The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary D. Latham (Latham), began serving as a member of the Florida Parole Commission (Parole Commission) on July 24, 1992. At the time of the final hearing, he was continuing to serve as a parole commissioner. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an administrative secretary to the general counsel's office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be referred to in this recommended order as Ms. Billingslea. Effective May 27, 1994, Ms. Billingslea was promoted to the position of executive secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of senior executive secretary to the chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as Latham's executive secretary since Latham had previously interviewed Ms. Billingslea for an executive secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed with Chairman Wolson and her administrative assistant, Gene Strickland, the possibility of transferring Ms. Billingslea to Latham's open position. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a commissioner's office because the work in the chairman's office was more administrative than the work in a commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billinglea was reassigned to the position of executive secretary to Latham. Because there is only one position of senior executive secretary at the Parole Commission (the chairman's secretary), this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Latham's executive secretary, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billinsglea understood that the chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will be almost as if he's going to say something but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At this time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. When the Parole Commission denies parole, a report referred to as a 947.18 report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner, and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham was assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told her that she had done nothing to make him approach her in this way but that he did not know what had come over him lately; he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she would not be working for him but that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later that same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair and preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited nor encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billinsglea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill, to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She tried to call the office to advise that she would be late, but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal. After Ms. Billingslea spurned his advances, he began to voice his dissatisfaction with her work hours. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could make which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems, and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland, and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billinglea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office, and after Ms. Billingslea left, he asked to speak with Chairman Wolson. Latham wanted to know what was going, on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching it up with a victory signal and saying, "Yes." He left Chairman Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him, but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was transferred to the position of executive secretary in Clemency. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Gary D. Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed, as well as a public censure and reprimand. DONE AND ENTERED this 8th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1997. Tallahassee, Florida 32399-1050 Gary D. Latham, pro se 4622 The Oaks Drive Marianna, Florida 32446 Mark Herron, Esquire Akerman, Senterfit & Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman, Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of the hearing date of March 15, 1982, the commission had not prepared subject-matter indices of its Orders entered after January 1, 1975 resulting from: petitions for rulemaking; hearings held pursuant to Section 120.57, Florida Statutes. determinations relating to presumptive and effective parole release dated (parole grants) or parole revocations; petitions for a declaratory statement issued prior to approximately July of 1981, or other final orders not otherwise defined. Other than as referred to in paragraph 2 of these Findings of Fact, the Commission has not produced indices of its current 1981 orders. (TR. 9) Neither the Commission's General Counsel nor the Planning and Evaluation Director, both of whom receive their assignments of duties and responsibilities from the Commission, have been directed by the Commission to prepare a subject- matter index of final Commission orders issued pursuant to hearings held under Section 120.57, Florida Statutes, or petitions for rulemaking. (TR. 34, 35, 37 & 104) The Commission's General Counsel and Planning and Evaluation Director would prepare such indices only if directed to do so by the Commission. (TR. 35 & 104) The General Counsel's office has been directed by the Commission to prepare an index of declaratory statements issued by the Commission. With the aid of an assistant counsel, the Commission's General Counsel has prepared a subject-matter index of declaratory statements purportedly issued as of September 30, 1981. (Appellant's Exhibit 3) This index utilizes key words or topics, without further citation to statutes or rules. It includes all declaratory statements issued by the Commission during the approximately ninety- day period prior to September 30, 1981. The General Counsel, who has