The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL 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 17th day of June 1994.
Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to the Proposed Rules of the Department of Juvenile Justice (“Department” or “DJJ”) 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017 (the “Proposed Rules”). The main issue in this case is whether the Proposed Rules are an invalid exercise of delegated legislative authority in that the Proposed Rules enlarge, modify, or contravene the specific provisions of law implemented, section 985.686, Florida Statutes; are vague; and/or are arbitrary and capricious. Petitioners also argue that the Proposed Rules impose regulatory costs that could be addressed by the adoption of a less costly alternative. Finally, Petitioners assert that the Proposed Rules apply an invalid interpretation of the General Appropriations Act (“GAA”) for Fiscal Year (“FY”) 2014-15 by interpreting the GAA as a modification to substantive law, contrary to the Constitution of the State of Florida.
Findings Of Fact The Parties The Department is the state agency responsible for administering the cost-sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. The challenging counties are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost-sharing requirements of section 985.686. The challenging counties are substantially affected by the application of Florida Administrative Code Rules 63G-1.010 through 63G-1.018, including the Proposed Rules. It was stipulated that the challenging counties’ alleged substantial interests are of the type these proceedings are designed to protect. Petitioner, Florida Association of Counties (“FAC”), is a statewide association and not-for-profit corporation organized and existing under chapter 617, Florida Statutes, for the purpose of representing county government in Florida and protecting, promoting, and improving the mutual interests of all counties in Florida. All of the 67 counties in Florida are members of FAC, and the Proposed Rules regarding Detention Cost Share affect all counties. Of the 67 counties in Florida, 35 are considered non- fiscally constrained, and are billed by the Department for their respective costs of secure detention care, as determined by the Department; 27 of these counties are participating alongside FAC in these proceedings. The subject matter of these proceedings is clearly within FAC’s scope of interest and activity, and a substantial number of FAC’s members are adversely affected by the Proposed Rules. The challenging counties, and FAC, participated in the various rulemaking proceedings held by the Department related to the Proposed Rules, including rule hearings held on June 6, 2014, and August 5, 2014. Rule Making The initial version of the Proposed Rules was issued, and a Rule Development Workshop was held on March 28, 2014. Numerous challenging counties submitted comments on the Proposed Rules either prior to, or at the Rule Development Workshop. On May 15, 2014, the Department published Proposed Rules 63G-1.011, 1.013, 1.016, and 1.017 in the Florida Administrative Register. In that Notice, the Department scheduled a hearing on the Proposed Rules for June 6, 2014. On June 6, 2014, a rulemaking hearing was held on the Proposed Rules. Numerous challenging counties submitted comments to the Proposed Rules either prior to, or at the hearing. A supplemental rulemaking hearing was held on August 5, 2014. Again, numerous challenging counties submitted comments regarding the Proposed Rules either prior to, or at the supplemental rulemaking hearing. On September 5, 2014, the Department advertised its Notice of Change as to the Proposed Rules. Thereafter, all parties to this proceeding timely filed petitions challenging the Proposed Rules. A statement of estimated regulatory costs (“SERC”) was not originally prepared by the Department. In the rulemaking proceedings before the Department, Bay County submitted a good faith written proposal for a lower cost regulatory alternative. In its proposal, Bay County asserted that the Department’s own stipulations signed by the agency are competent substantial evidence that the agency has a “less costly alternative” to the approach taken in the Proposed Rules, by assessing the costs of all detention days for juveniles on probation status to the state, and not the counties.2/ As Bay County noted in the proposal, the Department previously had agreed to assume all of the cost of detention days occurring after a disposition of probation. Following the June 6, 2014, hearing, the Department issued a SERC for the Proposed Rules. Ultimately, the Department rejected the lower cost regulatory alternative proposed by the counties “because it is inconsistent with the relevant statute (section 985.686, F.S.), fails to substantially accomplish the statutory objective, and would render the Department unable to continue to operate secure detention.” The Implemented Statute The Proposed Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care “for juveniles for the period of time prior to final court disposition.” § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of “its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition,” based on “the prior use of secure detention for juveniles who are residents of that county, as calculated by the department.” § 985.686(5), Fla. Stat. (emphasis added). Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, “[a]ny difference between the estimated costs and actual costs shall be reconciled.” Id. The Department is responsible for administering the cost-sharing requirements and is authorized to adopt rules as set forth in section 985.686(11). In general, the Proposed Rules provide definitions including for pre and postdisposition, provide for calculating the estimated costs, for monthly reporting, and for annual reconciliation. Specific changes will be discussed in detail below. The complete text of the Challenged Rules, showing the proposed amendments (in strike-through and underlined format) is attached hereto as Appendix A. The Prior Rule Challenge On July 16, 2006, the Department promulgated Florida Administrative Code Rules 63G-1.002, 63G-1.004, 63G-1.007, and 63G-1.008, among others, setting forth the definitions and procedures for calculating the costs as between the state and the various counties. These rules were repealed as of July 6, 2010, and in their place, the Department adopted rules 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017. Although the previous rules defined “final court disposition,” for purposes of determining the counties’ responsibility for providing the costs of secure detention, the 2010 rules replaced this with a definition of “commitment,” so that the state was only responsible for days occurring after a disposition of commitment. This had the effect of transferring the responsibility for tens of thousands of days of detention from the state to the counties. In addition, the 2010 rules failed to provide a process by which the counties were only charged their respective actual costs of secure detention. In 2012, several counties challenged rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017 as an invalid exercise of delegated legislative authority because these rules replaced the statutory dividing line for the costs of secure detention with “commitment,” and because the rules resulted in the overcharging of counties for their respective actual costs of secure detention. On July 17, 2012, a Final Order was issued by the undersigned which agreed with the counties and found that the rules were an invalid exercise of delegated legislative authority. Okaloosa Cnty., et al. v. Dep’t of Juv. Just., DOAH Case No. 12-0891RX (Fla. DOAH July 17, 2012). On June 5, 2013, this ruling was affirmed on appeal. Dep’t of Juv. Just. v. Okaloosa Cnty., 113 So. 3d 1074 (Fla. 1st DCA 2013) (“2012 Rule Challenge”). The Department’s Response to the 2012 Rule Challenge No changes to the Department’s practices were made after the Rule Challenge Final Order was released in 2012. Rather, changes were not made until after the Rule Challenge decision was affirmed on appeal in June 2013. Shortly after the opinion was released by the First District Court of Appeal, the Department modified its policies and practices to conform with its interpretation of the requirements of that opinion, and informed the counties that “all days for youth in detention with a current placement of probation or commitment belong to the state.” At this time, the Department determined that “by their nature all VOPs [violations of probation] are attached to charges that have a qualified disposition and thus are a state pay.” In response to the appellate court decision, the Department implemented and published to the counties its interpretation that the counties were only responsible for detention days occurring prior to a final court disposition, and were not responsible for detention days occurring after a juvenile has been sentenced to commitment or probation, or is waiting for release after a dismissal of the charge. A statement to this effect was developed by the Department with input from multiple staff, and was to be a “clear bright line” setting “clear parameters” and a “final determination” that the Department could share with those outside the agency. However, no rules were developed by the Department at this time. In July 2013, the Department revised its estimate to the counties for Fiscal Year (“FY”) 2013-14 from what had been issued (previously). This revised estimate incorporated the Department’s analysis that included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed. The revised estimate also excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. At the time of the 2012 Rule Challenge, several counties had pending administrative challenges to the Department’s reconciliations for FYs 2009-10, 2010-11, and 2011-12. In September 2013, the Department issued recalculations of its final reconciliation statements to the counties for FYs 2009-10, 2010-11, and 2011-12. The recalculations were based upon the Department’s revised policies and practices and included in the state’s responsibility any detention days for youths in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and similarly excluded detention days resulting from a new law violation of probation. This resulted in large overpayments from the non-fiscally constrained counties to the state for these fiscal years. These recalculations were not merely an internal exercise, but rather were intended to notify the counties what they had overpaid for the fiscal years at issue, and were published and made available to the counties and public at large on the Department’s website. In December 2013, the Department entered into stipulations of facts and procedure to resolve three separate administrative proceedings related to final reconciliation amounts for FYs 2009-10, 2010-11, and 2011-12. Those stipulations of facts and procedure included the following definitions: The parties agree that “Final Court Disposition” as contained in section 985.686, Florida Statutes, and based on the decision of the First District Court of Appeal, means a disposition order entered by a court of competent jurisdiction, including an order sentencing a juvenile to commitment to the Department, or other private or public institution as allowed by law, placing the juvenile on probation, or dismissing the charge. The parties further agree that a “Pre- dispositional Day” means any secure detention day occurring prior to the day on which a Final Court Disposition is entered. A pre- dispositional day does not include any secure detention day after a juvenile has been sentenced to commitment or placed on probation, or is waiting for release after dismissal of a charge. (Petitioner’s Ex. 26) In addition to the above stipulations, the Department also stipulated to its recalculated amounts for each of these years, resulting in large overpayments from the counties. However, the Department refused to provide credits for these overpayment amounts. In November and December 2013, the Department issued a final reconciliation statement and revised final reconciliation statement to the counties for FY 2012-13, which included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and likewise excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. Under the Department’s reconciliation statement for FY 2012-13, the counties were collectively funding approximately thirty-two percent (32%) of the costs of secure juvenile detention. The Department also submitted its legislative budget request for FY 2014-15 in October 2013. This legislative budget request was based on the Department’s independent judgment as required by sections 216.011 and 216.023, Florida Statutes,3/ and excluded from the counties’ collective responsibility all detention days relating to a violation of probation, including for a new substantive law violation. The request provided that “the department may only bill the counties for youth whose cases have not had a disposition either to commitment or probation.” The request also notes a shift in the counties’ collective obligations from 73 percent of the total costs to 32 percent of these costs “in order to bring the budget split in line with the June 2013 ruling by the First District Court of Appeal.” Under this interpretation, the Department projected a $35.5 million deficiency in its budget for FY 13-14 and requested an $18.4 million appropriation for detention costs from the Legislature. This request was funded in the General Appropriations Act for 2014-15. The Department did not ask for additional funding for past years that had been challenged by the counties. At this same time, a projection