The purpose and effect of the proposed rule is to clarify the search procedures to which employees are subject prior to entering a Department facility or institution.

DEPARTMENT OF CORRECTIONS

RULE NO: RULE TITLE
33-208.002: Rules of Conduct
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to clarify the search procedures to which employees are subject prior to entering a Department facility or institution.
SUMMARY: The proposed rule clarifies the search procedures employees must follow when entering a Department facility or institution.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will not have an impact on small business. A SERC has not been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 944.09, 944.14, 944.35, 944.36, 944.37, 944.38, 944.39, 944.47 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Perri King Dale, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-208.002 Rules of Conduct.

The Department of Corrections requires all employees to familiarize themselves with all rules and regulations pertaining to their positions and duties, and requires that employees abide by these rules and regulations. The following rules of conduct and performance standards are applicable both on and off the job to all Department of Corrections employees. Some of these rules of conduct are found again in abbreviated form in the next section titled “Range of Disciplinary Actions;,” however, all rules of conduct are enforceable by appropriate disciplinary action regardless of whether they are listed in the range of disciplinary actions.

(1) Each warden, officer-in-charge, and circuit administrator, or supervisor, as well as designated Central Office staff Officer Staff, shall be responsible for insuring that each employee under his supervision, before assuming the duties of his employment, is familiar with all rules and regulations of the Department and institution that which pertain to such employee and to the protection, custody, control, care and treatment of persons under his supervision or control. Each employee shall keep himself completely familiar and comply with all such rules and regulations during his employment. Copies of the rules and regulations shall be made available for inspection by employees.

(2)(a) Each employee shall make a full written report of any of the following within 24 hours or upon reporting to work for his next assigned shift, whichever is sooner:

1. Criminal charge filed against him, or

2. Arrest or receipt of a Notice to Appear for violation of any criminal law involving a misdemeanor, or felony, or ordinance except minor violations for which the fine or bond forfeiture is $200 or less.

3. through (5) No change.

(6) No employee shall refuse to truthfully answer questions specifically relating to the performance of his or her official duties.

(7)(a) No employee shall refuse to submit to a search or inspection by an authorized employee, of his person, personal property or vehicle while entering, departing or otherwise being upon the premises of an institution. Refusal of an employee to submit to such search or inspection is considered as a serious form of insubordination. Upon proper notice to an employee occupying state-owned housing, such housing is subject to reasonable inspections for maintenance and sanitation purposes at least annually.

(b) All employees and contract staff shall be subject to some form of metal detection system search, and items in their possession or on their person shall be inspected prior to gaining entry to an institution or facility of the Department. Employees and contract staff may also be subject to a clothed pat search as a part of this routine search process. Outer wear such as jackets or coats and footwear shall be removed and inspected upon request during the metal detection process and during clothed pat searches. Routine searches conducted prior to entry to a Department institution or facility shall be performed by an employee of the rank of correctional officer or above.

(b) through (e) renumbered (c) through (f) No change.

(f) Any search of an employee’s person which involves the touching of the employee’s clothed body or visual inspection of the employee’s unclothed body shall be conducted in private and out of the sight and hearing of other employees and inmates. The warden or officer-in-charge is authorized to make exceptions to the provisions regarding individual private clothed body searches when the physical plant makes individual clothed searches impractical. In such cases, small groups of employees of the same sex can be subjected to clothed searches in a private area out of the sight and hearing of inmates and other employees. Such searches shall only be conducted, observed and supervised by officials of the same sex as the employee. Body cavity searches shall not be conducted.

(g) Clothed body searches shall be conducted by not less than two employees, one of which will serve as the observer. At least one of the officers shall be of the rank of sergeant or higher.

