Findings Of Fact Petitioner is an inmate incarcerated at Tomoka Correctional Institution, Daytona Beach, Florida. He is presently serving a sentence of 60 years and has a presumptive parole release date of 180 months. Petitioner specifically challenges the validity of the matrix time range contained in Rule 23-21.09(5), Florida Administrative Code. That provision contains a matrix which sets the time ranges for presumptive parole release dates. A copy of that matrix is attached to this order as Appendix I. The most current matrix was last amended effective October 1, 1982. The initial or first matrix was developed and became effective in 1979 in response to legislation adopted in 1978 which required the Parole and Probation Commission (hereafter referred to as Commission) to develop and implement objective parole guidelines. Prior to this time, the granting or denying of parole had been a subjective decision by the commissioners and required a majority vote of the commissioners. In originally developing the matrix, the Commission used the Thurston Scaling Method in ranking various criminal offenses from least to most serious offense. This method involved providing each of the Commissioners with 40 index cards on which the various criminal offenses were written. Each commissioner then ranked the various criminal offenses in order of seriousness. The Board then reviewed the results and arrived at a consensus on the ranking of the various crimes. The Thurston scaling methodology is an accepted scientific methodology for ranking different crimes by level of seriousness or severity. This methodology was recommended to the Commission by three consultants in the field of parole. These same three experts, Peter Hoffman, Director of Research for the U.S. Parole Commission, Dale Parent, Director of the Sentencing Guidelines Commission for the State of Minnesota, and Betty Taylor, a parole commissioner for the State of Oregon, advised and consulted with the board in developing the objective parole guidelines. After the initial matrix was adopted as a Commission rule, it was reviewed on an annual basis as required by statute. Since 1979, some changes in the matrix have been adopted by the Commission based upon their annual review. Each change was adopted as a rule change and the procedures for adopting or amending administrative rules were followed. The procedure for adopting the rule changes generally took at least 90 days. The present matrix contains six categories of crimes broken down by degrees. Each inmate is assigned a salient-factor score and by using this score with the offense for which the person was sentenced a time range for the Presumptive parole release date for that individual is obtained from the matrix. The Commission sets the presumptive parole release date within that range unless other factors warrant going outside that range by extending or reducing the number of months to the presumptive parole release date. The inmate's presumptive parole release date may also be extended for unsatisfactory institutional behavior while incarcerated. The Commission, in granting or denying parole, considers the total case package including those specific reasons which may serve as a basis for going above or below the matrix time range. When the Commission goes outside the matrix time range it must state its reason for doing so. Prior to March 1983, the forms of the Commission's actions were filed in a central storage area. In March 1983, the mechanism became available for feeding this information into the computer. Using the computer and data which is maintained by the Department of Corrections, the Commission now generates quarterly reports. These reports provide a statistical analysis which indicates whether the guidelines are being following by the Commission. This same data also provides a possible indicator for needed changes in the guidelines. All revisions to the guidelines must now be made based upon such statistical analysis. Sentencing guidelines and objective parole guidelines are separate. The salient-factor scores for the sentencing guidelines and objective parole guidelines are similar, but not the same. Sentencing involves a separate branch of government, a separate function, separate measurements, and separate criteria. Sentencing can be done only by a court of law and is accomplished by court order. Sentencing sets the limit of the incarceration period. The parole function is a function of the executive branch and cannot be ordered by the Commission. An offer of parole is tendered or offered by the Commission and the inmate may accept or reject the offer and its condition. If the inmate accepts an offer of parole, the form used is a contract form which must be signed and agreed to by the inmate. Parole results in release under supervision whereas completion of the sentence results in full release without conditions or supervision. Section 947.165(2), Florida Statutes, was amended by the 1982 legislature. See Session Law 82-171. Prior to this amendment, changes made in the objective parole guidelines were to be based upon the "experience" of the commission. The amended section provides that the Commission shall review the guidelines at least once each year and make any revisions considered necessary by virtue of statistical analysis of Commission actions. The initial report of the data generated by this statistical analysis was to be due January 30, 1983. See Florida Statute 947.13(3)(1982). The Commission and its staff began work immediately after the passage of 82-171 to implement the statistical analysis and reporting requirements.