for the deficit for FY 2014-15 was developed by the Department staff based on the same interpretation of the state’s responsibility for detention days. There was no objection from the Department’s Secretary or the Governor’s Office to this interpretation of the state’s responsibility. Change in Interpretation Re New Law Violation Fred Schuknecht, then - Chief of Staff of the Department, testified that in response to the opinion of the First District Court of Appeal in June 2013, the Department adopted a broad interpretation of the ruling that final court disposition meant commitment, and also included all secure detention days incurred by probationers as postdisposition days. This included detention days for youths already on probation who committed new offenses and were then detained as a result of the new offense or because of the violation of probation resulting from the commission of the new offense. During the budgeting process for the 2014-15 Fiscal Year, the Department altered its interpretation of the 2012 Rule Challenge decision, and its newly-established practice relating to payment for all detention days involving probationers. The Department now proposes, through the challenged rules, to shift to the counties the responsibility for detention days occurring after a final court disposition of probation where there is a new law violation. Although the challengers assert that the changed interpretation was driven by the budget proposal submitted by the Governor’s Office in January 2014 (which did not utilize the Department’s prior interpretation) the Department specifically contends that it did not change its official position on this interpretation until the adoption of the state budget by the General Appropriations Act (GAA) in June 2014. While the Department stated it made its initial broad interpretation because it was “under the gun” to issue its cost sharing billing for FY 2013-2014 within two weeks of the appellate opinion, the Department continued to assert that interpretation in September 2013, when it published recalculations for FYs 2009-2010, 2010-2011, 2011-2012. Further, Mr. Schuknecht conceded that this interpretation had not changed at the time the Department’s legislative budget request was submitted in October 2013, or in November and December 2013, when the Department issued the reconciliation and revised reconciliation for FY 2012-2013. Likewise, this interpretation formed the basis for the stipulations signed by the counties and Department in December 2013. At hearing, testimony established that the Department’s interpretation that the state was responsible for all days of detention for probationers was formed after frequent discussions on this topic and with input from multiple staff involved in cost sharing, including Mr. Schuknecht (Director of Administration at that time), Vickie Harris (Budget Director), Mark Greenwald (Director of Research and Planning), the Chief of Staff, Deputy Secretary, the legal team, as well as the Department’s Secretary. For FY 2014-15, the Executive Office of the Governor proposed a recommended budget which was contrary to the Department’s initial interpretation, and included within the counties’ collective responsibility those detention days for a youth on probation charged with a new substantive law violation. This recommended budget proposed that the counties would be responsible for fifty-seven percent (57%) of the shared costs of secure detention, and that the state would be responsible for forty-three percent (43%). This is in contrast to the thirty- two percent (32%) the counties were paying under the Department’s initial interpretation of the Rule Challenge Decision. The Governor’s Office then asked the Department to amend its earlier submitted legislative budget request, to reflect the Governor’s budget because it wanted the Department’s request to match. Although the GAA for FY 2014-15 incorporated a cost- sharing split similar to that included in the Governor’s proposal, it differed from the governor’s budget recommendation. It was not until June 2014, when the GAA was adopted into law, that the Department asserts it officially changed positions. As stipulated by the parties, there is no language in the GAA for FY 2014-15 setting forth the policy behind the budget split for secure detention. The Proposed Rules differ from the Department’s initial interpretation of the requirements of the Rule Challenge decision and its earlier established policies and procedures regarding the same as implemented in June 2013, through at least early 2014. The interpretation set forth in the Proposed Rules results in a lessened budgetary impact on the state by shifting more detention days to the counties. At hearing, Mr. Schuknecht testified as to the rationale for the Department’s changed interpretation regarding the counties’ responsibility for detention days for a youth on probation charged with a new substantive law violation: Q. If you would, Mr. Schuknecht, please kind of talk about the highlights of that rule, and especially in relationship to the Court’s ruling in the previous rule challenge. A. Basically how we got here is, in June of 2013, the First DCA ruled basically supporting the – DOAH’s hearing, the final court disposition prior to that. Basically we determined the final court decision meant commitment. They said it can’t be just commitment. So at that time we took the broadest interpretation as well will actually include all probationers as part of the final court disposition and they would be post-disposition days. Subsequent to that, in effect, through the Governor’s Office as well as the Legislature, as well as ourselves, we realized basically by doing that we are including probationers with new offenses as post-disposition cases which, in effect, makes no sense. It’s logical that they be pre- disposition cases because there is no disposition on those cases with new offenses. Plus probationers would only be in detention because they have new cases. They wouldn’t be there otherwise. So, in fact, that’s how we – so that’s the main change in the rule, in effect, defining what pre-disposition means. Mr. Schuknecht’s explanation for the Department’s changed interpretation is consistent with the explanation given by Jason Welty, the Department’s previous Chief of Staff, during the June 6, 2014, Workshop, that “the Department’s original interpretation was, quite frankly, in error.” Cost of Detention Days for Juveniles on Probation The Challengers contend that all days in detention served by a juvenile on probation are the responsibility of the state, and not the counties. Accordingly, the Challengers contest the Department’s Proposed Rules which assign responsibility for detention days of juveniles with new law violations to the counties, and not the state. Much of the testimony and argument at the hearing focused on the Department’s definitions for predisposition and postdisposition, and how these definitions apply as to youth on probation status with the Department. These definitions are crucial, as they relate to how the costs are split amongst the state and the counties. Only the costs of predisposition detention days may be billed to the counties under section 985.686. Final court disposition is specifically defined by the Proposed Rules as the “decision announced by the court at the disposition hearing” including “commitment, probation, and dismissal of charges.” “Predisposition” is further defined as the “period of time a youth is in detention care prior to entry of a final court disposition.” Proposed Rule 63G-1.011(14). “Postdisposition” on the other hand, means “the period of time a youth is in detention care after entry of a final court disposition.” Proposed Rule 63G-1.011(15). However, the definitions do not stop with this general language. Proposed Rule sections 63G-1.011(14)(b) and (15)(b) provide that it is the counties’ responsibility to fund the costs for days when a youth is on probation and is charged with a new law violation. These definitions are implemented through the Proposed Rules relating to the estimate and reconciliation processes. The Department argues that youth who are on probation and commit new offenses may be held in secure detention for the new offense but cannot be legally held in secure detention on the underlying violation of probation. However, the Department’s position would appear to be counter to the express language of several statutory provisions. Section 985.439(4) provides in relevant part: Upon the child’s admission, or if the court finds after a hearing that the child has violated the conditions of probation or postcommitment probation, the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation. In each such case, the court shall enter a new disposition order and, in addition to the sanctions set forth in this section, may impose any sanction the court could have imposed at the original disposition hearing. If the child is found to have violated the conditions of probation or postcommitment probation, the court may: Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation and up to 15 days for a second or subsequent violation. Place the child in nonsecure detention with electronic monitoring. However, this sanction may be used only if a residential consequence unit is not available. If the violation of probation is technical in nature and not a new violation of law, place the child in an alternative consequence program designed to provide swift and appropriate consequences to any further violations of probation. Neither statute nor Department rules define what is meant by a “technical” violation of probation. However, retired juvenile court judge Frank A. Orlando, accepted as an expert in juvenile detention issues, explained at hearing that: A technical violation in my opinion is something that doesn’t involve a law violation. It is a condition of probation. It would be a curfew. It could be going to school. It could be staying away from a family, a victim, or staying away from a place. It could be not obeying the probation officer, him or herself. In that sense they are technical violations of probation, but they are both violation of probation. In addition, section 985.101(1) provides that a juvenile may be “taken into custody” under chapter 985 for, among others, “a delinquent act or violation of law, pursuant to Florida law pertaining to a lawful arrest,” and “[b]y a law enforcement officer who has probable cause to believe that the child is in violation of the conditions of the child’s probation, home detention, postcommitment probation, or conditional release supervision; has absconded from nonresidential commitment; or has escaped from residential commitment.” § 985.101(1)(b), (d), Fla. Stat. However, this provision also expressly provides that “[N]othing in this subsection shall be construed to allow the detention of a child who does not meet the detention criteria in part V.” Part V of the Act includes section 985.255, which sets forth the detention criteria, and provides in pertinent part: Subject to s. 985.25(1), a child taken into custody and placed into secure or nonsecure detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if: The child is alleged to be an escapee from a residential commitment program; or an absconder from a nonresidential commitment program, a probation program, or conditional release supervision; or is alleged to have escaped while being lawfully transported to or from a residential commitment program. Thus, the undersigned is persuaded that sections 985.439(4), 985.101(1), and 985.255 all support a finding that a violation of probation, not associated with a new violation of law, may under some circumstances result in a new disposition of secure detention. However, pursuant to the Proposed Rules, under these circumstances the state would continue to be responsible for the cost of the secure detention. As explained at hearing, there is an idiosyncrasy in chapter 985 regarding secure detention for juveniles who have been charged with a violation of probation or violating a term of their conditional release. Under chapter 985, a child taken into custody for violating the terms of probation or conditional release supervision shall be held in a consequence unit. If a consequence unit is not available, the child is to be placed on home detention with electronic monitoring. § 985.255(1)(h), Fla. Stat. These consequence units have not been funded by the Florida Legislature for a number of years. However, the juvenile justice system has found a practical method to accommodate the nonexistence of these “consequence units.” For technical violations of probation, the courts often convert the violations of probation to a contempt of court, and will hold the juvenile in detention on this basis. This contempt of court procedure may also be used by the courts to detain a juvenile in secure detention for a violation of probation based on a new law violation. Pursuant to section 985.037, a juvenile who has been held in direct or indirect contempt may be placed in secure detention not to exceed five days for the first offense, and not to exceed 15 days for a second or subsequent offense. As noted by Judge Orlando and Seventh Judicial Circuit Judge Terrill J. LaRue, an order to show cause for indirect criminal contempt is the mechanism used to place a juvenile in secure detention for a violation of probation or conditional release. In addition, the probation is a significant factor that weighs heavily into the Department’s decision to securely detain the juvenile, and in large part determines whether the juvenile will be detained. For a youth who is on probation and is charged with a new substantive law offense, the Department, pursuant to its rules and policies, determines