been in that position since March of 1980, was aware of no other declaratory statements issued by the Commission or petitions for a declaratory statement submitted to the Commission. (TR. 108) A draft of an update to the subject-matter index for declaratory statements issued after September 30, 1981 has been prepared and was expected to be in final form within thirty days of March 15, 1982. The Office of General Counsel will prepare and produce an updated subject-matter index of declaratory statements on at least a quarterly basis. (TR. 101-103) As indicated by the opinions rendered in the case of Turner v. Florida Parole and Probation Commission, 379 So.2d 148 (Fla. 1st DCA, 1980) aff'd, 389 So.2d 1181 (Fla. 1980), and various issues of the Florida Administrative Weekly, 1/ petitions for a declaratory statement have been received and ruled upon by the Commission prior to July 1, 1981. As noted above, the witnesses presented by the Commission to testify in this proceeding had not been assigned the task of preparing subject-matter indices for orders on petitions for rulemaking, orders following hearings conducted pursuant to section 120.57, Florida Statutes, and other final agency decisions which are equivalent to "orders". Involved in the preparation such indices would be a review of the file and a development of a subject heading or headings for each such order. The Commission presented no further evidence regarding the practicability or cost of preparing such indices or any lack of public benefit to be derived from access to such indices. Absent such evidence, it is specifically found that it would not be impracticable, unduly time- consuming, or cost-prohibitive for the Commission to prepare or produce subject- matter indices of its Orders resulting from petitions for rulemaking, Section 120.57 hearings or other final agency decisions which are equivalent to "orders." Whatever inconvenience such indices cause the Commission in terms of time and costs of preparation are far outweighed by the public benefit to be derived from accessibility to the Commission's interpretations of the law and development of agency practice and incipient policy. The Commission has failed, without sufficient justification, to comply with the Court's mandate and Order dated September 3, 1981, to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking" and has further failed to comply with its own approved proposal to produce induced of current 1981 orders on or before November 30, 1981. Because of a change in the statutes effective January 1, 1979, with respect to the granting of parole and the establishment of presumptive and effective parole release dates, orders of the Commission entered prior to that date have no relationship to orders entered after that date. Therefore, the public would gain no present benefit from an index of parole granting orders entered prior to January 1, 1979. The appellant, Florida Institutional Legal Services, Inc. , has withdrawn its request to have the Commission index parole granting orders issued from January 1, 1975 through December 31, 1978. (TR. 12 & 13) As to the period between January 1, 1979 through December 31, 1980, it would be beneficial to the public to have access to an index of only those parole granting orders which contain a reference to a constitutional provision, statute or rule, since such orders may contain the agency's interpretation of the law or incipient policy. The parole revocation process has not changed since 1975. It would be beneficial to the public to have access to all those parole revocation orders of the Commission entered since 1975 which contain a reference to a constitutional provision, statute, or a rule. Jay D. Farris, the Commission's Planning and Evaluation Director, has been appointed by the Commission to be in charge of the indexing project as it relates to parole granting orders (which includes Commission determinations on presumptive and effective parole release dates) and parole revocation orders. This assignment is in addition to his other duties which include the drafting of all legislation for the Commission, lobbying, acting as a part-time clerk of the Commission, preparing complex case analysis for the Commission, the drafting of proposed rules, holding public hearings for proposed rules and training Commission hearing examiners when there are rule changes. Mr. Farris has only a secretary on his staff. (TR. 28, 29) Since the District Court entered its opinion on November 26, 1980 (petition for rehearing denied on January 8, 1981) reported at 391 So.2d 247, the Commission, through Mr. Farris, has conducted an investigation into the number of Commission actions which could possibly fall within the parameters of the Court's ruling regarding the prepartion of subject-matter indexing. It was determined that a minimum of 600 actions per week would fall under the purview of that decision. A private indexing firm would charge approximately $1.00 per action to review the data and produce an index. (Tr. 16) Determining that this cost would be prohibitive, Mr. Farris has been working with the Bureau of Management Information Systems (MIS) of the Department of corrections to prepare a computer program which would meet the Commission's indexing requirements. By statute, the department of Corrections maintains the sole offender-based information and records system for the joint use of the department of Corrections and the Commission. Section 20.315(20) Florida Statutes. The function of the Bureau of Management Information Systems of the Department of Corrections is the automation of departmental records for ease of retrieval and management information. To accomplish this function, the Department of Corrections shares a computer with the Supreme Court of Florida, with the Department owning 67 percent and the supreme Court owning 33 percent of the computer. The