The Issue Whether Respondent, John C. Minder, committed the violations alleged in the Amended Administrative Complaint issued by the Department of Agriculture and Consumer Services (Petitioner) on November 17, 2014; and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of professional mappers and surveyors pursuant to chapter 472, Florida Statutes. At all times material, Respondent was a licensed professional surveyor and mapper in Florida, having been issued Florida license number LS 4071. In December 2012, a three-count AC was issued to Respondent alleging violations of “former” sections 472.0351(1)(g), and (h), Florida Statutes (2012), through violating Florida Administrative Code Rules 5J-17.052(2)(a)8.d., and 5J-17.052(2)(c)1.a.5/ Respondent “freely and voluntarily” entered into a Settlement Stipulation with Petitioner that resolved the AC. That Settlement Stipulation contained the following provision at paragraph 11(e): Respondent shall provide the Board with a list of all signed and sealed surveys containing a minimum of six (6) surveys which were performed by Respondent within 120 days of the Final Order. The Board’s Probation Chair will randomly select (6) of Respondent’s signed and sealed surveys for review from the survey list submitted by Respondent. Within seven (7) calendar days6/ of being notified by the Board of the surveys which were selected for review, Respondent shall have post-marked and submitted to the Board Office signed and sealed surveys for the surveyed properties selected for review, along with copies of the relevant field notes, the relevant full size record plats, all measurement and computational records, and all other documents necessary for a full and complete review of the surveys, in accordance with Florida Administrative Code Rules 5J-17.016, 5J-17.083, and 5J-17.085. Respondent must attend the Probation Committee meeting at which the surveys are to be reviewed. Failure to comply with this provision may result in Respondent being referred to the Department for non-compliance with the final order of the Board, and the Board may lift the stay of suspension. Respondent provided a list of his signed and sealed surveys for review. In accordance with the Board’s procedures, the Board chair randomly selected six surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review. Respondent admits he appeared before the November 6, 2013, Committee meeting. The excerpt transcript of the November 6 Committee meeting recorded a discussion between the Committee members and Respondent. It further recorded that the Committee voted to “deny the [Respondent’s] six surveys.” The excerpt transcript of the November 7, 2013, Board meeting, aside from the cover page indicating that it involved Respondent (“IN RE: JOHN C. MINDER”), fails to specifically identify Respondent or the action that the Committee wished to be directed towards him.7/ Further, the transcript fails to reflect the actual vote taken by the Board, as the recording and transcript stopped before the vote was recorded. Respondent provided a second list of all his signed and sealed surveys for review. The Board chair randomly selected six new surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review. Respondent admits he appeared before the February 19, 2014, Committee meeting.8/ The excerpt transcript of the February 19, 2014, Committee meeting recorded another discussion between the Committee members and Respondent. It further recorded that the Committee voted not to accept Respondent’s “second round” of surveys, and to lift the stay on Respondent’s license suspension until he “takes and passes the Florida Jurisdiction.” The excerpt transcript of the February 20 Board meeting reflects that the Committee reported to the Board: John Minder appeared with a second set of surveys. They were denied. He must take and pass the Florida jurisdiction portion of the State exam.9/ The Board’s Order Lifting Stay of Suspension, rendered on March 17, 2014, in pertinent part, provides the following: THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED: The report and recommendation by the Committee is hereby adopted. Respondent’s license is hereby SUSPENDED. If the Respondent files a written Petition for Reinstatement in conformity with the applicable administrative Rules (including but not limited to Rules 5J-17.083 and 5J-17.085, Fla. Admin. Code,) then the Board may consider the Petition and may reinstate the license. The Committee’s report only stated that Respondent “must take and pass the Florida jurisdiction portion of the State exam.” There is no Committee recommendation of lifting the stay of suspension or a suspension of Respondent’s license. Mr. Roberts was the only person to testify at the hearing. Mr. Roberts is not and never has been a licensed surveyor or mapper. His discussion of the probation process was helpful; however, he did not provide any direct testimony supporting the Complaint. His hearsay testimony cannot support a finding of fact. Although Mr. Roberts testified to what he saw Respondent provide and what the Committee members saw, his testimony cannot support the allegations that the surveys Respondent submitted were not in compliance with Minimum Technical Standards. There was no credible expert testimony provided to support the Petitioner’s allegations. Further, when asked the following: “And at that [General Board] meeting was a decision made to enter an order lifting a stay of suspension upon Mr. Minder’s license?” Mr. Roberts responded: “To the best of my recollection, the Board decided and voted unanimously to lift the stay of suspension on Mr. Minder’s license.” The Board transcript does not substantiate that recollection. Petitioner did not prove that Respondent’s surveys failed to meet minimum standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers issue a final order dismissing the Complaint. DONE AND ENTERED this 11th day of February, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2015.
The Issue The issue in this case is whether Respondent's temporary directive, which requires probation officers to request and obtain supervisor approval on a case-by-case basis before incurring travel expenses for certain field visits, meets the definition of a "rule" in section 120.52(16), Florida Statutes (2011),1/ which should have been promulgated as such.