whether the youth will be detained in secure detention based on the Department’s Detention Risk Assessment Instrument (“DRAI”). § 985.245, Fla. Stat.; rule 63D-9.002. Under the DRAI, if the child scores 0-7 points, the child is not detained; 7-11 points, the child is detained on home detention; for 12 points or more, the child is detained on secure detention. For a youth who is on probation, the underlying charge for which that youth was placed on probation and/or the “legal status” of the youth itself will always be taken into account under the DRAI and will make secure detention significantly more likely than had the youth not been on probation on a number of fronts. This is also true for a youth on commitment status, in the case of conditional release. The highest scoring underlying charge may be used to assess the juvenile for probation if the new law violation does not score enough points for the juvenile to be securely detained. Therefore, there are days served in secure detention based on the scoring of the underlying charge for which the juvenile is on probation, and not the new law violation. In addition, there are a number of points resulting from the underlying charge for which the juvenile is on probation, regardless of whether the DRAI is scored on the new law violation or the underlying charge. A juvenile on probation will always get points purely for his or her legal status of probation. The number of points depends on the amount of time since the last adjudication or adjudication withheld. Six points is assigned for active probation cases with the last adjudication or adjudication withheld within 90 days. Two points are assigned if the last adjudication or adjudication withheld was more than 90 days ago. Similarly, the legal status of commitment, in the case of conditional release, also results in points towards secure detention. The prior adjudication or adjudication withheld which resulted in the probation or commitment status would also score points under the prior history section of the DRAI. In many cases, the underlying charge for which the youth is on probation will be the deciding factor regarding whether the youth is held in secure detention. Thus, the DRAI is significantly affected by a probationary status which adds additional points, and can trigger secure detention, regardless of the nature of the new law violation. In addition, a trial judge has the discretion to place a youth in secure detention on a violation of probation for committing a new law offense even when the score on the DRAI does not mandate secure detention. The Juvenile Justice Information System (“JJIS”) is an extensive database maintained by the Department, and utilized during the process of billing the counties for secure juvenile detention. The reason for the detention stay can be readily ascertained based on information entered into JJIS at the time a juvenile is assessed and detained. For instance, in the case of a violation of probation, there is always a referral for a violation of probation entered by the probation officer. This is true whether the violation is a new law violation or a technical violation of the terms of the probation. In addition, the Department can also ascertain from JJIS whether the juvenile was scored on the new law violation or, alternatively, the underlying charge which resulted in probation. The Department concedes that it can determine, in any given instance, why a juvenile has been detained. As acknowledged by the Department, the responsibility for days, whether predisposition or postdisposition, should be based on the reason for the detention. Probation is considered a postdisposition status. Likewise, detention days of juveniles on probation are postdispositional, and the financial responsibility of the State. Under the Proposed Rules, the only exception are those instances in which a youth is on probation and is detained because the youth is charged with a new violation of law, in which case the detention days prior to final court disposition on the new charge are the responsibility of the counties. This finding is further supported by the Department’s treatment of juveniles on conditional release, which is also a postdispositional status. When a youth is on conditional release with the Department, the youth is on supervision similar to probation supervision. Conditional release and probation contain the same standard conditions. The only essential difference between a youth on “conditional release” and a youth on probation is that a youth on conditional release has the status of commitment rather than probation. There is no real difference in how a probation officer treats a youth on conditional release or a youth on probation and the DRAI does not provide any distinction for the two legal statuses. The Department considers both probation and conditional release qualified postdispositional statuses. Under the Proposed Rules, the counties pay for detention days for youth on probation who commit a new law violation. This is true regardless of whether the youth would be placed in secure detention but for the probation. However, detention days incurred by the same youth who commits a technical violation of probation are deemed the responsibility of the state, since, under the Proposed Rules, the youth has not been charged with a new violation of law. Under the Proposed Rules, when a youth on conditional release commits either a new law violation or technical violation of conditional release and is placed in secure detention, those detention days are to be paid by the State. The Two Day Rule As part of the Notice of Change, the Department added a provision referred to as “the Two Day Rule” to the definitions for pre and postdisposition. The Two Day Rule provides that detention days where the youth is on probation are the responsibility of the state “unless the youth is charged with a new violation of law that has a referral date between zero and two days prior to the detention admission date, as determined by subtracting the referral date in JJIS from the detention admission date in JJIS.” Proposed Rule 63G-1.011(15)(b). Despite conceding that it knows why juveniles are being detained, the Department included the “Two Day Rule” in the Proposed Rule “[b]ecause it is difficult to determine the level of accuracy in the aggregate looking at thousands of cases at once.” Thus, the Two Day Rule captures when the Department receives a referral date for a new criminal charge and presumes that if a juvenile is put in secure detention within two days of that referral date, the detention is for that new charge. In some instances, detention days that should be treated as state days would in fact be treated as county days under the “Two Day Rule.” Mark Greenwald, Director of Research and Planning for the Department, testified: Q. Well, let’s see how factually this would work is that there is a referral for a charge, a new offense, and the youth is detained the next day on a contempt unrelated to that new charge. Isn’t that day going to now be--he is going to be detained because of a violation of the law because of your two-day rule? A. Under the rule, yes, the open charge would count. Q. But if he was a probationer and it was a contempt, that would not have been a county day. That would be a State day. A. Yes. Q. But now because of the two-day rule we will now treat that as a county responsibility and county responsibility for the cost? A. Yes. Other examples were cited in the testimony, such as where there was a pick-up order for a youth on probation who had absconded. Where there was also a new charge, the detention days would be billed to the county, even if the pick-up order was issued prior to the new law violation. Mr. Greenwald testified that when the Department decided to adopt the Two Day Rule, it had done no analysis to determine whether a One Day Rule or a Three Day Rule would more accurately identify probationary youths placed in detention due to a new law violation. Both Judges Orlando and LaRue expressed uncertainty regarding the applicability and utility of the Two Day Rule, noting that the Two Day Rule does not have any correlation or relationship to when or how juveniles are placed in secure detention for violations of probation. Judge LaRue further indicated that the term “referral date” as referenced in the Two Day Rule has no impact on what he does “whatsoever” and is a term: I’ve never heard before. I don’t use that term. I’ve never heard the term. This is something that, in reviewing this potential rule change here – or the rule change, I should say, that’s something I came across and scratched my head a little bit about exactly what it means. I think I know what it means. But it’s not a term that I use – it’s not a term of art, and it’s not a term that I use generally. The evidence adduced at hearing did not establish a rational basis for inclusion of the Two Day Rule provision in the definitions of pre and postdisposition. Notably absent was any credible evidence that use of the Two Day Rule would accurately identify detention days related to new law violations by probationers. To the contrary, the evidence established that use of a blanket metric, arbitrarily set at two days, would under several scenarios improperly shift responsibility for detention days to the counties. Moreover, given the capabilities of the JJIS, there is simply no reason to “assume” that a detention has resulted from a new law violation if within a given period of time from referral, when the Department has the ability to accurately determine the actual reason for the detention. Estimates, Reconciliation and Actual Costs At the start of the fiscal year, the Department provides an estimate to the counties of their respective costs of secure detention which is broken down into 12 installments that the counties pay on a monthly basis. At the end of the fiscal year, the Department performs a reconciliation of those costs based on the “actual costs” and sends a statement to each county showing under or overpayment, and providing for debits and credits as appropriate. The credits or debits would be applied to the current year billing, although they would relate to the previous fiscal year. Proposed Rule 63G-1.013 provides the process for calculating the estimate to each county at the beginning of the fiscal year. As part of this process, the Proposed Rule provides that the Department shall estimate “detention costs, using the current year actual expenditures projected through the end of the fiscal year, with necessary annualized adjustments for any new legislative appropriations within the detention budget entity.” The Department has modified its process in the Proposed Rules so that the estimate of costs is based, to a certain extent, on actual expenditures from the prior year, instead of the appropriation. However, the estimate process also takes into account the appropriation for the upcoming fiscal year, and a portion of the estimate of costs is still based on the appropriation. The Department concedes that there is a need for it to calculate the estimate as accurately as possible, and that there have been occasions in the past where the Department has not provided the counties credits owed as part of the reconciliation process. It is also clear from the record that credits for overpayments have not been provided by the Department to the counties for several fiscal years, beginning in FY 2009-10. Proposed Rule 63G-1.017 provides the annual reconciliation process at year end for determining each county’s actual costs for secure detention. This process includes the calculation of each county’s actual cost which is determined by the number of detention days and a calculation of the actual costs. The total “actual costs” for secure detention are divided by the “total number of service days” to produce an “actual per diem,” which is then applied to each county’s detention days to calculate each county’s share of the actual costs. Proposed Rule 63G-1.011 provides a definition for “actual costs” as follows: [T]he total detention expenditures as reported by the department after the certified forward period has ended, less $2.5 million provided for additional medical and mental health care per section 985.686(3). These costs include expenditures in all fund types and appropriations categories (Salaries & Benefits, Other Personal Services, Expenses, OCO, Food Products, Legislative Initiatives, Fiscally Constrained Counties, Contracted Service, G/A-Contracted Services, Risk Management Insurance, Lease or Lease- Purchase of Equipment, Human Resources Outsourcing, and FCO-Maintenance & Repair). The challengers assert that the proposed rules relating to the reconciliation process are vague, internally inconsistent, and inconsistent with statutory requirements contained in the law implemented. These include, but are not limited to: (1) the definition of actual costs fails to include an exclusion for “the costs of preadjudicatory nonmedical educational or therapeutic services” pursuant to section 985.686(3); (2) the definition of actual costs is over broad by including “expenditures in all fund types and appropriations categories;” and (3) the Proposed Rules fail to provide for input from the counties, as set forth in section 985.686(6). The Proposed Rules do not provide for input from the counties regarding the calculations the Department makes for detention cost share.
The Issue Is Respondent, Department of Corrections' (Department), Notice of Intent to Award DC RFP-13-031 for Statewide Inmate Telecommunication Services to Intervenor, Global Tel*Link Corporation (Global), contrary to the governing statutes, rules, or policies or to the Department's Request for Proposal solicitation specifications?
