-old arrest is a factor that the Agency considered, concluding that it was evidence of Petitioner’s lack of judgment. On June 1, 2009, Petitioner was arrested for failure to appear. The Norfolk, Virginia, criminal records indicate that the offense date was June 30, 2008. The charge was dismissed on June 29, 2009. Petitioner testified candidly that she totally forgot her court date and was remorseful about doing so. On June 14, 2009, Petitioner was arrested for obstruction of justice, a misdemeanor. Petitioner apparently pled guilty and was sentenced to 90 days in jail, with 80 days of the sentence suspended. Petitioner paid the costs associated with this offense on or before October 5, 2009. Petitioner explained that she and some friends had been partying, and that she “mouthed off” at a security guard. She described her behavior has “completely out of line,” for which she took full responsibility. She no longer drinks alcohol or parties, because she wants to be a better role model for her children. As is explained below, Petitioner left the Norfolk area and moved to Fairbanks, Alaska, where she sought and received training in counseling for alcohol and drug abuse. She worked as a counselor in Fairbanks until moving to Florida in 2013. Her efforts to obtain employment in Florida have been stymied by the requirement for Level 2 screening. While she has not been employed since moving to Florida, she has worked toward obtaining her education and has been active in her church and her children’s education. Educational History On June 15, 2002, after the entry of the felony plea, Ms. Smiley graduated from Granby High School in Norfolk, Virginia. On October 6, 2011, Ms. Smiley received her certification from the Regional Alcohol and Drug Abuse Counselor Training Program (RADACT), in Anchorage, Alaska, as a Counselor Technician/Behavioral Health Aide I. To earn this certification, she completed 112 hours of coursework from September 19 through October 6, 2011. On January 26, 2012, Petitioner completed two hours of continuing education in clinical documentation, approved by the State of Alaska, DHSS Behavioral Health. On June 7, 2012, Petitioner received a certification for the completion of a Motivational Interviewing course offered by RADACT, representing 16 contact hours. On October 4, 2012, Ms. Smiley received her certification from RADACT, as a Level I Counselor. To earn this certification, she completed 112 hours of coursework from September 17 through October 4, 2012. All of the certifications from RADACT indicate that the coursework has been approved by the National Association of Alcoholism and Drug Abuse Counselors and will be accepted by the Alaska Commission for Behavioral Health Certification. Ms. Smiley submitted documentation indicating that she had attended classes at Valencia College in the summer of 2015, taking classes toward her college degree. She also has taken courses at Seminole State College, although the time frame for this coursework is unclear from the documentation presented. Employment History Petitioner submitted the following information related to her work history on the exemption questionnaire. From May 14, 2000, to September 16, 2003, Ms. Smiley worked on a seasonal basis as a summer camp worker for the City of Norfolk Parks and Recreation Department. The undersigned notes that she was employed in this capacity during the time period when her disqualifying offense occurred, and that the City of Norfolk continued to employ her working with children, despite her felony conviction. There is no indication that any child was harmed as a result of the care she provided to children during her employment with the city. From October 1, 2003, to June 10, 2005, Petitioner worked as a youth counselor for the YMCA in Norfolk. Her job duties included assisting with homework and after-school activities in the YMCA’s before and after school programs. Ms. Smiley held this job working with children not long after her felony conviction, in the same town where the conviction occurred. Petitioner worked for the City of Norfolk, Parking Division, from June 10, 2006, through October 1, 2008, collecting parking fees. The City of Norfolk employed her in a position involving the collection of money despite her felony conviction for receiving stolen property. Ms. Smiley moved to Alaska, and from February 2, 2009, to February 13, 2013, Petitioner worked for Fairbanks Native Associates in Fairbanks, as a counselor.2/ In that capacity, she worked with clients to develop ways to cope with issues such as HIV, grief, stress, and addiction, and, potentially, to incorporate 12-step programs to assist with recovery and prevent relapse. With each of her jobs, Petitioner remained employed for a minimum of 20 months to approximately four years. Ms. Smiley left her job in Alaska in order to move to Florida. While she has sought employment in Florida, she has been unable to get past the Level 2 screening and cannot work in the field for which she has