Findings Of Fact Respondent is the state agency with "supervisory and protective care, custody, and control of the inmates, buildings, grounds, and property, and all other matters pertaining to [specified correctional facilities and programs] for the imprisonment, correction, and rehabilitation of adult offenders[.]" § 945.025(1), Fla. Stat. (setting forth Respondent's jurisdiction). By far, Respondent's resources, including personnel, are primarily devoted to Respondent's responsibilities over correctional facilities and programs. There are approximately 17,000 certified officers on the correctional institution side. Respondent also is the state agency responsible for supervising offenders who are granted conditional release from incarceration or who are granted parole by the Parole Commission (chapter 947, Florida Statutes), as well as the state agency responsible for supervising probationers placed on probation (or in community control, known commonly as house arrest) by a court (chapter 948, Florida Statutes). Collectively, persons who have been conditionally released, parolees, and probationers will be referred to as "offenders." A relatively small percentage of Respondent's resources, including personnel, are devoted to the supervision of offenders. There are approximately 2,100 certified parole and probation officers providing community supervision. Organizationally, Respondent's supervisory functions fall under the umbrella of Community Corrections. The supervision of offenders statewide is divided into a northern and southern region, each covering ten of the state's 20 judicial circuits. Each region is headed by a regional director, who oversees the supervision of offenders within the region's ten judicial circuits. Each of the 20 judicial circuits has a circuit administrator. Each circuit also used to have a deputy circuit administrator, but that position was eliminated in 2009. Reporting to the circuit administrators are probation supervisors, who supervise and coordinate the activities of individual probation officers and probation officer specialists. Offenders are assigned to certified probation officers and probation officer specialists, who directly carry out the supervisory functions. See § 948.01(1)(a), Fla. Stat. (an offender on probation or community control is to be supervised by an officer meeting the qualifications in section 943.13, Fla. Stat.). A probation officer specialist is a probation officer with a certain level of experience to whom the offenders with the most serious criminal records are assigned. Unless otherwise specified, the term probation officer will be used, in the broad sense, to include both probation officers and the more experienced probation officer specialists. In carrying out its community supervisory functions, Respondent's goals are all of the following: to ensure compliance with the conditions of supervision imposed by the court or by the Parole Commission; to ensure public safety; to foster rehabilitation of the offender; and to reduce or eliminate future victimization. Probationers may be placed on probation, in lieu of incarceration, or as part of a split sentence that includes incarceration followed by probation. §§ 948.011 and 948.012. The starting place for supervision of a probationer is the court's order of supervision, which specifies the terms and conditions of probation. Respondent is charged with preparing a form order of supervision for the courts to use. § 948.01(1)(b). The form order prepared by Respondent and used by the courts reflects the standard conditions of probation which may be imposed by the courts, enumerated in section 948.03. The form order also provides options for the court to exercise its authority and discretion to impose special terms and conditions. See, e.g., §§ 948.031 through 948.039. The standard conditions of probation that may be imposed by a court in its order of supervision are broadly worded and general in nature and include the following: Report to the probation and parole supervisors as directed. Permit such supervisors to visit him in his or her home or elsewhere. Work faithfully at suitable employment insofar as possible. Remain within a specified place. Live without violating the law. The statutes and standard terms of probation do not dictate or specify how, precisely, Respondent is to carry out its supervisory function in monitoring offenders to serve the goal of ensuring compliance with these terms. The concept of "supervision" is not quantified, such as by specifying how often an offender must report to his or her probation officer or whether and how often probation officers may or will visit an offender in his or her home or elsewhere. A court's order of supervision could theoretically provide a condition specifying that a probationer must go to his or her probation officer's office twice a month or five times a month. However, the one sample order of supervision entered in evidence in this case did not impose any such terms quantifying the number of office visits or other visits that the unidentified probationer had to make with his or her probation officer. With respect to "supervision," section 948.12 provides a distinction for violent offenders who are on probation following incarceration by providing that these offenders "shall be provided intensive supervision by experienced probation officers." However, just as the statutes do not purport to specify or quantify what is meant by "supervision," there is no statutory specification for what is meant by "intensive supervision." Respondent has had, apparently as far back as 2002, internal procedures in place to provide detailed processes for probation officers to follow in carrying out their duty to supervise offenders assigned to them. These procedures are published in a 41-page document called Procedure 302.303, which Respondent considers a "restricted access" document for internal use only. One subject addressed in Procedure 302.303 is an offender classification system. The current classification system was designed in-house and then validated by the Florida State University School of Criminology. The system considers a number of variables and is used by Respondent as a way to group offenders in an effort to ensure that supervision is provided at a level commensurate with the danger or risk the offender represents to the community. This offender classification system, which is not promulgated as a rule, is