Findings Of Fact Background The Legislature charged the Department with protecting the public through the incarceration and supervision of offenders and rehabilitating offenders through work, programs, and services. The Department is required to provide telephone access to inmates in its custody. Inmate telecommunication services provide inmates the ability to stay in contact with friends and family. The services promote and support efforts to help inmates re-enter society by fostering communications with the community outside jail and prison. The Department does not pay for these services. The inmates and their designated family members and friends pay for the services. The contract to provide the telecommunications service generates revenue for the Department. The provider pays the Department for access to the consumers. The provider charges the inmates and their designees for the service. The provider pays the Department a commission calculated as a percentage of revenues received. The commission is calculated as part of the charge for the services and is included in it. The price competition portion of the RFP is based on the prices charged to the inmates and designees and the commissions paid to the Department. According to the RFP, the State of Florida presently has a total inmate population of approximately 102,000 people. In fiscal year 2010-2011, the inmate calling services generated total revenue of $14,180,345 from 9,587,040 calls. In fiscal year 2011-2012, the inmate calling services generated total revenue of $13,513,495 from 8,226,577 calls. And in 2012-2013, the inmate calling services generated total revenue of $14,749,021 from 8,853,316 calls. In 2012–2013, interstate calls generated 11.6 percent of calls and 12.9 percent of revenues from the contract. Securus holds the contract with the Department to provide inmate telephone services and has for over six years. Before February 11, 2014, Securus paid a 35 percent commission to the Department on all of its call revenue from the contract. That changed as of February 11, 2014, when the Department interpreted a stayed order of the Federal Communications Commission (FCC), discussed in more detail later, to prohibit collecting the commissions on interstate calls. The record does not reveal if Securus stopped collecting the commission portion of the rates charged to inmates and their designees. The Department does not collect commissions because it interprets the FCC order to say that it cannot receive commission revenue because it is a state agency. The Department also declines to accept commissions because it fears finding itself in a position where it may have to refund money which has already been transferred to the general fund, possibly an earlier year's general fund. During the RFP process, Securus was aware of the Department's interpretation of the FCC order, because it had negotiated the change to its existing contract to end commission payments. The changes did not affect Securus charging inmates the commission. The Department did not include its interpretation of the order in the RFP, as modified by the Addenda. Commissions on interstate calls are significant revenue for the Department. This case involves the Department's second attempt to award a new contract for inmate telecommunication services. Earlier, the Department issued an Invitation to Negotiate for these services. CenturyLink, Global, and Securus all responded. The Department negotiated with all three. The Department initially decided to award the contract to CenturyLink. Eventually, the Department rejected all bids after it determined that the scoring language and selection criteria were poorly worded. They were subject to different reasonable interpretations that made how the Department would select the winning vendor unclear and made the playing field for vendors unequal. The vendors protested the decision to reject all bids. In upholding the decision to reject all bids, Administrative Law Judge Scott Boyd found at paragraph 70: The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. Global Tel Link Corp. v. Dep't of Corr., Case No. 13-3041BID (Fla. DOAH Nov. 1, 2013), adopted in whole, except for correcting two scrivener's errors, FDOC Case No. 13-81 (Fla. DOC Nov. 25, 2013). The Request for Proposals The Department released the RFP seeking to establish a five-year contract with a vendor to provide inmate telecommunications services on March 7, 2014. The Department subsequently issued Addenda 1, 2, and 3 to the RFP. The Addenda included vendor questions and the Department's answers. No vendor protested any term, condition, or specification of the RFP or the Addenda. The RFP sought vendor proposals to provide an inmate telephone system, video visitation system, and other services for inmates housed in the Department's facilities. The requested services included the actual service, system design, equipment, installation, training, operation, repair, and maintenance at no cost to the Department. The RFP included security, reporting, auditing, and monitoring requirements. It also established the procurement process, including scoring criteria. Of the RFP's 66 pages, only the commissions' role in pricing, scoring procedure, the score given Securus for its response to RFP section 3.15, and treatment of refunds are the focus of the disputes in this proceeding at this point. Review and Scoring The RFP established proposal scoring based upon four categories. The chart below reflects the categories, the tab of the RFP in which the scored categories are described, and the maximum points allowed for category. Mandatory Responsiveness Requirements 0 points Executive Summary and Other Proposal Submissions 0 points Category 1--Business/Corporate Qualifications (Tab 3) 50 points Category 2--Project Staff (Tab 4) 200 points Category 3--Technical Response (Tab 6) 400 points Category 4--Price Proposal 350 points TOTAL POSSIBLE POINTS 1,000 points The RFP breaks each of the categories into components, each referencing and correlating to specific RFP sections. These are found at RFP "Attachment 4--Evaluation Criteria." For each component, the Evaluation Criteria posed a question. For example, in Category 3, a question asks "How adequately does the Respondent describe their overall capability and process for providing a video visitation system?" The RFP provides a maximum score for each scoring component, which range from 15 to 50 points depending on the relative importance of the particular component. Each proposal was graded on the following qualitative scale: Omitted, Poor, Adequate, Good, and Exceptional. The RFP associates a point value with each qualitative description for each particular scoring component. For instance, if a component had a maximum score of 25 points, the scoring framework was as follows: Omitted--0; Poor--6.25; Adequate--12.5; Good--18.75; and Exceptional--25. A score of zero meant that a vendor completely omitted any information for the item from which a qualitative assessment could be made. The RFP directed the vendors how to generally format and package their proposals. Specifically, RFP Section 5 (Proposal Submission Requirements) stated: All Project Proposals must contain the sections outlined below. Those sections are called "Tabs." A "Tab," as used here, is a section separator, offset and labeled, (Example: "Tab 1, Mandatory Responsiveness Requirements"), such that the Evaluation Committee can easily turn [t]o "Tabbed" sections during the evaluation process.Failure to have all copies properly "tabbed" makes it much more difficult for the Department to evaluate the proposal. Vendors were to include seven "tabs" within their proposals: Tab 1 Mandatory Responsiveness Requirements Tab 2 Transmittal Letter with Executive Summary Tab 3 Business/Corporate Qualifications Tab 4 Project Staff Tab 5 Respondent's Financial Documentation Tab 6 Technical Response Tab 7 Minority/Service Disabled Veteran Business Enterprise Certification The RFP gave further instructions about the contents within each tab. RFP Section 5.6 provided the requirements for Tab 6, Technical Responses. It required vendors to provide a narrative technical response identifying how vendors will meet the scope of services required by the RFP and, more specifically, the scope of services described in RFP Sections 2 (Statement of Need/Services Sought) and 3 (Scope of Services). The RFP did not mandate any other formatting requirements for the contents of Tab 6. This becomes significant in the analysis of Securus's response to section 3.15 of the RFP. The RFP advised that the Department would assign an evaluation committee to evaluate proposals. It did not state how many evaluators would be selected to score proposals or whether evaluators would be responsible for scoring proposals in their entirety or just specific portions. The Department appointed a team of six evaluators: Jon Creamer, Shane Phillips, Randy Agerton, Steve Wilson, Charles Lockwood, and Richard Law. Mr. Law, a certified public accountant, reviewed each vendor's financial submissions on a pass/fail basis. The other five evaluators scored the technical responses, categories one through three. Julyn Hussey, the procurement officer, trained the evaluators, except for Mr. Law. She provided the evaluators with a training manual, the RFP, the vendors' proposals, and scoring sheets. During training, Ms. Hussey instructed the evaluators to review proposals in their entirety to properly evaluate and score their various components. The Department gave the evaluators approximately eight days to evaluate and score the proposals. The evaluators did not consult with each other during their evaluation. Each evaluator turned his completed score sheet in to Ms. Hussey. She then compiled the technical response scores. Ms. Hussey also calculated the price scores by taking the prices from the vendors' price sheet submissions and applying the RFP price scoring formula. The Department combined the technical and price scores to calculate each vendor's total score. Global received the highest total score with 2,960.42 points. Securus was second with 2,911.04 points. CenturyLink was third with 2,727.94 points. Global outscored Securus by 49 points on a 3,600-point scale. Global outscored CenturyLink by 232.48 points. Securus outscored CenturyLink by 183.10 points. Commissions, Pricing, and an FCC Order The vendors' price proposal was a critical category of the RFP review and evaluation. It was worth 350 of the 1,000 points available. Only the technical response could score more points, 400. Of the 350 points, 300 points were directed toward the inmate telephone service price proposal and 50 points were for the video visitation service price proposal. The RFP subdivides the inmate telephone service points into 150 possible points for the provider offering the highest commission payments to the Department; 125 points for the lowest intralata, interlata, intrastate, and interstate per-minute rates; and 25 points for the lowest local and local extended area per-minute rates. The vendor with the most favorable numbers in each subcategory received the maximum points. The rest received a percentage of the maximum points based on a ratio between their bid and the most favorable bid RFP Section 3.8.3, "Rate and Call Charge Requirements"3/ provided: For the price sheet, the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service and the video visitation service. Local and local extended area service calls shall be billed as local calls and shall not exceed $0.50 for a 15 minute phone call. For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Note: In accordance with Federal Communications Commission 47 CFR Part 64[WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract Call charges for international calls shall not exceed the maximum rate allowed by the appropriate regulatory authority during the time the call is placed. Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed thirty-five cents (.35) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. Long distance call charges for coin-operated phones at the Work Release Centers shall be at the same rates for inmate telephone calls. The Contractor shall agree that charges for calls shall include only the time from the point at which the called party accepts the call and shall end when either party returns to an on-hook condition or until either party attempts a hook flash. There shall be no charges to the called party for any setup time. The Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Local Exchange Carrier's (LEC's) or Competitive Local Exchange Carrier's (CLEC's) billing costs, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure that LEC's and CLEC's do not charge or pass on to the customer any additional fee or surcharges for billing. The Contractor shall be responsible for any such LEC or CLEC surcharges incurred if billing through the LEC or CLEC. In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Bill Statement Fee, Funding Fee, Mail-In Payment Fee, Western Union Payment Fee, Refund Fee, Regulatory Recovery Fee, Wireless Admin Fee, Single Bill Fee, Paper Statement Fee, Account Setup Fee, Account Maintenance Fee, Inactive Account Fee, Account Close-Out Fee, Non-Subscriber Line Charge, Inmate Station Service Charge, Third-Party Payment Processing Fee, State Regulatory Recovery Fee, Check/Money Order Processing Fee, Biometric Service Charges, JPay Payment Fee, Federal Regulatory Cost Recovery Fee, Regulatory and Carrier Cost Recovery Fee, Validation Surcharge or Wireless Termination Surcharge. The Contractor shall ensure, inmates' family and friends utilizing the Florida Relay Service to receive calls from inmates are charged the same rates as those family and friends receiving calls from inmates not utilizing this service. [emphasis added]. The Department intended for the boldface note to advise responding vendors that the vendor would not pay commissions on interstate call revenues. The language raised questions which the Department replied to in the Addenda issued after the RFP issued. None of the Addenda modified the plain statement in section 3.8.3 that "the Respondent shall establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate on the price sheet (attachment 5) for the inmate telephone service." Section 7.3.1 of the RFP established the requirements for commission and monthly payments. It states: The Contractor shall pay to the Department a monthly commission based on the percentage of gross revenues as determined through this RFP process. The Department will begin to receive payment for a facility on the date the Contractor assumes responsibility for the operation of that facility's inmate telecommunication service in accordance with the Final Transition and Implementation Plan. Sections 7.3.2 through 7.3.4 contain additional requirements for commission payments, supporting documentation for the commission calculation, and penalty, if the vendor does not timely make the final commission payment at the end of the contract. They make the importance of commission payments to the Department clear. Attachment 5 is a mandatory form for vendors to provide their proposed call and commission rates. It contains the same boldface note about the FCC order as section 3.8.3. The form solicited a blended rate and a single commission rate for telephone services. FCC, 47 C.F.R. Part 64 (WC Docket No. 12-375; FCC 13-113) (FCC order), referred to in RFP Section 3.8.3 and Attachment 5, is a commission decision and regulation, effective May 31, 2013, addressing a need for reform in what the FCC determined were "egregious interstate long distance rates and services" in the inmate telecommunications business. The FCC identified paying commissions to correctional institutions and including them in the rates charged inmates and their families and other designees as a significant factor contributing to unreasonably high rates for inmate telecommunications services. The decision also addressed surcharges and fees. The FCC determined that inmate telecommunications charges must be cost- based and that commission payments, among other things, could not be included in the costs. The FCC adopted subpart FF to 47 C.F.R. part 64 of its regulations to regulate inmate calling services. The FCC included in subpart FF, section 64.010, titled, cost-based rates for inmate calling services. It states: "All rates charged for Inmate Calling Services and all Ancillary Charges must be based only on costs that are reasonably and directly related to the provision of ICS [inmate calling services]." This is the rule implementing the FCC's decision that commission payments are not included in the reasonably and directly related costs. The FCC made clear that it was not prohibiting payment of or collection of commissions, only prohibiting including them in the costs determining the fee paid by inmates and their designees. The FCC addressed this in paragraph 56 of the order, which states: We also disagree with ICS providers' assertion that the Commission must defer to states on any decisions about site commission payments, their amount, and how such revenues are spent. We do not conclude that ICS providers and correctional facilities cannot have arrangements that include site commissions. We conclude only that, under the Act, such commission payments are not costs that can be recovered through interstate ICS rates. Our statutory obligations relate to the rates charged to end users—the inmates and the parties whom they call. We say nothing in this Order about how correctional facilities spend their funds or from where they derive. We state only that site commission payments as a category are not a compensable component of interstate ICS rates. We note that we would similarly treat "in-kind" payment requirements that replace site commission payments in ICS contracts. Providers of inmate calling services, including all three vendors in this proceeding, sought review of the decision and regulation by the United States Court of Appeals for the District of Columbia Circuit. The court stayed section 64.010, along with sections 64.6020, and 64.6060. Following release of the RFP, the Department received and answered inquiries from vendors. The inquiries, the Department's responses, and changes to the RFP are contained in Addenda 1, 2, and 3 to the RFP. Rates and commissions received a fair amount of attention in the process. In response to inquiries about section 3.8.3 and Attachment 5, the Department changed both with Addendum 2. The questions and Department responses follow. Question No. 4 states: Page 30: 3.8.3 - Rate and Call Charge Requirements and Attachment 5 – Blended Call Rates. Regarding the blended rate (inclusive of all surcharges) to be bid – the current wording could be opportunistically misinterpreted in a few different ways: First in the treatment of per-call versus per-minute fees, based on our understanding, one bidder could possibly offer a flat $1.80 per call fee for non-local inmate telephone calls and claim to have the same blended rate ($1.80/15 minutes = $0.12) as someone bidding $0.12 per minute with no per-call fee. This could occur even though calls average less than 15 minutes (and many calls are less than 10 minutes), meaning these two offers are not comparable in terms of overall cost to family members. Second, the RFP wording could also possibly be interpreted as allowing a Contractor to set different rates for different call types (collect/prepaid, intraLATA/interstate) and then averaging them using assumptions they define. Question 1: To minimize cost to family members and make offers comparable, would the Department please explicitly disallow per-call fees for the inmate telephone system (for example, per-call setup charges, per-call surcharges), allowing only a true per-minute rate? Question 2: If no to Question 1, would the Department require separate disclosure of per-call fees and per-minute rates? Question 3: Would the Department please verify that ALL non-local domestic calls-- intraLATA, interLATA, and interstate, for both collect and prepaid-–must be charged at an identical rate? Answer No. 4 states: Question 1: Per this Addendum #2, the following revisions will be made to Section 3.8.3: In 3rd paragraph after first sentence add: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates delete: which Delete 4th paragraph beginning with Note. In 6th paragraph first sentence revised to read: Local call charges for coin-operated telephone calls at the Work Release Centers shall not exceed forty-five cents (.45) per local call plus the Local Exchange Carrier (LEC) charges, which vary between LEC's. In 9th paragraph following In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for the collect, prepaid calls or video visitation visits any of the following charges and/or fees: Add Pre-call setup charges, Pre-call surcharges, Delete last paragraph; Question 2: Not applicable, Question 3: Confirmed, per Section 3.8.3 all non-local and local extended area calls must be charged at an identical rate. Question No. 5 states: Attachment 5 - Price Sheet. Page 30--Section 3.8.3 states that on the price sheet, the Respondent will provide a "single, blended rate per minute, inclusive of all surcharges . . . ." Attachment 5 states "Blended Telephone Rate for All Calls . . ." To eliminate ambiguity, would the Department consider changing the language in Attachment 5 to read "Blended Telephone Rate Per Minute for All Calls . . . ?" [sic] Answer No. 5 states: Attachment 5 will be revised to include "Blended Telephone Rate Per Minute for All Calls". Question No. 6 states: Page 30: 3.8.3 - Rate and Call Charge Requirements. The fourth paragraph states that "In accordance with Federal Communications Commission 47 CFR Part 64 [WC Docket No. 12-375; FCC 13-113]--Rates for Interstate Calling Services--effective February 11, 2014, no commission shall be paid on revenues earned through the completion of interstate calls of any type received from the Contract." Respectfully, this interpretation of the FCC's Order is incorrect. The Order, without question, does not prohibit the payment of commissions on interstate calls. Also, rules regarding future cost-based regulation (including consideration of commissions in rate-setting) have been stayed by the D.C. Circuit Court of Appeals, and FL DOC interstate rates are well below the FCC rate caps that have been left in place by the Court. This is why most providers have continued to pay commissions on interstate calling, in compliance with their contracts. Q. Will the State consider removing this paragraph from the RFP in order to ensure revenue for the State and a level playing field across providers? Answer No. 6: Section 3.8.3 and Attachment 5--Price Sheet is amended, per this Addendum to remove the paragraph. In addition, Section 7.3.1 has also been amended, per this Addendum, to state that commissions will be paid in accordance with all Federal, State and Local regulations and guidelines. Further questions and clarifications followed. They are found in Addendum 3 to the RFP. Question No. 2 states: In Addendum No. 2; Answer #4 Revises Section3.8.3 by revising the 3rd paragraph Instructions are to add the following language: The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (delete: which) For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls which shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. The Respondent shall establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. These per minute rates (deIete [sic]: which). In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. The instructions to add "These per minute rates (delete: which)" does not fit with the instructions. The word "which" is not included in this area of paragraph 3. Question #2: Can the Department please clarify? Answer No. 2 states: To further clarify 3.8.3, paragraph 3 is revised to read as follows: For the price sheet, the Respondent shall establish a single, blended rate per minute, inclusive of all surcharges, for all calls on the North American Dialing Plan, including intralata, interlata, intrastate, and interstate calls. The Respondent shall also establish a separate single, blended rate per minute inclusive of all surcharges for all local and local extended area calls. Both of these per minute rates shall not exceed the maximum rate per minute allowed by the Federal Communications Commission (FCC) and appropriate regulatory authority during the time the call is placed. In addition to the FCC, vendors can contact the state consumer protection agency, Better Business Bureau, or State Attorney General's Office to obtain maximum rate per minute information. Question No. 3 states: Question: Is the Department requiring the successful Respondent to pay commissions on revenues generated through the completion of interstate calls? Answer No. 3 states: The Department's position is that the collection of commission rates will be determined by the FCC ruling 47 CFR Part 64 [WC docket no. 12-375; FCC13-113]. For purposes of this solicitation the Department requests respondents submit a commission rate for interstate calls. The Department will comply with any future FCC ruling. Question No. 10 states: Section 7.3.1 was revised to include: "Commissions will be paid in accordance with all Federal, State and Local regulations and guidelines." There are no Federal, State, or Local regulations and guidelines which require phone vendors to pay commissions on interstate calling. Thus, in not paying commissions on interstate calling, there would be no violation of any Federal, State, or Local regulation or guideline. The requirement as to whether or not commissions will be paid on interstate calling must come from FL DOC and must be clearly indicated in the RFP. If not clearly indicated one way or another, we fear some vendors may have an unfair advantage as commissions are not currently being paid and there does not seem to be a compliance issue with the current contract which requires such commissions. Please, clearly specify whether or not commissions are required to be paid on interstate calls. Answer No. 10 states: Please see answer to question 3. The Department never definitively stated whether it would ultimately collect commissions on interstate revenues. Nor did it provide a means for vendors to propose rates or commissions based upon whatever the Department concluded were the most likely scenarios resulting from the FCC order and appeal. But the Department's RFP persisted in the RFP requirement that the bidders must include the commission in the calculation of their blended rate for the price proposal. This stands in contrast to the RFP's lengthy list of items, such as bill statement fees, paper statement fees, and account setup fees, which could not be included in the rate. These are items, like the commissions, that the FCC order said could not be part of the fee base. A vendor, who did not calculate the commission in the blended rate, would have a significant price advantage over a vendor who included the commission in its blended rate. It could propose lower rates and/or higher commissions while maintaining its profit margin. That is because although the price sheet identifies a commission, the commission is not accounted for in the blended rate. CenturyLink included payment of a commission rate of 65.3 percent on interstate calls in the blended rate it provided on Attachment 5. This action is a