STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE LEWIS HOLLAND, DOUGLAS L. ) ADAMS, AND JOE RICHARDSON, )

)

Petitioners, )

)

vs. ) CASE NO. 84-0010RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 17, 1984, at Baker Correctional Institution, Olustee, Florida.

APPEARANCES

For Petitioners: Joe Richardson, Pro Se

No. 0666663-E64

Post Office Box 500 Olustee, Florida 32072

Douglas Adams, Pro Se No. 031200

Post Office Box 221 Raiford, Florida 32083

Joe Lewis Holland, Pro Se Post Office Box 221 Raiford, Florida 32803

For Respondent: William H. Ravenell, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

ISSUES AND BACKGROUND

This case arises out of a challenge to the validity of a policy and procedure at Baker Correctional Institution. That policy and procedure provides for the use of "contact cards" to record infractions committed by inmates while incarcerated at Baker Correctional Institution.

At the formal hearing, the Petitioners called as witnesses, Joseph Edward Rowe, B. W. Stewart, Gerald Ford, Jack Swain Hazouri, Jr., and Earl Washington. Each of the Petitioners also testified on their own behalf. The Department called as its only witness W. Marion Ellis. The Petitioners offered and had admitted two exhibits, and Respondent offered and had admitted into evidence one exhibit.

Subsequent to the final hearing, the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they were rejected as being unsupported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. Petitioner Joe Richardson is presently incarcerated at Baker Correctional Institution. Petitioner, Douglas Adams was incarcerated as an inmate at Baker Correctional Institution from September 23, 1983, until January, 1984, when he was transferred to Union Correctional Institution. Petitioner Joe Lewis Holland was incarcerated at Baker Correctional Institution from September 23, 1983, to January 24, 1984, when he was transferred to Union Correctional Institution.

   
   

2. The Petitioners by this action are challenging the validity of a policy at Baker Correctional Institution which involves the use of a form called a "contact card" to record infractions committed by inmates. The contact cards are not intended to be a permanent record in the inmates' file and is used for various purposes within Baker Correctional Institution. The entries on contact cards are in many instances used as an alternative for giving the inmate a "disciplinary report" (hereafter referred to a "DR"). Prior to the contact card policy being implemented at Baker Correctional, that institution was experiencing 350 to 370 DR's per month. As a result of the use of the use of contact cards that number is now reduced to 70 per month. The contact cards are not used in determinations related to gain time or parole.

3. The contact card is intended to be a behavior card which is used to monitor the inmates behavior without writing the inmate up and placing it in his record jacket as a permanent file. Because there are three different shifts of correctional officers the contact cards are used to provide each shift an accurate record of the inmates' behavior during the other shifts. One of the primary purposes of the contact card is to make the inmate responsible for their individual actions regardless of how minor or major the behavior may be. Many of the infractions entered on contact cards could appropriately be the subject of a DR. The contact card is treated as an informal record and the inmate is not required to sign it. The inmate is required to sign a Corrective Consultation form when he receives such a consultation. That form is considered a permanent formal record.

   
   

4. There have been instances where entries were made on a prisoner's contact card and the prisoner was not informed of the entry. On December 22, 1983, Major B. W. Stewart, Baker Correctional Institution, sent an interoffice memorandum to all shift supervisors at Baker Correctional. The memo required the supervisor to instruct all their correctional officers to advise or counsel an inmate any time an entry is made on an inmate's contact card. The memo acknowledges a "habit" of writing an inmate up and not making the inmate aware of the write-up.

   
   

5. The entries made on the contact cards are used to determine who is permitted to live in the preferable dormitories such "T" building. The number of entries necessary to cause a reassignment of an inmate from a preferable dormitory to a less preferable dormitory will depend upon the seriousness of the infractions. Dorm cards are also used in determining job assignments.

   
   

6. In some instances when an inmate commits an infraction he is given a choice of extra duty or a write-up or DR. It is up to the officer placing the entry on the contact card as to whether the inmate performs extra duty as a result of the entries on the contact card, the extra duty is voluntary extra duty. If the infraction is serious enough and the inmate refuses extra duty, he will receive a disciplinary report. If the inmate desires to challenge an entry on his conduct card he can file for an administrative remedy with the administration of the institution, but he does not have the right to a hearing such as those conducted as part of the DR procedure.