not the subject of Petitioner's challenge. Procedure 302.303 also addresses the subject of contacts expected to be made by a probation officer with individual offenders assigned to the officer. In general terms, Procedure 302.303 specifies minimum contacts, by type and frequency, that probation officers are expected to make, or try to make, for each of their assigned offenders. The types of contacts include office visits, meaning the offender comes into the probation officer's office for a meeting; other kinds of visits, scheduled or unscheduled, when the probation officer travels outside the office to visit or attempt to visit the offender in his home, in his place of employment, or another place; and field visits with third parties, when the probation officer travels outside the office to visit or attempt to visit the offender's employer, treatment providers, family, neighbors, or other third persons who might have information about the offender. Different minimum contact requirements, by type and frequency, are provided for each of the different offender risk classification categories in Procedure 302.303. The minimum contact standards are performance standards that apply to probation officers; without the minimum contact requirements, some probation officers might do less than the minimum. These minimum contact standards, which have not been promulgated as a rule, are also not the subject of Petitioner's challenge. Instead, Petitioner's challenge is directed to a recent temporary directive by Respondent that suspended some aspects of the (unpromulgated) minimum contact standards in Procedure 302.303. In lieu of these minimum contact standards, Respondent's directive provides that probation officers need to request and receive permission of their supervisors on a case-by- case basis to incur travel expenses for certain field visits. As a related part of the directive, supervisors are given discretion to approve travel expenses for any field visit if there is reason to believe there may be a violation of a condition of supervision or if there is reason to believe that there is a threat to public safety. The challenged directives were first communicated verbally on February 29, 2012, in a telephone conference call between Jenny Nimer, assistant secretary of Community Corrections, and the Community Corrections regional directors, and then reduced to writing in the following memorandum dated March 2, 2012, on the subject of "Reduced Travel" (Reduced Travel Memo) from Assistant Secretary Nimer to Community Corrections regional directors and circuit administrators: On 2/29/12 directives were provided for adjustments to be made on some non-critical supervision activities. As these directives are temporary and related to "restricted" policy areas they were given verbally; existing written policy will not be changed. Our goal is to reduce the travel budget by focusing on mission critical activities without compromising public safety. Travel related to core operational duties will continue; however all travel will be reviewed for efficiency. NO adjustments have been made to travel that involves investigation of known or suspected violations, violation proceedings/subpoenas, investigations or instruction of offenders in correctional facilities. Adjustments are focused on reduction of department established minimum contact standards and administrative duties. There is an urgent need to reduce travel costs for the remainder of the fiscal year; however public safety is the utmost priority and supervisors maintain the discretion to approve any travel that is needed to accomplish officer safety and protection of the community. For the months that adjustments are in place (March, April, May and June) officers will annotate electronic field notes for offenders requiring field contacts during the month, as follows: CN--"Contact Standards Adjusted". Alternative methods to verify (and re-verify) residence and employment during this period, including making telephone calls to the landlord and employer or instructing the offender to provide bills and paychecks to show proof of residence and employment will be utilized. Contact codes for purposes of electronic case notes for residence and employment verification will be HV, EN, or EV and text should indicate the alternative method utilized for verification. Planned Compliance Initiatives will continue; partnerships established with local law enforcement remain essential to enhance surveillance and contacts made in the community. These contacts should always be documented in case notes. Circuit Administrators are directed to reach out to judiciary, state attorney and law enforcement to ensure that they are aware of the limited scope of this reduction and that contacts required to ensure offender supervision and/or threats to public safety will not be compromised. Thank you for your cooperation during this difficult time. The Reduced Travel Memo was distributed to probation officers as the means by which Respondent communicated to its probation officers that they would not be expected to comply with all of the minimum contact requirements set forth in Procedure 302.303 between March 1, 2012, through the end of the fiscal year, June 30, 2012. The expectation was, at the time of the challenged statement, that this cost-saving measure was temporary and that the (unpromulgated) minimum contact requirements in Procedure 302.303 would resume as of the new fiscal year beginning July 1, 2012. As of the final hearing on June 6, 2012, Respondent's expectation was unchanged. The announced temporary replacement of minimum contact requirements based on risk category with a procedure for supervisor review and approval of field contacts remained just that--temporary--and the expectation was that the minimum contact standards set forth in Procedure 302.303 would resume for the fiscal year beginning July 1, 2012. Petitioner hinted at, but offered no evidence to prove the notion that Respondent did not really intend to resume the minimum contact standards in the fiscal year beginning July 1, 2012.4/ The Reduced Travel Memo and a March 2, 2012, letter