computer itself is located in the basement of the Supreme Court, but the Department of Corrections has approximately 40 terminals located in its headquarters in Tallahassee and in excess of 100 terminals located throughout the State. The computer maintains a complete offender record of each Florida inmate. This record includes the inmate's date of birth, race, sex, the offense for which he or she is incarcerated, other offenses, gain time accrued, presumptive, projected and current release dates and FDLE and FBI numbers. Without the prior preparation of a specific program by the Bureau of MIS, it is not possible to retrieve from the computer any generic information on Florida inmates. For example, while the computer presently has the ability to produce a screen view of the record of any particular inmate, it cannot search through its entire data base and produce screen printouts of the names of all those inmates meeting any particular criteria, such as those serving a mandatory 25-year capital life sentence. (TR. 91-94) The records of 53,700 offenders are presently contained in the computer's data base, with some 24,000 records being for active inmates. (TR. 93) In December of 1981, the Commission, through Mr. Farris, entered into discussions with Reynold L. Ferrari, the Chief of the Bureau of MIS for the Department of Corrections, and his staff regarding the subject of utilizing the computer system to produce and maintain a subject-matter index for Commission orders concerning the granting and/or revocation of parole. A basic technical problem presently exists in the computer program utilized by the Department of Corrections. The computer is only designed to handle single actions taken by the Commission on any particular day. Often, multiple separate actions by the Commission are taken in one day on a particular inmate, and the present computer programming does not allow multiple entries at one point in time. This problem is one of systems design and involves more than reprogramming. It involves a definition of a new data base that will have to be created for the Commission, and then programming it to provide the input capability to add additional data and defining the output reports that are required. (TR. 90) Once a systems design is accomplished and all the relevant data is in the computer, it will take about three weeks or less to produce a program that would result in a printout format similar to that developed and utilized by the Commission in its declaratory statement index. (Appellant's Exhibit 3, TR. 79, 84, 85) The Commission has not specifically or formally requested the Department of Corrections to resolve the multiple-action problem. It has simply asked the Department to look into the problem and estimate the length of time it would take to accomplish certain results. (Appellee's Exhibit 2) Mr. Ferrari has informed the Commission that he would need an exact and specific definition of the output required by the Commission and would work with the Commission and its staff in achieving the desired goals. (Appellee's Exhibit 3, TR. 89, 90) The answer to how long it would take to redesign the system is dependent upon a detailed definition of the information needed by the Commission. (TR. 98) A detailed statement of what is required by the Commission has not been provided to the Bureau of MIS. (TR. 99) The only evidence adduced by the Commission as to its time frame for providing the format the Commission requires was the statement of Mr. Farris that "I would like to have had it done some time ago, but just as soon as I possibly can. This has received a great deal of priority, I must say." (TR. 72) The Commission did make a budget request for two new positions--a data entry operator and a clerk typist III--in order to comply with indexing requirements and to augment their data input ability. (TR. 74, Appellee's Exhibit 4) Presently, the only information being provided by the Comission to the computer data base is current, single Commission action regarding presumptive parole release dates (PPRD) and the inmate's next interview date. Included within the PPRD information presently being put into the computer is a code which makes reference to aggravating factors contained in the Commission's rules. (TR. 69, 70) Prior Commission's actions regarding PPRDs have not been put into the computer data base. The manner in which this information will be retrieved or the printout format has not been developed yet. (TR. 52, 53) It is expected that the format will be similar to that developed for the index of declaratory statements. (Appellant's Exhibit 3). The Commission has not requested the department of Corrections to produce any particular format for a subject-matter index of parole granting or parole revocation orders (TR. 53, 54) and no evidence was tendered as to when such a request would be made. Mr. Farris, the person responsible for such indices, could give no specific date for the production of such indices (TR. 38) While the Commission has not prepared a final proposed style of indexing for Commission actions regarding presumptive and effective parole release and parole revocations, it is expected that such indices would be broken down by topic similar to that prepared by the Commission for declaratory statements. It is not known whether such indices will include citations to constitutional provisions, statutes or rules. (TR. 64) According to Mr. Farris, "the specification of the nature of the index is yet to be determined." (TR. 66) RECOMMENDATIONS TO THE COURT The undersigned, as the appointed commissioner of the Court, has been charged with the responsibility to take evidence and report recommendations to the Court with respect to a determination of the following issues: The practicability of the Commission preparing indices of its orders entered from 1975 through 1980; and The reasonableness of the schedule