   
   

7. Joseph Edward Rowe at the time of the formal hearing in this matter, had been incarcerated at Baker Correctional Institution for a period of approximately ten (10) months. During that time period he had certain infractions placed on his contact card and was not informed of these entries. One evening

   Mr. Rowe was contacted by Sgt. Whitehead and informed that if he received one more infraction on his conduct card he would be moved out of Building G. He had eight write-ups or entries on his conduct card and he had never been counseled about any of the infractions which were the subjects of these entries. One of the entries was for talking too loud in the hall. Mr. Rower was received no disciplinary reports at Baker Correctional Institution. It is considered somewhat of a privilege to live in Building G because it is a preferable building.

   
   

8. When he met with his classification officer for his progress report, Mr. Rowe was informed that the contact card was used in arriving at his overall evaluation. Mr. Rowe did not know whether his conduct card had ever been used in granting or denying him gain time.

   
   

9. On one occasion Petitioner Joe Lewis Holland received an entry on his contact card for having a chair under his bed. When the correctional officer indicated he was going to write him up on a contact card for his infraction, Mr. Holland informed him it was not his chair. Another inmate Earl Washington, informed the officer that he had placed the chair under Mr. Holland's bed.

   The infraction was sill placed upon Mr. Holland's contact card. At the time the entry was made, Mr. Holland was not made aware that the entry was in fact being placed on his contact card.

   
   

10. Petitioner Joe Richardson has, since the contact card policy was implemented, received several entries on his contact card. He was not aware of these entries at the time they were being made. Mr. Richardson has never received a DR.

    
    

11. Petitioner Douglas Adams has received one write-up on his contact card and that write-up was for failing to get up for his "early chow." Early chow is for those inmates assigned to outside details. Mr. Adams, at no time while he was incarcerated at Baker Correctional Institution, was assigned to outside details. In January, 1984, Mr. Adams was transferred from one of the preferable dormitories to an open bay dormitory because of three entries on his contact card. Mr. Adams was not made aware of these entries until he was moved to the new dormitory.

    
    

12. The specific policy being challenged is applicable only to Baker Correctional Institution and has not been promulgated as a rule in accordance with the requirements of Section 120.54, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Herings has jurisdiction over the parties and subject matter of this action.

14. The Petitioner, Joe Richardson, has standing to maintain this action pursuant to Section 120.56, Florida Statutes (1983). Petitioner Richardson has been, and will continue to be substantially affected by the challenged rule. He continues to be evaluated for dormitory assignment, job assignment, and overall evaluations based upon entries made on his contact card. See, Flroida Department of Health and Rehabilitative Services v. Jerry, 343 So. 2d 123 (Fla. 1st DCA 1978), cert. den., 359 So. 2d 1215 (Fla. 1978); Department of Corrections v. Sumner, 447 So. 2d 1388 (Fla. 1st DCA 1984).

    
    

15. Subsequent to the filing of the petition and prior to the final hearing, Petitioners Adams and Holland were transferred from Baker Correctional Institution to Union Correctional Institution and are therefore no longer subject to the contact card policy at Baker Correctional Institution. However, to the extent that the overall evaluations and progress reports of these individuals while at Baker Correctional Institution were based upon the contact cards, they continue to be impacted by that policy and procedure, and have standing to maintain this proceeding.

    
    

16. Petitioners challenge the contact card policy at Baker Correctional Institution as an invalid exercise of delegated legislative authority. The policy and procedure applies only to Baker Correctional Institution and has not been promulgated in accordance with the procedure or requirements of Section 120.54, Florida Statutes. The issue, then, is whether the contact card policy and procedure constitutes a rule as defined by Section 120.52, Florida Statutes (1983).

    
    

17. Section 120.52, Florida Statutes (1981), of the Administrative Procedure Act (APA) defines a rule as:

    
    

    (14) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. . . .

    
    

    Agency statements or directives which constitute rules under this definition but were not formally adopted in accordance with Section 120.54, Florida Statutes (1981), are illicit rules and invalid. Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977). It does not matter what descriptor the

    agency uses to describe or characterize the particular statement. If the statement meets the criteria set forth in Section 120.52(14), it is a rule. Department of Administration v.

    Harvey, 356 So. 2d 323 (Fla. 1st DCA 1978).