reasonable application of the statements of the RFP and the Addenda about blended rates, commissions, and the cryptic statement about plans to follow the FCC order. CenturyLink proposed a blended rate that did "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." If CenturyLink had not included the commission payment on interstate calls in its blended rates, it could have bid higher commissions, lower rates, or a combination of both. Securus identified a commission percentage for all calls of 73 percent on its Attachment 5 price sheet. Securus did not include the cost of paying a commission on interstate calls in calculating the blended rate that it submitted. This allowed Securus to submit a lower blended rate than it would otherwise have had to submit to achieve the same revenue from the contract. The blended rate that Securus proposed did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Global identified a commission percentage of 46 percent for all calls in its Attachment 5 price sheet. In determining the proposed rates for interstate calls, Global did not include or assume payment of the commission percentage rate. This allowed it to submit lower blended rates and/or a higher commission rate. Global did not intend to or think it would be required to pay commission rates on interstate calls. This was based on its evaluation of the FCC order, the appeal, and the Department's decision not to accept commission payments on interstate calls under its current contract with Securus. This is why it did not include the commission as a cost when calculating the blended rate. Global chose to take the business risk that its evaluation of the FCC order would be correct. If it was incorrect and a commission payment was required, Global was prepared to make the payment, even though it would not have been collected from inmates and their designees through the blended rate. The blended rate proposed by Global did not "establish a separate single, blended rate per minute, inclusive of all surcharges and department commission rate." Ms. Hussey applied the formula in the RFP to determine points awarded each vendor for its price proposal. This calculation was a ministerial function that did not call for any exercise of judgment or discretion. The overall cost ranking scores were: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scores for the commissions were: Global 94.52, Securus 150, and CenturyLink 134.18. The scores for the blended rates for inmate telephone services that included interstate services were: Global 125, Securus 56.25, and CenturyLink 50.90. This difference reflects the vendors' differing treatment of commissions when proposing their blended rates. The Department did not know during the evaluation process that Global and Securus had not included or assumed payment of the commission in its proposed rates for interstate calls. The Department learned this during discovery in this proceeding. Not including commission payments on interstate calls in the proposed blended rate was contrary to the instructions of the RFP. Securus Response to RFP Section 3.15 The Department awarded Securus zero points for the question of "[h]ow adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of the RFP?" This criterion related to the performance measures of RFP Section 3.15, for which proposals could earn 125 total points. The difference between zero and the possible maximum points would have made a difference in winning and losing the contract award for Securus. The score of zero is a factual finding by the Department that Securus's 600-plus-page proposal had no information from which evaluators could qualitatively assess the proposal by that criterion. A score of zero is not a qualitative assessment, like a score of "poor" or "exceptional." A score of zero reflects a finding that information is completely absent. The evaluation criteria score sheet, RFP Attachment 4, provided factors to be considered in evaluating and scoring proposals. It presented the factors to evaluators in the form of questions to evaluators. For section 3.15, the question and accompanying scores allowed were: How adequate is the Respondent's plan to meet the performance measures outlined in section 3.15 of this RFP? (Omitted-0; Poor-6.25; Adequate-12.5; Good-18.75; and Exceptional-25.) Because the Department allowed each evaluator to score this factor, a total of 125 points was ultimately available to the vendors. RFP Section 3.15 provides: Performance Measures Upon execution of this contract, Contractor agrees to be held accountable for the achievement of certain performance measures in successfully delivering services under this Contract. The following Performance Measure categories shall be used to measure Contractor's performance and delivery of services. Note: the Contractor shall comply with all contract terms and conditions upon execution of contract and the Department may monitor each site upon implementation of services at that site to ensure that contract requirements are being met. The Department reserves the right to add/delete performance measures as needed to ensure the adequate delivery of services. Performance Outcomes and Standards; and Other Contract Requirements. A description of each of the Performance Measure categories is provided below: RFP Section 3.15 was divided into two components. Section 3.15.1 listed key "Performance Outcomes and Standards" deemed most critical to the success of the contract and required that "the contractor shall ensure that the stated performance outcomes and standards are met." The key elements were: (1) Completion of Routine Service, (2) Completion of Major Emergency Repair Service, and (3) Commission and Call/Video Visitation Detail Report (Invoice Documentation). The first is RFP Section 3.15.1. It provides: Performance Outcomes and Standards Listed below are the key Performance Outcomes and Standards deemed most crucial to the success of the overall desired inmate telecommunication service. The contractor shall ensure that the stated performance outcomes and standards (level of achievement) are met. Performance shall be measured as indicated, beginning the second month after which service has been fully implemented. Completion of Routine Services Outcome: All requests for routine service (as defined in Section 1.22) shall be completed within twenty-four (24) hours of request for service from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that service is completed to the date/time that the request for service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twenty-four (24) hours of notice from the Department. Completion of Major Emergency Repair Service Outcome: All major emergency repair service (as outlined in Section 3.10.8) shall be completed within twelve (12) hours of request for repair from the Department, unless otherwise instructed by the Department. Measure: Compare the date/time that major emergency repair service is completed to the date/time that the request for major emergency repair service was received from the Department by the Contractor. (Measure Monthly). Standard: Ninety percent (90%) of routine service requests shall be completed within twelve (12) hours of notice from the Department. Commission and Call/Video Visitation Detail Report (Invoice Documentation): Outcome: The Contractor shall provide the Commission and Call/Video Visitation Detail Report to the Contract Manager or designee as specified in Section 7.3.3 within thirty (30) days of the last day of the Contractor's regular billing cycle. Measure: Compare the date the Commission and Call/Video Visitation Detail Report was received with the last day of the Contractor's regular billing cycle. (Measure Monthly). Standard: One hundred percent (100%) of Commission and Call Detail Reports shall be received within thirty (30) days of the last day of the Contractor's regular billing cycle. Upon execution of this Contract, the Contractor hereby acknowledges and agrees that its performance under the Contract shall meet the standards set forth above. Any failure by the Contractor to achieve any outcome and standard identified above may result in assessment of Liquidated Damages as provided in Section 3.17. Any such assessment and/or subsequent payment thereof shall not affect the Contractor's obligation to provide services as required by this Contract. Section 3.15.2 advised that the Department will monitor the contractor's performance to determine compliance with the contract. It states: Other Contract Requirements Standard: The Department will monitor the Contractor's performance to determine compliance with other contract requirements, including, but not limited to, the following: Video Visitation System (as outlined in Section 3.7) Inmate Telecommunication System Functionality (as outlined in Section 3.7) Transition/Implementation/Installation of System Bi-Annual Audit Timely Submittal of Corrective Action Plans (when applicable) Measure: Failure to meet the agreed-upon Final Transition/Implementation/Installation schedule or failure to meet (compliance with other terms and conditions of the contract or contract requirements listed above) may result in the imposition of liquidated damages Each of the three items in section 3.15.1 and the five items in section 3.15.2 relate directly to a particular provision within RFP Section 3 titled, "Scope of Services." Section 3.15.1 related to RFP Sections 1.22 and 3.10.7 (Routine Maintenance), 3.10.8 (Major Emergency Repair Service), and 7.3.3 (Detail Report). Section 3.15.1 specifically identifies the last two. Similarly, section 3.15.2 cross referenced section 3.7 (Telecommunications Services System Functionality) for the first two performance measure items. Two others items relate directly to sections 3.5 (Facility Implementation Plan and Transition of Service), 3.6 (Installation Requirements), and 3.11 (Bi-Annual Audit). This is significant because Sections 3.5, 3.6, and 3.11 were independently scored. In other words, the RFP required that the proposals contain a narrative explaining how vendors planned to provide the services required by each of those sections. The RFP did not require the proposals to contain a separately delineated section titled, "3.15." It only required that each proposal include, under "Tab 6," a narrative description of the vendor's solution and plan to meet the performance measures. Evaluation of Responses to Section 3.15 Global included a specifically labeled section 3.15 in its response. It essentially copied and pasted the RFP language for Sections 3.15, 3.15.1, and 3.15.2, and after each subsection, inserted the words "GTL [Global] Response: GTL understands and complies." Global did not provide a substantive narrative under the heading, section 3.15. CenturyLink's labeled response to section 3.15 was very similar. The evaluators reviewed the section of Global's proposal labeled as responsive to section 3.15. The maximum score the evaluators could award per evaluator was 25 points. Global earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. The evaluators reviewed CenturyLink's proposal labeled as responsive to section 3.15. It also earned scores of 25, 18.75, 12.5, 12.5, and 12.5 from Messrs. Lockwood, Agerton, Phillips, Creamer, and Wilson, respectively. All five evaluators reviewed copies of the vendors' proposals. Some evaluators performed a section-by-section and some performed side-by-side evaluations of the proposals. Since Securus did not have a labeled section 3.15 and the other proposers did, the evaluators scored Securus's proposal as "Omitted-0" for section 3.15. After their initial review of Securus's proposal, three evaluators raised concerns with the Department's procurement officer, Ms. Hussey, over their inability to find a section in the Securus proposal specifically identified as a response to Section 3.15. Ms. Hussey reiterated the instruction given during evaluator training to review proposals in their entirety when scoring any component of the RFP. None of those evaluators changed their scores of "omitted" for section 3.15 of Securus's proposal after receiving Ms. Hussey's additional instruction and presumably performing a second review of Securus's proposal. RFP Section 3.15 included cross references to sections 3.7 and 3.10.8. Following these referenced sections to the matching section numbers in the Securus proposal reveals narratives addressing the section 3.15 requirements. In addition, these cross-referenced sections were separately scored by each evaluator during his review of each vendor's Telecommunications Service System Functionality and Telecommunication Service Equipment Requirements. Securus's proposal complied with the RFP specifications by affirming Securus's commitment to comply with section 3.15 throughout the proposal. Although Securus's proposal did not include a separate tabbed section addressing Securus's plan to meet the section 3.15 performance measures, Securus provided a narrative explaining how Securus would meet each performance measure required in section 3.15. Securus also provided narratives explaining how it would meet and provide the scope of service of each one of the performance measures of Section 3.15. The first performance measure in RFP Section 3.15.1 required that 90 percent of all routine service be completed within 24 hours of the Department giving notice to the vendor. The routine service requirement was located at section 3.10.7. In its proposal, behind Tab 6 and labeled "3.10.7 Routine Service," on page 388, Securus's response stated: All routine service shall be completed within twenty-four (24) hours of the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all routine service, as we do under the existing contract, within