STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF CORRECTIONS, )

)

Petitioner, )

vs. ) CASE NO. 88-1627

)

GARY TREAKLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 31, 1988, at Fort Myers, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Lynne T. Winston

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

For Respondent: Gary Treakle, pro se

14100 East Tamiami Trail #3l3 Naples, Florida 33962

In a letter dated March 8, 1988, the Respondent requested a formal administrative hearing. The purpose of the hearing was to determine whether the Respondent is obligated to reimburse the Department of Corrections for costs incurred during his training as a correctional probation officer in the State of Florida.

During the hearing, the Petitioner called two witnesses and submitted five exhibits. The Respondent testified in his own behalf and submitted one exhibit. All of the exhibits were admitted into evidence.

A transcript of the hearing was not ordered. The parties waived the thirty-day time requirement for the filing of the Recommended Order. The

opportunity to file proposed findings of fact was waived by the Respondent. The Petitioner submitted a proposed recommended order. Rulings on the proposed findings of fact are in the Appendix.

FINDINGS OF FACT

1. On April 24, 1987, the Respondent received official confirmation that he had been hired as a Correctional Probation Officer I in the Petitioner's Fort Myers office, effective May 8, 1987.

2. The Respondent had been previously employed as a probation officer in Virginia from September of 1977 until December of 1983.

   
   

3. The Respondent went to the Petitioner's Fort Myers office to complete some preliminary paperwork before he began work. On May 5, 1987, the Respondent signed a Statement of Understanding. The document requires the reader to acknowledge that he has read, and fully understands, Section 943.16, Florida Statutes. The statute, which was provided to the reader, requires a trainee who attends an approved criminal justice training program to reimburse the agency for the training costs if he does not remain with the agency for a one-year period.

   
   

4. During his employment, the Respondent attended an approved basic recruit training program at the agency's expense. Prior to his attendance, the Respondent requested that his previous training program credits be brought before the Criminal Justice Standards and Training Commission so that a waiver could be obtained to exempt him from the training program.

   
   

5. The Petitioner did not seek an exemption from the training program for the Respondent. As a result, the Respondent attended the program at the expense of the agency in order to obtain certification as a correctional probation officer in Florida.

   
   

6. Less than one year after his employment began, the Respondent resigned from the Department of Corrections. On November 28, 1987, the Petitioner demanded reimbursement in the amount of three hundred dollars from the Respondent for the training program.

   
   

7. The Respondent has refused to pay the three hundred dollars as he has a different interpretation of the statute which gives the Petitioner the authority to seek reimbursement. The Respondent contends that he was not a "trainee" as defined by the statute. He further asserts that the agency had the opportunity to seek an exemption from the program for Respondent. When the agency chose to send an experienced probation officer to a training program that could have been waived, it did so without right to reimbursement.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Section 943.16(2), Florida Statutes, empowers the Department of Corrections, as the employing agency, to require a trainee in a basic recruit training program to reimburse tuition costs to the agency if he resigns from his employment in less than one year.

   
   

10. In construing the term "trainee" as used in the statute, it is necessary to refer to the rules concerning the training programs for correctional probation officers. A review of Chapter 11B-29, Florida Administrative Code, clearly demonstrates that the term "trainee" means a person who is enrolled in a training program which has been approved by the Commission.

    
    

11. Section 943.131, Florida Statutes, grants the Commission the authority to exempt a person employed by an agency from the basic recruit training program. Chapter 12B-24, Florida Administrative Code, contains procedures which

    can be used by the Commission to evaluate a correctional probation officer who seeks certification based upon equivalency of training.

    
    

12. Section 943.131(2)(a), Florida Statutes, and Rule 11B-24.004(2), Florida Administrative Code, require the employing agency to initiate the evaluation of an application for equivalency training. If the Commission disapproves the application, only the agency has standing to challenge the disapproval. Section 943.131(2)(b), Florida Statutes; Rule 11B- 24.003(6), Florida Administrative Code. Accordingly, it is the agency who determines if the application should be submitted, not the applicant.

    
    

13. Section 943.1395, Florida Statutes, provides that any certified probation officer who is not reemployed by an agency within four years must complete a basic recruit training course. On the date that the Respondent was hired by the agency, he had not been employed in any state as a correctional probation officer for almost three and one-half years. Based upon the certification guidelines set by the Legislature, the agency's decision to require his attendance in the basic training program strongly complied with the intent of the certification laws promulgated by this state.

    
    

14. The Respondent attended the basic recruit training program. The training he received in the program was used by the Commission in its determination that he should be certified as a correctional probation officer in Florida. The Respondent did not remain with the agency for the full one-year period which would require the agency to be responsible for his tuition cost in the training program.

Based upon the foregoing, it is RECOMMENDED:

That a Final Order be entered finding that the Petitioner can require the Respondent to reimburse the cost of his tuition for the basic recruit training program. If the tuition cost is not reimbursed, the Petitioner may institute a civil action for collection.

DONE AND ENTERED this 10th day of October, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1627

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See H.O. #3.

2. Accepted. See H.O. #1.

3. Accepted in that the Respondent attended the training course. See H.O. #4. Rejected as to the amount owed as that determination is beyond the jurisdiction of the Hearing Officer. If the parties do not agree on the amount of tuition, the agency may institute a civil action under Section 943.16(2), Florida Statutes.

4. Accepted. See H.O. #6.

COPIES FURNISHED:

Gary Treakle

14100 East Tamiami Trail #313

Naples, Florida 33962

Lynne T. Winston Assistant General Counsel Department Of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Richard Dugger, Secretary 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Docket for Case No: 88-001627

Orders for Case No: 88-001627