from Secretary Kenneth S. Tucker (Tucker Letter), represent the challenged agency statements in that these two documents memorialize the temporary directive.5/ As explained in the Tucker Letter: Due to a 79 million dollar deficit, the Department has had to make temporary modifications to field contact requirements in order to reduce travel expenditures by probation officers. . . . Our probation officers will continue to make field contacts with sex offenders and community control offenders in order to closely monitor sex offender conditions and/or house arrest requirements. Probation officers will continue to monitor other supervised offenders' compliance with conditions of supervision and probationers will still be required to meet monthly with their probation officer at the office. In addition, probation officers will make field contacts in the community as necessary to investigate non-compliance or possible violations. Probation officers will also continue to participate with law enforcement in Planned Compliance Initiative (PCI's) in the community. Probation officers will use this opportunity to spend more time with offenders in the office or on the telephone, assisting with job referrals or other resources and services needed. Community Corrections undertook an analysis of its budget in an effort to identify expenditures where cost savings might be realized to help reduce the budget deficit. The three significant budget categories of expenditures were salaries, leases, and expenses. There had been a hiring freeze in place for some time already, and so an effort was made to not cut personnel to save salary costs. There also had been a concerted effort to reduce lease costs by consolidating offices to eliminate some leases. The viable short-term option to cut costs for the remainder of the fiscal year was in the expense category, which was predominately travel reimbursement. It was determined that, over the year, Community Corrections was averaging between $250,000 and $300,000 per month in travel reimbursement. Some travel reimbursement had already been reduced before the temporary directive challenged here. For example, Community Corrections personnel, including probation officers, might travel to participate in training programs. However, training had already been greatly limited. Some travel reimbursement could not be reduced, such as reimbursing probation officers for necessary travel for court appearances. In these instances, efforts were made to use state cars and to encourage carpooling, if possible. Community Corrections assessed the number of field contacts and attempted contacts that were being made by probation officers to comply with Respondent's minimum contact standards and the travel reimbursement associated with them (i.e., the contacts). Respondent estimated that its temporary directive, challenged here, would reduce travel costs by $150,000 per month for each of the four months in which the directives would be in place. In total, Respondent expected to save $600,000. Respondent's actual experience following issuance of the Reduced Travel Memo and Tucker Letter shows that Respondent's estimates were on target. In February 2012--the last month before the temporary suspension of some of the minimum contact standards--travel reimbursement totaled $277,000. After switching to a procedure of case-by-case probation officer request and supervisor review to approve field visits, travel reimbursement was down to $99,000 in March 2012, a savings of $187,000, compared to February. In April 2012, travel reimbursement dropped to $80,000. The evidence established that the discretion afforded probation supervisors in the Reduced Travel Memo is true discretion vested in supervisors to review requests and act on a case-by-case basis to approve field visits. That discretion has been exercised on numerous occasions to authorize a field contact. There was no evidence of any probation officer having submitted a request to make a field visit to investigate a possible violation of a probation condition or where there was a public safety issue that was not approved by his or her supervisor. To the contrary, the evidence established that requests are being made and leeway is being provided to probation officers to travel, if they can articulate a reason for doing so. However, for one or two probation officers who do not accept that they must request approval and justify their travel expense on a case-by-case basis and who simply ask for block reinstatement of the minimum contact standards, without articulating any reason why field visits are needed for particular offenders, those requests have been denied. As the Reduced Travel Memo and Tucker Letter suggest, there are other tools available to probation officers besides incurring the expense of field visits, which are often equally effective to accomplish the goal. For example, a field visit to an offender's employer is certainly one way to verify employment and to verify the offender's attendance, but telephone calls may well suffice to obtain the same information at much lower costs. There are also other ways to attempt to verify residence besides a personal home visit. An offender can be required to present documentation, such as a utility bill, rental agreement, or pay stub showing the offender's address. An offender can be made to come in for office visits more frequently than once a month. A probation officer can telephone the offender frequently, and the voice mail message or background noise may give some reason to believe there is a need for a field visit. A probation officer can call family members and neighbors to check on an offender and to verify information. A probation officer can enlist the help of a local law enforcement officer to check on an offender. In short, for the period of Respondent's urgent need to reduce costs, probation officers have been asked to work a little harder and more creatively from their desks, while reserving travel expenses for field visits to the cases where they have some reason to think a field visit is needed. Petitioner presented the testimony of one probation