(g)(h) Any search of an employee’s person that which involves the visual inspection of the employee’s unclothed body shall be conducted in private and out of the sight and hearing of other employees and inmates. Such searches shall only be conducted, observed and supervised by officials of the same sex as the employee being searched. Such searches shall be conducted by not less than two employees, one of whom which will be at least the rank of correctional officer lieutenant. The correctional officer inspector shall assist in such searches unless he is unavailable and the delay associated with awaiting the inspector’s arrival would jeopardize the effectiveness of the search. No more than three staff members shall be involved in the actual search. Group strip searches of employees shall not be permitted.

(i) An intensive search of an employee’s person, property or vehicle shall be conducted by not less than two officials, at least one of whom shall be of a sergeant rank or higher to assume official responsibility for the search.

(h)(j) Property that is introduced into the secure perimeter such as purses, briefcases, or lunch boxes, or bags is subject to search at any time by an employee of the rank of a correctional officer or above higher.

(8) No employee shall willfully or negligently treat an inmate in a cruel or inhuman manner, nor shall profane or abusive language be used in dealing with an inmate or person under the employee’s his supervision.

(9) No employee shall report for duty or exercise supervision or control over any person while under the influence of a narcotic, barbiturate, hallucinogenic drug, central nervous system stimulant or an intoxicant. However, in the event any of the foregoing drugs is prescribed and administered to an employee, the employee shall report this to the circuit administrator, supervisor or officer-in-charge and provide him or her with a prescription receipt detailing the type of medication, dosage, and possible side effects. The circuit administrator, supervisor or officer-in-charge shall then make a determination whether the employee can perform his duties without detrimental effect. No employee shall refuse to submit to a scientific test to measure his alcohol blood level when reporting for duty or while on duty if the circuit administrator, supervisor or officer-in-charge has reason to believe that the employee is under the influence of alcohol.

(10) through (13) No change.

(14) No employee shall apply physical force to the person of an inmate except as provided in Rule 33-602.210, F.A.C., or to any other person under his supervision except and only to the degree that it reasonably appears to be necessary in self-defense, to prevent escape, to prevent injury to a person or damage to property, to quell a disturbance, or when an the inmate exhibits physical resistance to a lawful command. When force becomes necessary, a detailed written report shall be made by the employee to the warden who shall have an investigation made and shall approve or disapprove the force used. The employee’s report, together with the warden’s written approval or disapproval of the force used and his reasons therefore, shall be forwarded and distributed in accordance with Rule 33-602.210, F.A.C., Use of Force.

(15) No employee shall recommend or furnish any advice concerning the retention of a legal or bonding firm or a specific lawyer or bondsman to for an inmate, either to such inmate, a person under the employee’s his supervision, or to anyone else on such individual’s in his behalf.

(16) through (20) No change.

(21) No employee shall solicit funds or services, sell tickets, or distribute petitions or literature for any purpose other than official business on Department of Corrections property or at any other place while on duty, except that an employee may engage in such activities on Department of Corrections property when off-duty (before or after work, while on lunch hour or during breaks) provided advance permission is obtained from the employee’s supervisor. Such permission shall be given by the supervisor, if such solicitation is legal, if no employee is approached with a solicitation while on duty, and if such solicitations are conducted courteously without pressuring employees to participate.

(22) through (24) No change.

(25) Unauthorized possession or use of firearms or other weapons on Department of Corrections property, or at any other place while on duty, is prohibited.

(26) Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is not permitted.

Rulemaking Specific Authority 944.09 FS. Law Implemented 944.09, 944.14, 944.35, 944.36, 944.37, 944.38, 944.39, 944.47 FS. History– New 10-8-76, Amended 10-11-77, 4-19-79, 6-18-83, Formerly 33-4.02, Amended 8-15-89, 10-20-90, 3-20-91, 1-30-96, 3-24-97, 4-19-98, Formerly 33-4.002, Amended 7-17-02, 4-5-04, 4-17-06, 11-6-08,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Wendel Whitehurst, Deputy Secretary of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Walter A. McNeil, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 6, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 20, 2009