twenty-four (24) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. This response complied with the RFP requirement. It could not rationally be deemed omitted. The second performance measure in RFP Section 3.15.1 required that 90 percent of all major emergency repair services (as outlined in section 3.10.8) be completed within 12 hours of the Department giving notice to the vendor. This performance measure cross-referenced section 3.10.8. Securus's proposal behind Tab 6 and labeled "3.10.8 Major Emergency Repair Service," addressed the emergency repairs stating: All major emergency service shall be completed within twelve (12) hours of the initial system failure notice request or liquidated damages may be imposed as stated in Section 3.17. Securus has read, understands, and complies. Securus Field Repair staff is strategically located throughout the state to be able to respond to all repair service needs in order to meet all repair service needs. Securus will continue to complete all major emergency service, as we do under the existing contract, within twelve (12) hours if the initial system failure notice, service request for service or equipment failure or liquidated damages may be imposed as stated in Section 3.17. Securus's response complied with the RFP requirement. It could not rationally be deemed omitted. The third performance measure in RFP Section 3.15.1 required that the Commission and Call/Video Visitation Detail Report (Invoice Documentation) be provided to the contract manager or designee, as specified in section 7.3.3 at the end of every month with the contractor's regular billing cycle. Securus addressed this requirement behind Tab 6 in a section labeled "2.4 Revenue to be Paid the Department," on page 107. Securus's response stated: This RFP will result in a Revenue Generating Contract. The Contractor shall pay the Department a commission based on a percentage of gross revenue. The Contractor shall be responsible for collections and fraud, and shall not make any deductions from gross revenue for uncollectible accounts, billing fees or other administrative costs prior to applying the commission percentage. Notwithstanding the above, gross revenue shall not include taxes charged by an appropriate governmental entity. The monthly commission amount is obtained by multiplying the commission percentage times each month's total charges. The successful contractor shall submit a Commission and Call/Video Visitation Detail Documentation for Monthly Payment report as indicated in Section 7.3.3 with the monthly commission payment. Securus has read, understands and complies. Securus will provide the monthly payment report as required and will provide all appropriate auditing detail required upon request from the Department. This response complies with the RFP requirement and cannot rationally be deemed omitted. Some evaluators acknowledged that they did not factor Section 3.15.2 into their scoring of Securus's proposal. The terms of the RFP require considering section 3.15.2 during the scoring of section 3.15. It is part of that section. Failing to consider Securus's narrative related to section 3.15.2 is not rational. As with section 3.15.1, Securus's proposal complied with the RFP Section 3.15.2. Securus committed to complying with the requirements of section 3.15.2 throughout its proposal. The record does not prove whether each evaluator re-reviewed the cross-referenced sections identified in Section 3.15. But Mr. Phillips did. Despite seeing the exact language in those sections as required in the "Outcome" portion of Section 3.15, Mr. Phillips awarded Securus a score of zero because, in his mind, "key parts of 3.15" were not addressed. The conclusion that Securus entirely omitted a plan to address Section 3.15's requirements is irrational and clearly erroneous. Something was there. A score of omitted is not supported. Mr. Phillips also did not score section 3.15 consistently with the way he scored another section of Securus's proposal. He originally gave Securus a score of zero for section 3.14 entitled, Training, because he did not find a specifically delineated section titled section 3.14 in Securus's response. But Mr. Phillips changed his score before submitting it to Ms. Hussey because upon further review of Securus's proposal, he found some aspects that addressed the training requirements of section 3.14. He scored that section accordingly. This highlights the error in evaluators not doing the same with section 3.15. The evaluators irrationally concluded that Securus failed to include in its technical proposal any information explaining how it would meet the performance standards and outcomes of section 3.15. Some evaluators relied on the theory that Securus did not "acknowledge" the outcomes and standards. As established above, Securus acknowledged that "the Performance Outcomes and Standards are crucial to the success of the overall inmate telephone service," and throughout its technical response, Securus addressed all the required outcomes and standards. Securus mentioned and acknowledged the performance outcomes and standards a total of six times in its proposal: twice on page 42 and once on each of pages 100, 138, 160, and 392. Three of those pages were narrative responses to sections 3.7 and 3.11, which are specifically included as part of section 3.15. Some evaluators also claimed that Securus never expressly agreed to be bound by the performance measures of section 3.15. That may theoretically affect the qualitative evaluation of the response, but it does not support a finding that the information was omitted. Also, the RFP did not require a vendor to specifically delineate each of the 18 subsections of section 3 in its response. To comply with the Technical Response section of the RFP, a vendor needed to address, in narrative form, its plan to provide the scope of services outlined in section 3. This was not disputed. Several Department employees testified and agreed that a response to the RFP did not require specifically delineated sections of the response that mirrored the delineation of the RFP. Inclusion of Prohibited Fees In Addendum 2, the Department asked the vendors to provide a sample refund policy. The policies were not described as or intended to be final refund policies that would be used in administration of the contract. The terms of a refund policy, if any, would be negotiated with the winning vendor, subject to the requirements of the RFP, including the prohibition against including fees in the blended rate. The sample policies of Securus and Global included some costs or forfeitures for obtaining a refund depending on how and when the inmate sought the refund. These are not prohibited fees or even items agreed to in the RFP. They are only samples. The evidence does not prove that the sample refund policies violate the requirement of section 3.8.3. Scoring The review and evaluation process described in section 6 of the RFP identified the maximum number of points that could be awarded for each part of the inmate calling services project. The total number of possible points was 1,000. The sections and points allotted to them were as follows: Mandatory Responsiveness Requirements--0, Executive Summary and Other Proposal Submissions--0, Business/Corporate Qualification--50, Project Staff--200, Technical Response--400, and Price Proposal--350. This allowed 350 points for the pricing section and 650 for the remaining technical sections. Because each evaluator scored the technical sections, the cumulative totals of their scores exceed 1,000. Securus maintains that this scoring is inconsistent with the process described in the RFP. But each evaluator scored the technical portion of the proposals within the maximum 650 total points available to each vendor. And the procurement staff scored the price proposals within the maximum 350 points available for price to each vendor. Applying the RFP's mathematical scoring methodology to the price proposals, the procurement staff scored the pricing as follows: Global 280.42, Securus 276.04, and CenturyLink 232.94. The scoring for each was within the RFP's 350-point maximum. The scores given by each evaluator for the technical portion of the vendors' proposals are as follows: EVALUATORS: Shane Phillips Steve Wilson Jon Creamer Charles Lockwood Randy Agerton CenturyLink 722.94 857.94 707.94 776.69 734.19 Securus 749.79 808.54 702.29 834.79 779.79 Global 782.92 880.42 751.67 859.17 802.92 Each evaluator's technical score when combined with the pricing score was within the RFP's 1,000-point maximum. Ms. Hussey totaled all the evaluator's technical scores for each vendor with the pricing score for that vendor. The resulting number exceeded 1,000. The award memorandum presented the totals, as follows: Ranking = Cost + Total Evaluator Scores (As Posted) Commission + Rates Evaluation Scores Total Ranking Global 280.42 2,680.00 2,960.42 1 CenturyLink 232.94 2,495.00 2,727.94 3 Securus 276.04 2,635.00 2,911.04 2 This method of compilation did not affect the relative ranking of the vendors. If the technical scores awarded by the five evaluators are averaged and added to the pricing scores, the points total for each vendor is under 1,000. And the ranking of the vendors does not change. Ranking = Cost + Evaluator Scores (Evaluator Scores Averaged) Commission + Rates Evaluation Scores Total Ranking Global 280.42 535.00 815.42 1 CenturyLink 232.94 499.00 731.94 3 Securus 276.04 527.00 803.04 2 Averaging in this fashion is consistent with the RFP. The evidence does not prove the Department erred in scoring the proposals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order rejecting all proposals for Request for Proposal DC RFP-13-031. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 4th day of September, 2014.
The Issue The issue is whether respondent’s law enforcement certification should be disciplined for the reasons cited in the administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, David G. Delisle, is a certified correctional officer, having been issued Correctional Certificate No. 67615 on August 31, 1992, by petitioner, Criminal Justice Standards and Training Commission (Commission). When the relevant events herein occurred, respondent was employed by the Jacksonville Sheriff’s Office as a correctional officer at the Duval County Pre-Trial Detention Facility (detention facility). In an administrative complaint filed on March 21, 1996, the Commission charged that (a) on May 30, 1995, respondent “engage(d) in an unprofessional relationship with an inmate of said facility, under his supervision;” (b) on May 30, 1995, respondent unlawfully “receive from an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling paper;” (c) on May 30, 1995, respondent unlawfully “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: cigarettes and/or rolling tobacco;” (d) on June 17, 1995, respondent engaged in “an unprofessional relationship with an inmate of said facility, under his supervision;” and (e) on June 17, 1995, respondent “(gave) to an inmate . . . an article or thing declared to be contraband, to wit: food.” Respondent disputed these allegations and initiated this proceeding. At final hearing, petitioner voluntarily dismissed item (c). During respondent’s tenure as a correctional officer at the detention facility in 1995, James M. Bonner and James Barbour were inmates under his supervision. In May of 1995, respondent approached inmates Bonner and Barbour and offered them tobacco products, including rolling paper, and other considerations if they would “beat up” certain inmates, including one Max Harrison, who were “causing trouble,” for respondent. The purpose of such action was to cause those inmates to transfer out of the cellblock thereby relieving respondent of having to deal with them. In the case of inmate Max Herring, respondent wanted Henning to leave the cellblock because he was allegedly a homosexual. Bonner and Barbour agreed to beat up Herring and other unidentified inmates. On June 19, 1995, Bonner, Barbour and several other inmates, tied inmate Herring to a bed with sheets and began striking him with “flip-flops” and shower shoes. Herring suffered abrasions and bruises on his body. Bonner confirmed that, at the request of respondent, several other inmates, none of whom were identified, were also beaten. In return for these favors, respondent provided inmates Bonner and Barbour with extra portions of jail food, extra food brought into the facility from outside establishments, magazines, cigarettes, rolling paper, and radio privileges. Although not specifically identified at hearing, certain "regulations" of the Jacksonville Sheriff's Office prohibit a correctional officer from furnishing such goods and services to inmates, and the introduction of illegal contraband into a jail violates state law. On at least one occasion, respondent received tobacco products and rolling paper from Bonner to give to other inmates. This also violated an unidentified facility rule as well as state law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order determining that respondent has failed to maintain good moral character and required by state law and that his law enforcement certificate be revoked.DONE AND ENTERED this 24th date of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. David G. Delisle 5350 Arlington Expressway, No. 3902 Jacksonville, Florida 32211
The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
The Issue The issue is whether Petitioner is entitled to an exemption from disqualification for employment with Respondent due to Petitioner's plea of guilty to three felony counts of credit card fraud, one felony count of theft, and one misdemeanor count of theft.