officer specialist, Kimberly Schultz. As a specialist, this officer handles a case load disproportionately made up of sex offender probationers (for whom the temporary directives did not suspend minimum contact standards) and the next category down on the risk scale--maximum offenders. Officer Schultz testified that she believes that public safety is best served by the old minimum contact standards in (unpromulgated) Policy 302.303. Officer Schultz suggested, but failed to prove, that public safety is compromised by the temporary directive. Under the temporary directive, Officer Schultz has only requested approval once from her supervisor to make a field contact based on a suspicion she developed that the offender may be in violation of his probation requirements. That single request was approved. Officer Schultz did not identify any instance in which public safety was jeopardized because a field contact was not allowed. Instead, Officer Schultz spoke to the increased possibility that allowing more travel to make surprise visits to offenders' homes or places of employment would reveal suspicious behavior or incorrect information. Certainly, Officer Schultz has the experience to draw on to offer the view that, in a general sense, increased field visits would serve to increase the possibility of discovering probation violations or other issues with offenders. In an ideal situation with unlimited resources, a probation officer following every move an offender makes could well come to find that the offender is not "liv[ing} without violating the law," as required in a standard probation condition. However, such an ideal situation obviously does not exist. Instead, Respondent has taken action to manage its limited resources. The evidence did not show that Respondent's temporary directive has threatened public safety. Officer Schultz attempted to suggest that, in the single instance when she requested a field contact, she would have discovered sooner that the offender was not living where he said he was, if she had made the minimum field contacts under Procedure 302.303. Her testimony did not bear that out. Officer Schultz testified that an offender assigned to her in March 2012, came in for the required office visits in March and in April, and he filled out the required monthly reports giving his address, telephone number, and other contact information. When the offender came in for his May office visit, the offender was supposed to stay for a drug test, but he left. Officer Schultz tried to call the offender at the number he had provided to check to see if he had misunderstood. That is when she learned that the phone number the offender had given her "wasn't a good number." Officer Schultz requested and was given approval to incur travel to investigate and learned, then, that the offender was not living where he said he was. While Officer Schultz contends that, in the above example, a field visit to verify the offender's address would have identified the problem sooner, Officer Schultz admitted that she had not previously tried to call the offender. Indeed, she said that she never calls her offenders on their cell phones. Thus, instead of incurring travel expense for a field visit, Officer Schultz could have attempted to verify the offender's office report immediately in March through other ways, such as calling the phone number provided and learning much sooner that the offender had provided a phone number that was not good. Officer Schultz might have checked for a home phone number associated with the address the offender gave; she learned when she went there that the offender's cousin lived there, and the cousin volunteered that the offender did not live there. Officer Schultz could have required this offender, and could require all of her offenders, to come into the office multiple times per month. She could have required this offender to bring in a utility bill for his residence, whether in his name or someone else's name. Had Officer Schultz tried alternative verification means, she may have been able to contact the cousin sooner. It was evident from Officer Schultz' testimony that she has become accustomed to operating under the guidance provided in unpromulgated Procedure 302.303 and does not like being asked temporarily to work harder and more creatively from her office to find other ways to conduct surveillance and monitor offenders that do not cost Respondent as much in travel expenses as her travel in the field used to. It seemed that rather than trying to replace the field visit time with alternative investigation techniques, Officer Schultz has done little to fill the gap with constructive methods to monitor her offenders using alternative means. Indeed, when Officer Schultz was asked how she was making use of her new-found office time since she is spending less time in the field, her first response was, "I'm organizing my closed files." Officer Schultz expressed concern that a probation officer could be subject to discipline if he or she were to not follow the temporary directive. However, there was no evidence that any probation officer had refused to request supervisor review and approval for a field visit, much less that discipline resulted. Officer Shultz did not represent that she had refused to follow the temporary directive or that she intended to in the few weeks remaining in the fiscal year. Petitioner's representative testified that the temporary directive harms its 2,100 certified probation officer members, although the directive does not apply to the other approximately 17,000 certified members who serve on the correctional institution side of Respondent. Thus, the temporary directive applies to only about 12 percent of Petitioner's members. Nonetheless, Petitioner's representative asserted that its members are affected by the temporary directive because they are all members of communities with a concern for public safety.
