Findings Of Fact Petitioners Gary M. Piccirillo ("Piccirillo"), Douglas L. Adams ("Adams"), and George Crain ("Crain") each are inmates who are presently incarcerated and within the custody of Respondent, Department of Corrections. At the time of final hearing in this cause, each of the Petitioners was incarcerated in Union Correctional Institution, Raiford, Florida. At the time of final hearing in this cause, both Petitioner Adams and Petitioner Crain had been classified as "close custody" in accordance with the provisions of Rule 33-6.09(4), Florida Administrative Code. Petitioner Piccirillo had been classified as "medium custody" in accordance with that same rule. The custody status of each of these inmates had been reviewed and established within the last six months prior to final hearing. In addition to challenging the validity of Rule 33-9.07(4), Florida Administrative Code, Petitioners also challenge the validity of Department of Corrections' Policy and Procedure Directive No. 4.07.40 issued April 27, 1977, and revised March 10, 1982, as an unpromulgated rule. Specifically, Petitioners contend that Section IXB conflicts with certain provisions of Section 945.091, Florida Statutes, and is, therefore, invalid. Specifically the Policy and Procedure Directive in the above referenced section provides that: The department will permit considera- tion 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]. . . .
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioner and the Intervenor are subject to the rules of the Respondent. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-3.0081, Florida Administrative Code. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption." Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code: (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows: What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows: Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.? Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing. . . . . In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made: The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved". The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved". The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter: The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution". The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . . The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee. The Notice of Proposed Rulemaking included the following "purpose and effect" clause: The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
The Issue This is a rule challenge proceeding in which the Petitioner originally sought a determination pursuant to Section 120.56, Florida Statutes, that Rule 33-6.006, Florida Administrative Code, was an invalid exercise of delegated legislative authority. This case began with the filing of a Petition For Administrative Determination on December 23, 1986. On March 26, 1987, this Hearing Officer issued a Final Order of Dismissal which granted the Department's motion to dismiss. The Final Order Of Dismissal concluded that the Petitioner had failed to allege standing to challenge Subsections (2) through (9) of Rule 33-6.006, because his allegations were insufficient to show that his substantial interests were affected by those subsections of the rule. The Final Order Of Dismissal went on to conclude that the Petitioner had sufficiently alleged standing to challenge Subsection (1) of the challenged rule, but also concluded that the Petitioner had failed to sufficiently allege facts sufficient to show the invalidity of the rule. In this regard the Final Order Of Dismissal specifically stated at paragraph 12: In order to sufficiently allege the invalidity of an existing rule, a rule challenge petition must assert, at a minimum, that the challenged rule is in some specified way a departure from statutory authority granted to the rule enacting agency by the Legislature. Where, as here, the rule is nothing more than a repetition of the statutory provision, the rule may be unnecessary, but it is not an invalid exercise of delegated legislative authority because it does not in any way depart from the statutory mandate. Because of the identical provisions of the subject rule language and the applicable statute, the Petitioner has not, and cannot, allege any facts sufficient to show that the rule is an invalid exercise of delegated legislative authority because he has not, and cannot, allege any differences between the statutory mandate and the rule mandate. The Petitioner sought appellate review of the Final Order Of Dismissal. In Diaz v. Florida Department of Corrections, 519 So.2d 41 (Fla. 1st DCA 1988), appeal dismissed, 525 So.2d 877 (Fla. 1988), the First District Court of Appeal issued an opinion which primarily addressed the constitutionality of the statutory authority for the challenged rule. In that opinion the court concluded as follows: Accordingly, we declare section 945.10(2) Florida Statutes (1985), to be unconstitutional. The case is remanded to the DOAH hearing officer for further proceedings to determine the validity of Rule 33-6.006(1) in light of this opinion. On March 21, 1988, the appellate court issued its mandate and the case was once again before the Hearing Officer for further proceedings consistent with the court's opinion. The appellate court decision left undisturbed the conclusion that the Petitioner lacks standing to challenge Subsections (2) through (9) of Rule 33-6.006. Accordingly, the issue on remand is limited to a determination of the validity of Subsection (1) of Rule 33-6.006, Florida Administrative Code. As discussed in the conclusions of law, that determination involves a consideration of statutory amendments which took effect after the appellate court decision and were, therefore, not considered by the appellate court. At the final hearing, both parties presented the testimony of witnesses and the Petitioner also offered several exhibits. During the course of the hearing the Petitioner was granted leave to file two late exhibits consisting of selected portions of the Department's Policy and Procedure Directives and selected portions of the Florida State Prison Institutional Operating Procedures. The Respondent was granted leave to file post-hearing objections to any late-filed exhibits. The late-filed exhibits were submitted by the Petitioner and the Respondent promptly filed objections to same. Upon consideration, the objections to the exhibits are overruled and the late-filed exhibits are received as part of the record in this case. Following the hearing, a transcript of tide proceedings at hearing was also filed. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. The parties' proposed final orders have been carefully considered during the preparation of this final order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated herein.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings stipulated by the parties Florida Administrative Code Chapters 1S, 22I, 28, and 33, as found in the Florida Administrative Code Annotated, through the April 1988 supplement, are true and correct copies of those rule chapters. The Petitioner's current address is: Enrique J. Diaz Inmate Number 065599 Florida State Prison Post Office Box 747 Starke, Florida 32091 The Respondent's name and address is: Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 The Department rule on which an administrative determination is sought is Rule 33-6.006(1), Florida Administrative Code, which states: No inmate of any institution, facility, or program shall have access to any information contained in the files of the Department. The statutory provisions on which the subject Department rule is based are Sections 944.09 and 945.10, Florida Statutes. The Petitioner's interests are substantially affected by Rule 33- 6.006(1), Florida Administrative Code, in that: He is a convicted felon, lawfully confined in the custody of the Department. He wishes to obtain from the Department, for the lawful cost of copying, documents he was once given by the Department, but which he no longer has in his possession, including, but not limited to: Institutional grievances filed by him. Grievance appeals filed by him. Disciplinary Reports issued against him. Disciplinary Report Worksheets issued against him. He wishes to obtain from the Department, for the lawful cost of copying, documents which are public records and which can be obtained by anyone from sources outside the Department, including, but not limited to: His Judgment and Sentence forms. His Uniform Commitment to Custody form. He wishes to obtain from the Department documents which are public records and which are normally provided to any member of the public requesting same, including, but not limited to: The Department's annual report. Ordinary records kept in the normal course of business, such as might be kept by any state agency. He had been refused any and all documents from the Department because of Rule 33-6.006(1), Florida Administrative Code. FINDINGS BASED ON EVIDENCE AT HEARING Inmates are given copies of any disciplinary reports they receive at the time they receive the disciplinary report, plus the results of any subsequent disciplinary hearing. These copies are carbon copies rather than photocopies. Inmates are given answers to inmate requests, institutional grievances, and grievance appeals they file. These answers are given to the inmate with a copy of his original filing. The act of giving an inmate another, identical, copy of any disciplinary report, disciplinary worksheet, inmate request, institutional grievance, or grievance appeal he had previously been given does not create a security problem. The act of giving an inmate another, identical, copy of his Judgment and Sentence forms, which are public documents contained in the files and records of the appropriate Clerks of Court, does not create a security problcm. Copies of the above documents are routinely made for attorneys and the news media. The actual cost of providing these copies is charged. The Department would not provide copies of the above documents if it were known the copies would be given to an inmate. The Department's Administrative Gain Time Manual is made available to the news media, the public, and attorneys. The Department refuses to make this manual available to inmates. The Florida State Prison Institutional Operating Procedures (IOPs) are public records, but the Department refuses to make copies of them for individual inmates because of Rule 33- 6.006(1), even though some of the IOPs are in the prison law library. The Department's Policy and Procedure Directives are freely available to the public, but the Department refuse to make them available to inmates. Florida State Prison, where the Petitioner is incarcerated, has approximately 1164 inmates. In accordance with state statute, the institution keeps a file on each inmate. Each file consists of from two to eighteen legal size folders of documents. The files include such material as investigation reports, disciplinary reports, special review information, presentence reports, psychological and medical reports, detainers, gain time, and other information. There are three people in the Florida State Prison records department responsible for inmate files. It takes the FSP record department three or four hours daily to file newly received documents. The FSP records department also has other duties, such as posting gain time, cell changes, and disciplinary reports. The FSP records department has received few, if any, requests for information from the public or the news media. Most of their requests come from attorneys. The attorneys' requests for information place additional burdens on the small FSP records department staff. By way of example, it took approximately two hours to "screen" the Petitioner's file at FSP and his file is smaller than that of 75 or 80 per cent of the inmates. Florida State Prison has only three photocopy machines for the entire institution. The machines are used extensively and are subject to frequent malfunctions. The Admissions and Release office maintains the official file on each inmate at the central office. Currently, there are 33,000 inmates in custody. The primary reason that the Admissions and Release office