Findings Of Fact Petitioner was born on July 21, 1967. He was raised in Miami, where he earned his high school diploma in 1985. Petitioner's first employment after high school was as a child care worker. He was initially employed at the Elaine Gordon Treatment Center, for four years, and then the Southeast Florida State Hospital, for a year and a half. For the next three years, Petitioner worked as a senior patient clinical assistant at a facility operated by the University of Miami; in this job, Petitioner worked with adolescent sex offenders. His last job in the Miami area was as a supervisor at the Village for Behavioral Change, where Petitioner worked as a supervisor at a halfway house for delinquent youth; after a short time at this job, Petitioner decided to move to Tampa. Petitioner's first job in Tampa was as a counselor of adolescents at Tampa Crossroads, which provides alcohol and drug treatment. After a year at Tampa Crossroads, Petitioner became employed by the Pinellas Regional Juvenile Detention Center as a Detention Care Worker I. While working for Tampa Crossroads, Petitioner lived with his cousin and her brother. His cousin was employed by a company that distributed and collected credit cards. A few months after arriving in Tampa, Petitioner and his cousin developed a scheme to make fraudulent use of credit cards with which the cousin came into possession through her employment. For example, Petitioner and his cousin used the credit card of a recently deceased person, whose survivors had returned the card to the cousin's company. This seems to have been the full extent of the scheme; evidently, neither Petitioner nor his cousin gave much thought to escaping detection. Through the fraudulent use of credit cards supplied by his cousin, Petitioner bought furniture, car repairs and accessories, gasoline, meals, and home electronic equipment. Fraudulently charging as much as $17,000, Petitioner and his cousin were arrested after a couple of months. Petitioner expresses remorse for his actions. Without trying to avoid responsibility for his criminal behavior, Petitioner suggests that he was in a difficult period of his life because his first marriage had just failed and this was his first time away from Miami. But basically he admits he engaged in the fraud because he wanted things. In September 1995, a law enforcement officer employed by the Tampa Police Department filed an affidavit charging Petitioner as follows: two felony counts of "forgery," in violation of Section 831.01, Florida Statutes; two felony counts of "fraudulent use of credit card," in violation of Section 817.61(1), Florida Statutes; one felony count of "possession of two or more/dealing in credit cards," in violation of Section 817.60(6B)[sic], Florida Statutes; one felony count of "grand theft," in violation of Section 812.014, Florida Statutes; and one misdemeanor count of "petit theft," in violation of Section 812.014, Florida Statutes. Following his arrest on October 3, 1995, Petitioner pleaded guilty to two felony counts of "fraudulent use of a credit card," one felony count of "dealing credit cards of another," one felony count of "grand theft third degree," and one misdemeanor count of "petit theft." By Order of Probation entered February 29, 1996, the court withheld adjudication of guilt and placed Petitioner on probation for eight years: five years for the first three counts and three years, to run consecutively, for the fourth count. (The probation for the fifth count ran concurrently with the probation for the other counts.) The Order of Probation also ordered Petitioner to pay restitution in the total amount of $17,896.32 and court costs of $200, as well as perform 200 hours of community service. Evidently by separate order, the court required Petitioner to pay the restitution monthly in payments of $200. Thus, assuming no interest, Petitioner must pay restitution over 90 months, which means that he would complete restitution prior to the termination of probation, which is due to terminate February 28, 2004. Petitioner earns $25,000 annually from a janitorial service that he operates. Out of takehome pay of $661 every two weeks, Petitioner pays monthly child support of $260, monthly rent of $400, and monthly debt payments of $100. Petitioner owns no assets, except for a unliened 1996 Kia Sophia, which he bought, in damaged condition, for $1000. Petitioner has paid $162.50 every two weeks, so as to shorten the period required to pay the restitution. He also returned to the stores the stolen merchandise still in his possession. On October 2, 1996, Petitioner completed a State of Florida employment application and submitted it to Respondent for possible employment at Respondent's Pinellas Regional Juvenile Detention Center (JDC). In response to a written question asking if the applicant has ever pleaded no contest or guilty to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and explained: "I used a credit card belonging to another" in Tampa. In response to a written question asking if the applicant has ever had adjudication withheld to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and noted: "same as above." Respondent conducted the standard criminal screenings of job applicants, and nothing was uncovered, perhaps due to the fact that the offenses were relatively recent. Respondent offered Petitioner an Other Personnel Services (OPS) position, essentially as a detention care worker responsible for maintaining order in the JDC. Petitioner began working in November 1996. When a career service Detention Care Worker I position became available, Petitioner decided to seek the position, which imposed the same requirements as the job he was performing, but offered better benefits. Petitioner completed another State of Florida employment application, dated November 2, 1997, and submitted it to Respondent. He answered the above-cited questions in the identical way as he did 13 months earlier. This time, Petitioner also submitted a signed affidavit of good moral character. He indicated that he was not guilty of any of 30 cited statutory offenses, including "812 relating to theft, robbery and related crimes, if the offense was a felony." Performing another criminal screening, Respondent received information concerning the above-described arrests and probation. By letter dated February 18, 1999, Respondent informed Petitioner that he was no longer eligible for employment in a position of special trust or responsibility, such as his current position with Respondent. He was therefore to be terminated from his position immediately. Petitioner sought an exemption from disqualification. A committee of Respondent's employees at the JDC conducted a hearing and entered a recommendation on April 26, 1999, that Respondent grant an exemption. In part, the recommendation reasoned: [Petitioner] has been honest and forthright about his record since his first point of contact with our agency. . . . His record with us is unblemished and is highly recommended by his peers and his supervisors. [Respondent] has complied with his probation order up to this point. He has completed 200 service hours and has not missed a restitution payment. He is working two jobs in order to pay back the restitution sooner. . . . The delay between the adverse criminal screening and the letter terminating Petitioner's employment is partly attributed to a series of disqualification waivers that Petitioner received from Respondent's JDC employees. These waivers appear to have been for nonwaivable offenses and, except for their small value as evidence of Petitioner's value as an employee of Respondent at the JDC, they are not relevant and, in particular, do not establish an exemption by estoppel. In any event, Respondent's Inspector General overturned the recommendation and denied the request for an exemption. Any delay in the issuance of his ruling was immaterial and, again, does not provide the basis for some form of exemption by estoppel or default. However, the fact remains that Petitioner was a model employee at the JDC. He worked effectively with the juveniles incarcerated at the JDC and with his coworkers and supervisors. He was conscientious, dependable, loyal, competent, and professional in all of his dealings and even voluntarily assisted a coworker with her troubled son. When dealing with the juveniles, he always insisted upon compliance with the rules, but, whenever possible, exhibited kind-heartedness. While working at the JDC, Petitioner earned the trust and respect of all of those around him and never displayed bad moral character. The evidence provided by Petitioner's coworkers, supervisors, and friends also tend to establish his rehabilitation. Petitioner's probation officer testified that Petitioner is very compliant and cooperative. At the time of the hearing, he had completed all of his community service except for 1.5 hours, which may have arisen due to an accounting error. Petitioner has maintained fulltime employment and passed all drug screens, as required by the conditions of his probation. He has renewed his religious practices and is now active at his church. At the time of the hearing, Petitioner still owed $13,005.15 in restitution. Except for the fact that restitution is not complete, the probation officer testified that she would recommend termination of probation; she explained that she cannot recommend termination of probation as long as any conditions remain outstanding. Respondent's primary contention in support of denying the request for probation is that Petitioner has not completed his probation. Respondent argues that the completion of probation is a necessary precondition to rehabilitation. In determining whether a person seeking an exemption has completed rehabilitation, it is important to assess the extent of his compliance with the conditions of his probation. Obviously, the successful completion of probation is evidence of rehabilitation, and, if supported by the other evidence, the successful completion of probation may be an important factor in determining that a person has rehabilitated himself. On the other hand, the failure to complete probation does not necessarily preclude a determination of rehabilitation. All of the circumstances must be considered in determining whether a person has rehabilitated himself. The failing in predicating the rehabilitation determination on the successful completion of probation is revealed in comparing Petitioner's case with a hypothetical case of another detention care worker, who, but for three facts, is identically situated with Petitioner. The first distinguishing fact is that, after reducing the restitution to $13,000, the hypothetical detention care worker wins the lottery or receives a large inheritance. The second distinguishing fact is that, after receiving the proceeds, the hypothetical detention care worker pays off the remainder of his restitution. The third distinguishing fact is that his probation is then terminated. In the absent of statutory or regulatory authority, the rehabilitation determination cannot be governed by the continuation of probation, when probation likely has not been terminated due merely to the ongoing liability for restitution, without introducing an arbitrary element into the rehabilitation determination. In the present case, Petitioner is working two jobs and is shortening the period of repayment as much as he can; this is exactly what would be expected of the hypothetical detention care worker who enjoys a windfall, and this is all that we can expect, given other evidence of rehabilitation, of Petitioner. More generally, the record does not offer much detail as to the identity of the victims or the extent of the injury caused, except that it was obviously about $17,000. The circumstances surrounding the crimes are not particularly telling. Charging a camcorder and auto accessories does not conjure images of Jean Valjean stealing a loaf of bread to eat. On the other hand, five years have passed since the crimes, and, during that time, Petitioner has conducted himself in an exemplary fashion. Unusual in exemption cases is the fact that Petitioner has had an opportunity to demonstrate, following disqualifying crimes, his good moral character while performing the work for which he now seeks the exemption. Candidly disclosing his crimes, Petitioner, due to the failure of Respondent's personnel to follow up on the disclosures in the application and the failure of the criminal screening process, was able to obtain employment as a detention care worker. Later, seeking to gain the benefits of a career service position, Petitioner again disclosed his criminal background. Although it is true that he should have disclosed the grand theft on the affidavit filed at this time, his failure to do so is not indicative of an attempt to conceal. He had, again, revealed the credit card crimes on the application that he was filing for this career service position, as he had revealed the credit card crimes on his first application. It is illogical that he would try to conceal one count of grand theft while disclosing three counts of credit card fraud. More likely, as revealed by the two applications, he had reduced in his mind the various crimes to their most salient characteristic: credit card theft. His failure to detect the specific language in the affidavit requiring disclosure of the felony theft offense is reflective of Petitioner's linguistic skill, not his honesty. Petitioner has proved by clear and convincing evidence that he has rehabilitated himself and is of good moral character to justify the issuance of the exemption.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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, 2000. COPIES FURNISHED: William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Manny Anon, Jr., Deputy General Counsel AFSCME Florida Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Lynne T. Winston, Attorney Chief of Investigations Office of Inspector General 2737 Centerview Drive, Suite 300 Tallahassee, Florida 32399-3100
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
