98-002918 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Michelle F. Mann Status: Closed Recommended Order on Monday, March 22, 1999.

Summary: Probation officer engaged in sexual relations with parolee under her supervision, which shows a lack of good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-2918

)

MICHELLE MANN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 25, 1999, by video teleconference at Fort Lauderdale,

Florida, before Susan B. Kirkland, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: No appearance at hearing.

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 943.1395(6), (7), and

943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(c) and

11B-20.0012(1)(f), Florida Administrative Code.

PRELIMINARY STATEMENT

On December 8, 1997, Petitioner, Department of Law

Enforcement, Criminal Justice Standards and Training Commission

(Department), served Respondent, Michelle Mann (Mann), with an

Administrative Complaint, alleging that Mann engaged in an

unprofessional relationship with a community controllee in

violation of Sections 943.1395(6) and (7) and 943.13(7), Florida

Statutes, and Rules 11B-27.0011(4)(c) and 11B-20.0012(1)(f),

Florida Administrative Code. Mann filed an Election of Rights

form, stating that she disputed the allegations contained in the

Administrative Complaint and requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings

for assignment to an Administrative Law Judge on July 1, 1998.

The final hearing was scheduled for October 19, 1998. On

October 14, 1998, Petitioner filed a Motion for Continuance,

which was granted, and the final hearing was rescheduled for

January 25, 1999.

Respondent was provided notice of the final hearing by Order

Granting Continuance and Rescheduling Hearing dated November 9,

1998. Neither Respondent nor a representative for Respondent

appeared at the final hearing.

At the final hearing, Petitioner called Dorothy Belcher and

Dwight Williams as its witnesses. Petitioner's Exhibit 1 was

admitted in evidence.

The transcript was filed on February 24, 1999. On March 4,

1999, Petitioner filed its P roposed R ecommended O rder which has

been considered in rendering this R ecommended O rder. Respondent

did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent, Michelle Mann (Mann), was certified by the

Petitioner, Department of Law Enforcement, Criminal Justice

Standards and Training Commission (Department) on October 11,

1991, and was issued Correctional Probation Officer Certificate

Number 122933 and Instructor Certificate Number 595-40-7895.

2. Mann was employed by the Florida Department of

Corrections as a correctional probation officer in December 1994

until her resignation in February 7, 1997.

3. Dwight Williams, aka Dwight Moment is an inmate with the

Florida Department of Corrections.

4. In December 1994, Dwight Williams was on probation with

the Florida Department of Corrections for the charge of

conspiracy to traffic cocaine. Mann was assigned as

Mr. Williams' probation officer on December 18, 1994. This was

the first time that Mr. Williams and Mann had met.

5. From December 1994 through December 1996, Mann was

Mr. Williams' supervising probation officer.

6. Between December 1994 and November 27, 1996, Mann

initiated and engaged in a physical relationship with

Mr. Williams, which included hugging, kissing, and sexual

relations. During this time, Mann and Mr. Williams went to hotel

rooms and had sexual relations between fifteen and twenty times.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

Section 120.57(1), Florida Statutes.

8. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

9. Section 943.13(7), Florida Statutes, requires that

correctional officers have good moral character.

10. Rule 11B-27.0011(4), Florida Administrative Code,

defines "good moral character" for the purposes of implementation

of disciplinary action against Florida correctional officers.

This rule section was in effect at the time the Mann was alleged

to have had a sexual relationship with Mr. Williams. The rule

provides:

(4) For purposes of the Commission's

implementation of any of the penalties

specified in Section 943.1395(6) or (7), a

certified officer's failure to maintain good

moral character, as required by Section

943.13(7), is defined as:

* * *

(c) The perpetration by the officer of

an act or conduct which constitutes:

* * *

3. Having an unprofessional

relationship with an inmate, detainee,

probationer, or parolee, or community

controlee. An unprofessional relationship is

defined as:

* * *

b. engaging in physical contact which

is prohibited by law or rule.

11. Rule 33-4.002, Florida Administrative Code, sets for

the rules of conduct for Department of Correction employees.

Subsection (27) provides:

(27) Employees shall maintain a

professional relationship with all persons in

the custody or under the supervision of the

Department, and their immediate family or

visitors. No personal or business

relationships are permitted. Marriages

between employees and inmates are not

permitted.

12. Mann engaged in a personal relationship with

Mr. Williams which was prohibited by Rule 33-4.002(27), Florida

Administrative Code. Her relationship was unprofessional as

defined by Rule 11B-27.0011(4), Florida Administrative Code.

Petitioner has established by clear and convincing evidence that

Mann has failed to maintain good moral character within the

meaning of Section 943.13(7), Florida Statutes, and Rule 11B-

27.0011(4)(c), Florida Administrative Code.

13. Rule 11B-20.0012(1)(f), Florida Administrative Code,

provides that the certification of a criminal justice training

instructor shall be revoked if the instructor "commits an act or

acts establishing a 'lack of good moral character' as defined by

Rule 11B--27.0011(4), F.A.C."

14. Section 943.1395(7), Florida Statutes, provides:

(7) Upon a finding by the commission

that a certified officer has not maintained

good moral character, the definition of which

has been adopted by rule and is established

as a statewide standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such terms

and conditions, the commission may revoke

certification or impose additional penalties

as enumerated in this subsection.

(d) Successful completion by the

officer of any basic recruit, advanced, or

career development training or such

retraining deemed appropriate by the

commission.

(e) Issuance of a reprimand.

15. Rule 11B-27.005(5), Florida Administrative Code, sets

forth the range of penalties for violations committed by a

certified officer. The recommended penalty for a unprofessional

conduct with an inmate or probationer is revocation of the

officer's certification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED a Final Order be entered revoking

Michelle F. Mann's Correctional Probation Certificate Number

122933 and Instructor Certificate Number 595-40-7895.

DONE AND ENTERED this 22nd day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March, 1999.

COPIES FURNISHED:

A. Leon Lowry, II, 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

James D. Martin, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michelle Mann

1556 Northwest 5th Street

Fort Lauderdale, Florida 33311

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.