trained because she does not have an exemption. Community Involvement On December 9, 2015, Ms. Smiley’s civil rights to vote, hold public office, serve on a jury, and to be a notary public were restored by the Governor of Virginia. She has completed an application to register to vote in Florida. Ms. Smiley has three special-needs children and is an involved parent. She attends all of her children’s school functions and belonged to the PTA at her children’s elementary school. She also attends church twice a week and is active in a faith-based organization called “I am Judah.” Petitioner also provided to the Agency two positive letters regarding her character, from Daquisha Presley and Shavon Haskins. Both letters are glowing in their praise of Ms. Smiley, but contain no real explanation of how the writers know her or any description of activities in which she is involved that would point to rehabilitation. However, both letter-writers are from Virginia, making their attendance at a hearing in Florida unrealistic. Both writers speak of Ms. Smiley’s thoughtfulness and giving heart, with Ms. Presley also referring to her strength, grace, compassion, leadership, courage, and faith. The Agency’s Decision The Agency declined to grant Petitioner’s request for exemption, stating that she had not provided clear and convincing evidence of rehabilitation. At the hearing, the Agency gave little explanation regarding the reasoning behind its decision. It is unclear whether Agency personnel realized that Ms. Smiley’s disqualifying offense was receiving stolen property, as opposed to grand larceny, as identified in the Department of Children and Families’ December 14, 2015, letter. Mr. Sauve testified that Ms. Smiley’s lack of employment after moving to Florida was troubling and that the Agency had considered her non- disqualifying offenses since the 2002 conviction. In its Proposed Recommended Order, the Agency asserts that Petitioner “has not demonstrated any rehabilitation specific to the disqualifying offense, and a majority of the evidence given for her rehabilitation existed during the ensuing non-qualifying offenses.” The Agency did not indicate what would qualify as rehabilitation “specific to the disqualifying offense.” However, the record at hearing demonstrated that Petitioner paid all of the court costs and restitution related to the disqualifying offense, and wrote a letter of apology to the victim. She has stopped drinking alcohol, which contributed to her past indiscretions, and moved away from the environment where her troubles began. All of these actions are evidence of steps toward rehabilitation. Moreover, the statement that the majority of evidence Petitioner presented related to rehabilitation existed during the ensuing non-qualifying offenses is incorrect. With the exception of her high school diploma, all of the training and education that Petitioner has received occurred after the 2009 charge, which is the last encounter Petitioner had with the criminal authorities. The same can be said of her employment as a counselor. Her civil rights were restored in 2015; also well after the 2009 charge. Petitioner’s actions and her efforts to move past the behaviors leading to her legal issues must be viewed from two different perspectives: first, through the lens of her background and upbringing, in order to understand the environment in which she found herself and that which she now lives; and second, through the significant and laudable goal of the Agency to ensure that the fragile population it serves is not exploited or endangered. Petitioner testified at the hearing, and her testimony is something the Agency did not have the advantage of hearing before making its initial decision. As noted above, Petitioner did not have the benefit of a solid family structure. She did not know her father, and her mother was a drug addict. She views her behavior as a young adult for what it was: the foolish and irresponsible behavior of a young woman hanging out with the wrong people, and not thinking about the future. She admitted that her behavior in 2009 also was irresponsible, stating that she was “completely out of line.” She testified that she has removed herself from those influences in her life and no longer drinks or parties, instead focusing on being a mother to her children. The Agency points out that she also was a mother in 2009 when the final non-disqualifying offense occurred. While that is true, Petitioner has taken steps to improve her situation since that time: by obtaining training for employment and working in the counseling field, by attending her church and faith-based organization activities, and by being active in her children’s elementary school PTA. All are efforts that Petitioner has made in the last six to seven years to be a positive role model for her children and to rise above the circumstances in which she was raised. In short, she is attempting to provide for her children what no one provided for her. She also has used the