proposed by the Commission in light of the proposed contents of the indices, the cost of preparation, and the public benefit to be gained therefrom. Prior to addressing those issues, it must first be noted that, with the exception of preparing a subject-matter index for a portion of its declaratory statements, the evidence adduced at the hearing illustrates that the Commission has made absolutely no effort to produce indices of its current 1981 orders. This action is contrary to the Court' s original mandate as well as Paragraphs 1 and 2 of the Court's Order entered on September 3, 1981. There has been absolutely no evidence adduced in the proceedings before the undersigned as to a legitimate reason or justification for such noncompliance with the Court's directives. Indeed, the evidence illustrates that the Commission has simply not directed its attention to this important matter. Any problems attendant to the computer system utilized by the Department of Corrections should have absolutely no effect upon the ability of the Commission to immediately prepare subject- matter indices for all its Orders resulting from petitions for a declaratory statement, hearings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking or other matters which result in the issuance of the functional equivalent of an "order" as it is defined in Section 120.52(9). Florida Statutes. Turning now to the issues addressed in Paragraph 3 of the Court's September 3, 1981 Order, it is concluded from the evidence adduced at the hearing that it would not be impracticable or cost-prohibitive for the Commission to immediately prepare indices, whether arranged by subject matter and/or citations to constitutional, statutory or regulatory provisions, for its Orders entered from 1975 through 1980 in those matters arising from: petitions for a declaratory statement, proceedings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking, and cases, such as the instant proceeding, which result in the functional equivalent of an "order" as defined in Section 120.52(9), Florida Statutes. The public benefit to be gained from such indices is obvious since such Orders are indicative of an agency's interpretation of the laws under which it operates and can indicate incipient agency policy as developed on a case-by-case basis. The Commission has made no good-faith effort or diligent attempt to comply with its own schedule for the accomplishment of the preparation of indices for the Orders listed above and neither the contents, costs, or practicability of preparing such indices justify the time frame proposed. With respect to the remaining Orders issued by the Commission between 1975 and 19890--those involving parole grants and parole revocations--it is concluded that an index of Orders on parole grants entered prior to 1979 would not be beneficial to the public due to the drastic change in the law which became effective on January 1, 1979. It is further concluded that only those post-1974 Orders concerning parole parole grants which contain a reference or citation to a constitutional, statutory or regulatory provision would contain information beneficial to the public. Therefore, an index limited to such Orders would satisfy the requirements of Section 120.53(2)(c), Florida Statutes. The Commission has failed to adduce evidence that the preparation of a subject-matter and/or citator index for its Orders entered after January 1, 1975 involving parole revocation and its Orders entered after January 1, 1979 involving parole grants would be either impracticable or cost-prohibitive. While the computer system will need to be redesigned to accomplish multiple- entries in cases where the Commission takes more than one action on the same date regarding a single inmate, it is possible to make this change. The Bureau of Management Information Systems stands ready and able to effectuate such a design change and is simply waiting for a specific and detailed definition of the information sought to be retrieved by the Commission. Again, from the evidence adduced at the hearing, it appears that the Commission has simply made no diligent or good-faith effort to determine the format of the required indices or the information it desires to accomplish the indexing task. In summary, it is concluded that the Commission, along with the joint assistance and efforts of the Department of Corrections, presently has or can quickly obtain the capability of preparing indices of all Orders entered from 1975 through the present date. The Commission presented no evidence that the preparation of such indices would be cost-prohibitive, or that, other than its lack of attention to the matter, the contents of the indices would make the task unduly time-consuming or would otherwise render the indexing requirement prohibitive. With the exception of pre-1979 parole granting Orders and Orders granting or revoking parole which contain no reference to a constitutional, statutory or regulatory provision, the public will benefit from an index of, and consequently access to, all Orders of the Commission. In order to accomplish the indexing task, the Commission need only render a determination of the format for each index and provide the staff to either review the files containing the Commission Orders or provide the necessary input to the computer system so that the required information can be retrieved from the computer. The evidence presented by the Commission illustrates that not only has the Commission failed to adhere to its own proposed schedule of compliance with the law, the schedule proposed is unreasonably lengthy in terms of the contents, cost and information presently available, as well as the public benefit to be derived from the production of the indices. Respectfully submitted and entered this 4th day of June, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 4th day of June, 1982.