does not want inmates to have hands-on access to their central office files is to maintain the integrity of the record. The Department has had to use the files in court to defend and substantiate the calculations for release dates. The Admissions and Release office has denied all inmate requests for copies of information from its files. The Admissions and Release office is currently shorthanded. Whenever there is a new court decision affecting inmate rights or sentences, the office is flooded with correspondence and requests from inmates. The office has already received some grievances and requests from inmates concerning the appellate court decision in this case. The office expects a flood of requests if inmates are given access to Department records. During the past four years the Admissions and Release office has had very few requests for access to its files from the news media or the general public. The Department's central files contain access codes for the Department's computers. If inmates could obtain the access codes, it would compromise the integrity of the Department's computer records. Before release of any information from the Department's central office files, the information is screened for confidential information. Even documents which appear to be facially innocent have to be read to determine whether they contain information about informants or victims. The Department is concerned that if inmates are allowed broad access to Department files, such access will create security problems. But the Department is even more concerned about the sheer volume of requests that would result from allowing broad access and the impact the expected volume of requests would have on Department staff and copying equipment. The Department is also generally of the view that it is virtually impossible to write a rule which would describe which documents should be available for inmate access and which should not. Rather, the Department is of the view that decisions regarding release of documents to inmates must be made on a case by case basis after review of each document in each file.
Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
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.
Findings Of Fact The Respondent, Christopher Knowles, was employed at the Broward Regional Juvenile Detention Center in Fort Lauderdale, Florida, during the period of time prior to July 19, 1981, up until February 4, 1983. On July 19, 1981, the Respondent was injured during the course of his employment when he tripped over one of the center's detainees while on the athletic field attempting to break up a fight between detainees. The Respondent received medical treatment and was placed on disability leave until August 10, 1981, when he returned to work and was given a light-duty assignment. On August 17, 1981, the Respondent was returned to a full-duty status, but he was still being treated by a physician, and until November 22, 1982, he worked irregularly and took sick leave when not working. On November 22, 1982, the Respondent told his supervisor that he had been released by his doctor to return to work, but that he did not feel that he was yet able to return to work. The Respondent at this time was required to obtain a physician's authorization for continued sick leave, or else return to work. When the Respondent did not return to work, he was advised on December 3, 1982, that he must contact his supervisor by December 10 or report to work by this date, or a recommendation would be made for termination of his employment. When the Respondent did not respond, he was sent a letter on December 21, 1982, directed to the address which had been furnished by the Respondent to the personnel office, repeating the requirement that he contact his supervisor or report to work. As a result of this letter, the Respondent went to the detention center on December 30, 1982, and repeated his contention that he was not yet able to return to work. In January of 1983 the personnel office of the detention center secured a statement dated January 17, 1983, from the Respondent's physician advising that the Respondent was able to return to work on November 22, 1982. On January 18, 1983, the Respondent was again told by letter sent certified mail, return receipt requested, that he must return to work, and he was given until January 24, 1983, to do so or, he was informed, that he would be terminated. This letter also advised the Respondent that his physician's statement had been secured stating that he had been fit for duty since November 22, 1982. The Respondent did not respond to this letter. On February 2, 1983, the Respondent was advised by letter that his employment was terminated as of February 4, 1983, due to abandonment by the Respondent. On February 4, 1983, the Respondent went to the office of his supervisor at the detention center, complaining that he did not abandon his job, and asking that his termination be reversed. This request was declined. The detention center needed an employee in the Respondent's position and could not hire someone as long as the Respondent was employed in this position. The Respondent contends that he fears that he might become reinjured if he should return to work, although he admits that his physician released him from further treatment and advised him to return to work on November 22, 1982. The Respondent also admits that he is not now under the care of a physician, and has not been examined by a doctor since November of 1982.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter an Order finding that the Respondent, Christopher Knowles abandoned his position of employment at the Broward Regional Juvenile Detention Center, and that he be discharged effective February 4, 1983. DONE and RECOMMENDED this 14 day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS, 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 14 day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher Knowles 3530 North West 18th Place Fort Lauderdale, Florida 33311 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Nevin Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice in the case of Petitioner.