time while she has been unable to gain employment to continue her education. The evidence considered at the hearing shows a woman who was truly remorseful for the actions in her past and who is doing her best to overcome the limitations of her upbringing and be a contributing member of society. Ms. Smiley has proven rehabilitation from the single disqualifying offense by clear and convincing evidence. Based on the evidence presented at the hearing, it also demonstrates that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony, coupled with the information presented to the Agency, established that Ms. Smiley presents no danger to APD clients, including children. Since her disqualifying offense, she has worked with children, been entrusted with money, and worked with those battling addiction and other stressors. While the Agency is right to take its responsibility to protect a particularly vulnerable population seriously, Ms. Smiley has demonstrated her ability and passion to work with those who are less fortunate than herself. As she stated in her Proposed Recommended Order, “I want to work with trouble teens [sic] because I know the STRUGGLE, I know how trouble is easy to get into and HARD to get out, even 15 years down the road.” She should be allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disabilities enter a final order granting Petitioner’s request for an exemption from disqualification from a position of trust. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2016.
The Issue Whether the actions charged in the Administrative Complaint in the case of Respondent Kenneth Manderville, (Mr. Manderville), demonstrate that he does not have the moral character to qualify as a correctional and law enforcement officer as provided in Sections 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code.
Findings Of Fact Mr. Manderville holds correctional and law enforcement certificates issued by the Commission pursuant to the power vested in the Commission by Section 943.12(3). Mr. Manderville was employed as a deputy with the Putnam County Sheriff's Office for eight years, achieving the rank of sergeant. He was terminated for cause on October 11, 2000. Pursuant to Section 943.12(3), the Commission is empowered to certify and to revoke the certification of officers. Betty Prevatt (Mrs. Prevatt) is a resident of Palatka, Florida. On or about June 25, 2000, Mrs. Prevatt and her husband were involved in a domestic dispute. During the course of this dispute, her husband reached for his shotgun. As a result, Mrs. Prevatt fled her residence and ran down the adjacent highway. A helpful citizen rescued her by providing her with an automobile ride to the Putnam County Sheriff's Department. Later in the evening of June 25, 2000, at the Putnam County Sheriff's Department, Mrs. Prevatt came into contact with Sergeant Manderville, during the course of filing a domestic violence complaint with the Putnam County Sheriff's Office. Subsequently, Sergeant Manderville caused the arrest and incarceration of Mr. Prevatt. Thereafter, Sergeant Manderville gave Mrs. Prevatt a ride in his patrol car to her home. While at the Prevatt home, Mrs. Prevatt told Sergeant Manderville that she did not wish to spend the night in her home so he told her to return to the Sheriff's Department in her automobile. Mrs. Prevatt came to the Sheriff's Department, as instructed by Mr. Manderville, around 11:30 P.M. Mr. Manderville told her to follow him in her car. He led her to a house owned by Mr. Manderville's parents. They entered the house. Mr. Manderville was in uniform and on duty. Subsequently he removed his uniform and engaged in sexual intercourse with Mrs. Prevatt. Thereafter, he telephoned a woman's shelter and Mrs. Prevatt spent the night there. Subsequently Mrs. Prevatt called Mr. Manderville, on more than one occasion during the course of the next few days, and inquired as to the process required to extract her husband from the Putnam County Jail. Eventually Mr. Manderville told her that he would help her win the release of her husband, and ostensibly to facilitate that purpose, instructed her to meet him at the Kentucky Fried Chicken restaurant after sunset. She did as requested and he told her to return to his parents' house. She complied with his direction. Upon entering his parents' house, he insisted on having sexual intercourse again. She submitted. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Afterwards, she returned to the shelter in which she was then residing, which was located in St. Augustine. On a subsequent occasion, Mr. Manderville asked Mrs. Prevatt to meet him at the Sheriff's Department, allegedly for the purpose of finishing paperwork regarding Mr. Prevatt. In response, she met him as requested. Thereafter, he took her to an interview room, had sexual intercourse with her, withdrew, and ejaculated on the carpet. Except during the period in which he was engaged in sexual acts, he was in uniform and on duty. Mrs. Prevatt's husband was released from jail a few days after his arrest but Mrs. Prevatt continued to live in the shelter. After a period of about two months, she went to the sheriff's office to retrieve her husband's shotgun. During a conversation at the Sheriff's Department, Mr. Manderville asked her to meet him after dark at the post office in Palatka. She did as asked. Mr. Manderville asked her to get in his patrol car and he then took her to his house in Mannville. After arriving at Mr. Manderville's house in Mannville, he required her to disrobe, had intercourse with her twice, and took pictures of her bent over the hood of his patrol car, while nude. All of this occurred while he was on duty and, except during the sexual activity, he was attired in his uniform. This was the last time that they had sexual contact. Almost three months later, Mrs. Prevatt again established a relationship with her husband. Mr. Prevatt began to inquire about Mrs. Prevatt's relationship with Mr. Manderville and she revealed what had occurred. On September 28, 2000, she gave a detailed report of the matter to Lieutenant Roger W. Sassaman and Detective Walter Perkins of the internal affairs section of the Putnam County Sheriff's Department. On October 11, 2000, Mr. Manderville was discharged from his employment with the Putnam County Sheriff's Department. Mr. Manderville asserted that Mrs. Prevatt's statements with regard to sexual activity were fabrications. He claimed that Mrs. Prevatt was infatuated with him. He asserted that she called him on many occasions in furtherance of what she wanted to be a continuing romantic relationship but that he had resisted her. Mrs. Prevatt is a woman whose life has been beset with problems. At the time of the hearing she had endured an abusive marital situation for eighteen years. She has experienced problems maintaining steady employment and she has abused prescription drugs. Nevertheless, it is concluded that Mrs. Prevatt's version of the story was, in pertinent parts, true, and that Mr. Manderville's version lacks credibility. In arriving at that conclusion, the following matters were considered: Mrs. Prevatt was able to describe with particularity the interior of Mr. Manderville's parents' house and the interior of Mr. Manderville's residence. If she had not been taken to these places, she would not have been able to glean these details. Moreover, Mrs. Debbie Manderville, who married Mr. Manderville in 1996, in her attempt to discredit Mrs. Prevatt's knowledge of the interior of the two houses, succeeded only in demonstrating that Mrs. Prevatt did have an accurate recollection of the interiors. Mrs. Prevatt was aware that Mr. Manderville was married to a nurse because she heard him call her at the local hospital from Mrs. Manderville's home. This call was undoubtedly made for the purpose of insuring that Mrs. Manderville would not intrude while he was present there with Mrs. Prevatt. Mrs. Prevatt knew that Mr. Manderville's entire body, except for the pubic area, was cleanly shaved, at times pertinent. Mr. Manderville confirmed this in his testimony. Had she not seen him in the nude, she would not have been aware of this. Mrs. Prevatt was able to point out a spot on the interview room carpet where she claimed semen residue would be found. Mr. Manderville, when questioned about this at the hearing, did not deny that semen residue was found at that exact spot she identified. He stated, however, that it was produced not from illicit activity with Mrs. Prevatt, but through self- abuse. His version regarding the presence of the semen was unbelievable. Upon consideration of all of the facts and circumstances elicited at the hearing, it is found by clear and convincing evidence that on four occasions Mr. Manderville had sexual intercourse with Mrs. Prevatt while he was on duty, when she was emotionally distraught, and under circumstances where he used his power as a law enforcement officer to take advantage of her in a stressful situation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be issued revoking the certification of Mr. Manderville as a law enforcement and correctional officer. DONE AND ORDERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003. COPIES FURNISHED: Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, the following findings of fact are made: Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI). Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI. Inspector White and Ziggy were summoned to the parking lot. Ziggy alerted to the presence of narcotics in Respondent's vehicle. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it). In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters and other written materials, including correspondence from inmates. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her." Instead of waiting in the lobby, Respondent got into her vehicle and drove off. Her employment was subsequently terminated, and she never returned to the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008.