    
    

18. The Respondent contends that the challenged operating procedure is not a rule because it is not a statement of general applicability. This argument is based on the fact that the operating procedure applies only to those inmates incarcerated at Baker Correctional Institution. This contention is without merit. The geographical limitations of an agency statement are certainly a factor to be considered but are not conclusive in the determination of whether such as statement is or is not a rule. See, Department of Commerce v. Matthews Corporation, 358 So. 2d

    256 (Fla. 1st DCA 1978). An agency statement need not apply to all citizens of Florida in order to be a statement of general applicability qualifying it as a rule. See, Florida State University v. Dann, supra. See also, Sumner v. Department of Corrections, 447 So. 2d 1388 (Fla. 1st DCA 1984). The contact card policy and procedure applies to all inmates at Baker Correctional Institution.

    
    

19. Not all utterances or statements of incipient policy of the agency must be made within the strict rulemaking process of Section 120.54. McDonald v. Department of Banking and Finance,

    346 So. 2d 569 (Fla. 1st DCA 1977). The definition of rules within Section 120.52(14) includes those statements which are of general applicability and are applied with the force of a rule of law. Department of Administration v. Stevens, supra. If the statements purport in and of themselves to create rights and adversely affect others, if they allow subordinates no discretion in implementation, and if they are prospectively applied and are virtually self-executing, then they are rules and are void unless adopted in accordance with Section 120.54, Florida Statutes (1981). McDonald v. Department of Banking and Finance, supra; Department of Commerce v. Matthews Corporation, 358 So. 2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So. 2d 1304 (Fla. 1st DCA 1981).

    
    

20. The Legislature authorized the Department of Corrections to adopt regulations relating to the conduct to be observed by prisoners, punishment of prisoners, or which are necessary for the efficient operation and management of the correctional system. Section 945.21(1)(a), (b) and (n), Florida Statutes (1983). However, the Legislature also expressly required that such regulations "shall be adopted and filed with the Department of State as provided in Chapter 120." Section 945.21(2), Florida Statutes (1983). The Department of Corrections has by rule delegated to the superintendent of an institution the authority to issue "Institutional Operating

    Procedures, consistent with Rules, Directives, and Regional Operating Procedures, applicable to operations within the institution." Rule 33-1.07(3), Florida Administrative Code. However, in that same rule, the Department, recognizing the mandate of the Legislature provided:

    
    

    (4) Any material contained in such Directives and Operating Procedures that meets the definition of "rule" contained in Section 120.52(14), F.S., shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statute.

    
    

    The Respondent has then by its own rule acknowledged that institutional operating procedures will at times constitute a rule and thus require compliance with Section 120.54, Florida Statutes. The present case is one of those instances.

    
    

21. The Department of Corrections has promulgated Rule 33- 3.08, Florida Administrative Code, relating to the discipline of prisoners and has also issued Policy and Procedure Directive Number 4.07.20 (Revised 12/30/83) which also relates to discipline. Neither the rules nor policy and procedure directive provide for or mention the use of contact cards at institutions operated and controlled by the Department of Corrections.

    
    

22. The contact card policy and procedure at Baker is used to do overall evaluations and to track the behavior record of inmates. Such rights and privileges as dormitory assignment and job assignments are based in part upon the use of the contact cards. Correctional officers are instructed to enter infractions observed by them on the particular individual's contact card.

The sole determinate of whether an infraction in fact occurred and should be noted is the individual officer. The policy and procedure creates rights and adversely affects others. The fact that some prisoners benefit from the policy and procedure by avoiding DR's does not change the fact that it is a "rule" and has not been promulgated in accordance with the requirements of Section 120.54, Florida Statutes (1983).

Based upon the foregoing, it is ORDERED:

That the contact card policy and procedure at Baker Correctional Institution is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 2nd day of July, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

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 2nd day of July, 1984.

COPIES FURNISHED:

William H. Ravenell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Douglas Adams

Joe Lewis Holland Post Office Box 221

Raiford, Florida 32083

Robert A. Leeper, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802, The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Joe Lewis Richardson

Baker Correctional Institution Post Office Box 500-D-60 Olustee, Florida 32072

Docket for Case No: 84-000010RX

Orders for Case No: 84-000010RX