Findings Of Fact Ms. Rippy commenced her employment with the Department on June 30, 2000, as a correctional officer, at the Florida State Prison Work Camp at Starke, Florida. She was terminated on June 19, 2001. The Department of Corrections is a state agency that is charged with providing incarceration that supports the intentions of criminal law, among other things. The Florida Commission on Human Relations administers the Florida Civil Rights Act of 1992. When Ms. Rippy was hired as a correctional officer on June 30, 2000, she, and the Department, believed she was subject to a one-year probationary period. During that time, the parties believed she could be terminated without cause. Subsequent to her employment she had unscheduled but excused absences on as many as 15 occasions. On June 12, 2001, Ms. Rippy requested that her supervisor, Lt. J. L. Oliver, approve leave for her to commence Sunday, June 17, 2001. Lt. Oliver did not approve this request because to approve the request would cause the staffing level at the facility to recede below permitted limits. On Saturday June 16, 2001, at 6:00 p.m., Ms. Rippy called Sergeant K. Gilbert, Third Shift Control Room Sergeant, and told him that she was taking medication prescribed by a doctor that she had seen that day and that she would be sleeping and that as a result, she would be unable to report to work on her shift which began at midnight, June 17, 2001. She also volunteered that she would bring in a doctor's note excusing her absence. On Monday, June 18, 2001, Lt. Oliver asked her if she had a doctor's note explaining her absence on June 17, 2001. She replied that she had not been ill as reported to Sergeant Gilbert, but had in fact attended a party. She told him that she had not seen a doctor, was not on medication, and had attended a "bachelorette party" on June 17, 2001. In other words, she admitted that she had lied about the reason for her absence. She admitted this, under oath, at the hearing. Lt. Oliver informed her that it was his intention to charge her with unauthorized absence without pay, and possibly to take other disciplinary measures. Subsequently, persons higher in the chain-of-command decided to terminate Ms. Rippy. This decision was made because she had excess absences and because she had lied to persons in authority. This occurred 11 days before everyone believed she would have attained the status of permanent career service. On June 21, 2001, Correctional Officer Corey M. McMurry (Officer McMurry), a white male, was arrested in Starke, Florida, for driving under the influence of alcohol. As a result, on July 11, 2001, he was adjudicated guilty and sentenced to twelve months supervised probation, and suffered other court-ordered sanctions. Officer McMurry, at the time of his arrest, was a probationary employee. He was served a written reprimand because of his conviction of driving under the influence on December 19, 2001. Ms. Rippy testified, without foundation, that Officer McMurry's probation terminated on November 15, 2001, and that the Department did not learn of his arrest until December 2001. Ms. Rippy's testimony provides a plausible explanation for why more than five months expired from the time of his conviction until the issuance of the written reprimand. Ms. Rippy believes that the circumstances surrounding her offense were substantially similar to those of Officer McMurry. However, the chronic absenteeism of an employee, including unexcused absences, is more likely to disturb the good management of a correctional facility than an employee being convicted of driving under the influence on one occasion. Assistant Warden Doug Watson believes that correctional officers should be trustworthy. He believes that the credibility is critical and that lying is an extremely serious offense, when committed by a correctional officer. Ms. Rippy was paid $13.30 per hour and received substantial fringe benefits when she worked for the Department. Following her termination she was unemployed until January 2002, when she began working for a Wendy's restaurant for $5.75 per hour. In April 2002, she obtained employment with a private security company named Securitas. She started at $6.40 and received an increase to $7.00 per hour at a subsequent unknown date, and she continues to be employed with the company.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which dismisses Ms. Rippy's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 25th day of August, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of August, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Henderson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Juliette C. Rippy 1622 Northeast 19th Place Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