Findings Of Fact The Petitioner, James Lee Church, is a white male who has been an employee of the Respondent, Department of Corrections since May of 1990. The Petitioner was originally employed as a Correctional Probation Officer, but in June of 1991 accepted a voluntary demotion to Human Services Counselor and relocation to Lake Correctional Institution, LCI, in order to attend graduate school in Orlando, Florida. In early 1993, the Petitioner applied for promotion to a position of Correctional Probation Officer I, also referred to as a classification officer, at LCI. Although this would have been a promotion from the position which he held, this is the same entry level position from which he had earlier taken a voluntary demotion in order to relocate. It can be inferred that the Petitioner was familiar with the job duties of the position which he had earlier held at another institution which included counseling inmates, computing gain time, setting up inmate work assignments, educational goals and social/religious programs. In March, 1993, Paula Hoisington, a black female, was Classification Supervisor at LCI, and reviewed all thirty applications for the Classification Probation Officer I position for which the Petitioner had applied. The Petitioner's qualifications exceeded the required educational and practical experience, and he had been previously employed by the Respondent in a similar position prior to relocating to LCI. Ms. Hoisington and the Petitioner discussed his application before the selection was made, and Ms. Hoisington advised the Petitioner that she was not putting his name forward for the promotional opportunity because she was aware he had applied for another position. The Petitioner queried Ms. Hoisington regarding whether that meant he would get the other position, and she advised him that it did not. The Petitioner advised her that he really was serious about putting his name forward for the instant promotion and desired to be interviewed. Ms. Hoisington excluded the Petitioner for the interview process which is required for recommendation for the promotion, and selected eight applicants (four white males, two black males, one white female, and black female) to be interviewed by the panel making promotional recommendations to the Superintendent of LCI. The panel recommended three candidates, two black males and one white male, and the Superintendent selected Willie McKinnon, a black male to fill the position. Mr. McKinnon had been employed as a correctional officer for eight years and a classroom teacher for three years prior to that, and possessed a degree in sociology and had worked as a social worker. In March 1993, the Petitioner applied for the promotional position of Human Services Supervisor at LCI, the position which had been discussed with Ms. Hoisington. This position required oversight of Tier II substance abuse program at LCI and supervising LCI personnel and staff provided by an outside vendor. Ms. Hoisington again selected the applicants to the interviewed, and this time included the Petitioner in the list. She also prepared the synopsis of each applicant's background and experience which was provided to each member of the panel. The panel consisted of a white female, two white males, and Ms. Hoisington. It recommended three applicants, two black females and one white male to the Superintendent, who selected the black female. The person selected had worked as a Human Services Counselor for three and one half years, and been employed previously by the Department of Health and Rehabilitative Services and had a degree in criminology. Ms. Hoisington and another member of the panel gave the Petitioner a bad score on the interview because he was perceived as arrogant and pompous because he acted as though he was the best candidate for the position. In October 1993, the Petitioner received a promotion to Correctional Probation Officer I. In March 1994, the Petitioner applied for promotion to Correctional Probation Officer II. The Petitioner was interviewed for this promotional opportunity, but was not selected by the panel who recommended a white female, a black female, and a white male to the Regional Administrator, who was the appointing authority. A white female was selected from the individuals recommended. In December 1993, the Petitioner applied for the promotional position of Correctional Probation Specialist, a new position overseeing various substance abuse programs throughout Region III (Central Florida) of Respondent. The application was made before the Petitioner's charge of discrimination by Ms. Hoisington was made to the Commission in January 1994. In the interim, Ms. Hoisington had been promoted to the Regional staff, and in her new position selected the persons to be interviewed for the position of Correction Probation Specialist for which the Petitioner had applied. Again, Ms. Hoisington put together the resumes for the panels consideration and served on the panel. The Petitioner protested Ms. Hoisington's participation in this process to the Respondent through its counsel, and suggested to Respondent's counsel that it was a conflict of interest for Ms. Hoisington to serve on the panel, which included of two white females and Ms. Hoisington. The Respondent refused to take Ms. Hoisington off the panel which recommended one black male and one white female for the position. The hiring authority, a white male, selected a white female who had worked for the Department nine years to fill the position. The Petitioner had a degree in biology, had teaching experience, was a certified correction probation officer, had work experience in West Virginia as a classification supervisor, and had work experience in North Carolina administering and monitoring grants and grant moneys to daycare providers. He had worked in the Tier II drug program during his employment by the Department, and would have been qualified by education and experience for a supervisor's position in this area. The Petitioner was promoted to Correctional Probation Officer II in September 1994. Classification of jobs and validation of requirements for positions in career service was performed by the Department of Administration during the initial period of Petitioner's employment by Respondent, and by the Department of Management Services later in his employment pursuant to statute. The questions used by interview panels for positions within the Department are part of a qualification examination. These examination questions have not been validated relative to the various jobs within the Department of Corrections, and validated to determine their ability to accurately predict job performance by applicants. They are used by panels to assess the applicants and are scored; however, there is a subjective component to the assessment of applicants as revealed by the low grades received by the Petitioner for "arrogance" by panel members in his interview for the Human Services Counselor Supervisor position. Attitude was not a "scorable" component of the test, yet it was determinative in the minds of two of the evaluators. There is no evidence that the questions were racially biased, or that they were the basis of racial discrimination against the Petitioner. The Petitioner's supervisor, Ms. Ramirez, did make statements to Ms. Hoisington which indicated that he was not a team player; however, she also advised Ms. Hoisington that Petitioner did his job as she instructed him to do it. Ms. Hoisington testified regarding this, and Ms. Ramirez' affidavit is not inconsistent with Ms. Hoisington's testimony. The Department is an employer. The Department has been determined to have discriminated against Hispanic and black females in hiring for certain positions which are not at issue in this case. There is no evidence that the Department has discriminated generally in the past against white males in its hiring practices. The only evidence presented on racial discrimination is that outlined above.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's complaint be dismissed. DONE and ENTERED this 15th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1995. APPENDIX CASE NO. 94-4480 The parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Proposed Order Paragraph 1-3 Subsumed in specific findings. Paragraph 4 No evidence was received that Ms. Hoisington's refusal to place Petitioner's name on the interview list was a violation of Departmental rules. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6-8 Subsumed in Paragraph 19. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 18. Paragraph 11 Cannot be determined from the information provided and is irrelevant. Paragraph 12-20 All of these findings relate to the fourth promotional opportunity, in which a white female was recommended by the panel and hired. The Petitioner failed to make a showing of racial prejudice in this instances, about which evidence was received because it supported the previous allegations; however, the Petitioner did not plead retaliation in his complaint and no findings will be made on allegations about retaliation. Paragraph 21,26-28,30 Subsumed in Paragraph 18. Paragraph 22 Subsumed in Paragraph 17. Paragraph 23-25,29 Legal arguments. Respondent's Findings Proposed Order Paragraph 1-4 Paragraph 1-4. Paragraph 5 Rejected as contrary to more credible evidence. Paragraph 6,7 Paragraph 5. Paragraph 8a,8b,9 Paragraph 6,7,8,9. Paragraph 10,11,12 Paragraph 10,11. Paragraph 13 Paragraph 12,13. Paragraph 14 Subsumed in Paragraph 18. Paragraph 15 Subsumed in Paragraph 15. COPIES FURNISHED: James Lee Church 907 Foresthill Drive Clermont, FL 34711 Susan Schwartz, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue Whether Respondent was overpaid for 27.5 hours in the amount of $271.70, originally credited as administrative leave?
Findings Of Fact The DJJ is an agency with a centralized personnel office in Tallahassee, Florida. All the records of its personnel are kept and maintained in Tallahassee, Florida. Petitioner, Jennifer Carter Nicholson, was employed in the category of an Other Personnel Services (OPS) employee by DJJ from May 8, 2002 until September 12, 2002, at the Marion Juvenile Detention Center as a Juvenile Detention Officer. As an OPS employee, Petitioner did not earn sick or annual leave credit. Petitioner was employed by DJJ as a Career Service employee from September 13, 2002 until October 6, 2002, at the Alachua Juvenile Detention Center. As a Career Service employee, Petitioner earned three hours' credit of annual leave and three hours' credit of sick leave during her employment from September 13, 2002 until October 6, 2002. Petitioner did not work from September 23, 2002 until the effective date of her resignation on October 6, 2002, because of complications from asthma, which was why she tendered her resignation. During the last week of her last pay period, Petitioner worked 12.5 hours. A time sheet appears to have been submitted in her behalf by a person or persons unknown claiming 27.5 hours of sick leave. The payroll clerk apparently determined that Petitioner was not entitled to 27.5 hours of sick leave, and erroneously credited Petitioner with 27.5 hours of administrative leave. Upon that basis, Petitioner was paid for a full week's work. This amounted to $855.87, or 80 hours at a rate of $10.70 per hour. However, the records indicate, and Petitioner does not deny, that she did not work 27.5 hours during the second week of the period. Thereafter, an audit of her account revealed that Petitioner was not entitled to administrative leave, and this action was initiated within the statute of limitations to seek re-payment of $271.70. During the period in question, Petitioner's attendance and leave record reflects that Petitioner earned three hours of annual leave and three hours of sick leave. See Respondent's Exhibit 6.1/ This leave was not credited against the 27.5 hours. Therefore, crediting Petitioner with the six hours of leave she had earned, the time actually taken in the status of leave without pay should have been 21.5 hours. At Petitioner's rate of pay, this would have been an over-payment of $230.05, minus the $22.51 originally deducted for miscellaneous deductions, or $217.44.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Juvenile Justice enter a final order directing the repayment of $217.44 from Petitioner. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2003.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
