The Issue The primary issue for determination is whether Dr. Jones violated provisions of Chapter 458, F.S. by violating terms of his probation, more specifically, those terms requiring attendance at Grand Rounds and monitoring by a local, Board certified pediatrician. If those violations occurred, an appropriate disciplinary action must be determined.
Findings Of Fact Respondent, Dr. Jones, is now, and has been at all relevant periods, a licensed physician in the State of Florida, having been issued license number ME0017104. His practice is located in Seminole, Florida. On April 21, 1986, a Final Order was entered by the Board of Medical Examiners, resolving by an amended stipulation, a twenty-count Administrative Complaint that had been filed against Dr. Jones on December 1, 1983. Pertinent provisions of the Final order included: Placement on probation for a period of five years commencing with the effective date of the order; Attendance at Grand Rounds weekly during probation at both All Children's Hospital in St. Petersburg, Florida and the University of South Florida in Tampa, Florida; and, Monitoring by a local Board-certified pediatrician, John H. Cordes, Jr., M.D., who was to make visits to Dr. Jones' office every two weeks and to randomly select 15 percent of Dr. Jones' medical charts to verify appropriateness of care and thoroughness of record-keeping. Dr. Jones was out of the country, in Antigua, when the order arrived, and it was in his office when he returned on May 4, 1986. Approximately two weeks later, around May 19th, Dr. Jones tried to call Dr. Cordes, the designated monitoring physician, and was told he was out of town. When he reached Dr. Cordes in early June, Dr. Cordes told him that under no circumstances would he serve as his monitoring physician and that he had written a letter to DPR advising them of such. After making some unspecified and unsuccessful efforts to locate a substitute, Dr. Jones contacted Lewis A. Barness, M.D., Chairman of the Department of Pediatrics at the University of South Florida. In a letter to Dr. Jones dated July 11, 1986, Dr. Barness agreed to review "about ten or fifteen percent of your charts on a biweekly basis." (Petitioner's exhibit #4) Dr. Jones was out of the country again the last two weeks of July, and the monitoring by Dr. Barness began on August 15, 1986. Dr. Barness was approved by the Board of Medical Examiners as a substitute on August 2, 1986. Dr. Jones continues to be monitored by Dr. Barness at Dr. Barness' office at the University. Dr. Jones brings his appointment book (although Dr. Barness never reviews it) and his charts, and Dr. Barness pulls, at random, fifteen to twenty percent of the charts and reviews them. Grand Rounds, lectures on pediatric medical topics, are held at 8:00 A.M. on Fridays at the University of South Florida Medical Center, and at 12:30 P.M. on Fridays at All Children's Hospital. Between his receipt of the Final Order and June 15, 1986, (the date specified in the amended complaint) Dr. Jones never attended Grand Rounds at the University of South Florida. He attended once, June 6th, during this period at All Children's Hospital. The basis for non-attendance is specified for each Friday session during the relevant period as follows: May 9, 1986 (the first Friday after Dr. Jones returned and saw the Final Order)--Dr. Jones' van was broken. His wife, a part-time employee at an interior design shop, was called in for work that day, so he did not have transportation. Further, he met with the mother of one of his patients at noon on this date. May 16 and 23, 1986--Dr. Jones' recently-widowed mother was visiting, and since she was also quite ill, he spent time with her. Further, Grand Rounds were cancelled at the University of South Florida on May 16th. May 30, 1986--Dr. Jones' van was again broken and his wife was called to work leaving him without transportation. June 6, 1986--Dr. Jones awoke with gastroenteritis, so he did not attend the morning session at the University of South Florida; he did attend the session at All Children's Hospital. June 13, 1986--Grand Rounds were cancelled at the University of South Florida on this date. Dr. Jones decided to take his children to Disney World as they lived out of state and were leaving the next day. June 15, 1986 was the close of the relevant period regarding attendance at Grand Rounds, according to the Administrative Complaint, as amended. From the testimony and evidence, I am unable to determine conclusively whether Dr. Jones has attended regularly since that date. Except for weekends and the trips out of country, Dr. Jones continued to practice medicine as a pediatrician between April 21, 1986 and July 1986, the date of the Administrative Complaint. He stipulated that he understood the terms and conditions of the Board's Order regarding probation. His testimony at the hearing revealed that he was thoroughly familiar with the details of the order. Nevertheless, he violated the terms of probation. Although he knew that the Board had approved the Stipulation in January 1986, and that the stipulation specified Dr. Cordes as the monitoring physician, he waited until the last minute (two weeks after he received the order) to contact Dr. Cordes about commencing the monitoring. While Dr. Cordes' refusal to participate is not attributable to Dr. Jones, the delay in obtaining a substitute could clearly have been eliminated with better planning by Dr. Jones. Technically, the monitoring conducted by Dr. Barness does not comply with the terms of the probation order, as Dr. Jones brings the charts to him for review. Dr. Barness has impressive credentials and is understandably unable to visit Dr. Jones' office every two weeks. However, Dr. Jones admitted that he never asked the Board to modify the terms of his probation in that regard. Dr. Jones' lack of judgment regarding the terms of probation is also reflected in his uncontroverted excuses for non-attendance at Grand Rounds. With the obvious exception of the cancellation of the lectures, the excuses fail to mitigate the violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: Finding that Respondent, Archbold M. Jones, M.D. violated subsections 458.331(1)(h) and (x) F.S.. Suspending Dr. Jones' license for three months (conforming to the approximate period that he practiced without supervision). Requiring Dr. Jones to appear before the Board with Dr. Barness to outline the details of the monitoring process and insure that proper review can be made at Dr. Barness' office, rather than Dr. Jones' office. Providing for Dr. Jones' immediate notification to the Board in the event Dr. Barness is unable to continue with monitoring consistent with the Board's direction. Outlining specific guidelines for excused non-attendance at Grand Rounds and providing for notification by Dr. Jones to the Board each time he fails to attend, and the reason for such failure. Providing that future violations will result in nullification of the stipulation and immediate proceeding on the original multi-count complaint. Providing that all other terms and conditions of the April 21, 1986 Order remain in full force and effect. DONE and RECOMMENDED this 6th day of July, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3920 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. Adopted in paragraph #1. 2. Rejected as unnecessary. 3. Adopted in substance in paragraph #2. 4. Rejected as unnecessary. 5-6. Adopted in substance in paragraph #2. 7-8. Adopted in paragraph #7. 9. Adopted in substance in paragraph #4. 10-11. Adopted in paragraph #9. Respondent's Proposed Findings of Fact 1. Adopted in paragraph #1. 2-3. Adopted in substance in paragraph #2. The closing date is addressed in paragraph #7, however the June 15, 1986, date relates only to attendance at Grand Rounds and not to the period during which monitoring did not occur. (See motions to amend complaint.) Adopted in paragraph #3. Adopted in paragraph #6. 7-15. Adopted in substance in paragraph #7. However, the characterization of a "medical emergency" in paragraph #9 is unsupported by the record, as are the characterizations, "justification" for not attending Grand Rounds and "legitimately prevented" from attendance. Respondent was not unable to attend Ground Rounds, except when the rounds were cancelled. He chose rather not to attend for various reasons which to him were more important than his attendance. Adopted in paragraph #4. Adopted in paragraph #5, except however the "diligence" of the search was not established by competent credible evidence. Adopted in substance in paragraph #5. 19-27. Rejected as irrelevant and unnecessary. Rejected as unsupported by competent, substantial evidence. Rejected as immaterial. Rejected as contrary to the weight of the evidence. Adopted in paragraph 9. Rejected as cumulative and unnecessary. The "diligence" is unsupported by competent credible evidence. Rejected as immaterial. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael I. Schwartz, Esquire Suite 100, Capitol Office Center 119 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: On January 2, 1977, Officer J.W. Carlyle of the Jacksonville Beach Police Department, Jacksonville Beach, Florida, acting in an undercover capacity, purchased from the licensee for $10.00, six capsules of what the licensee represented to him to be mescaline, which was in fact liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time the licensee threw to the ground, a vial containing six foil packets which upon analysis proved to be phenoharbitol, a controlled substance. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: Licensee was charged with felony of possession of a controlled substance, to wit: phenobarbital, in Case No. 77-249 CFS in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication was withheld and she was placed on probation for a period of two years, with a special condition that she enroll and follow through with a drug treatment program, in- patient if necessary. There were several other substantive violations found in the Administrative Complaint, specifically in paragraphs 1, 2 and 5 of that complaint. These substantive paragraphs were withdrawn from consideration upon the Motion to Withdraw by the Petitioner's attorney and the agreement of the Respondent's attorney.
Findings Of Fact Theresa Kathleen Stewart, R.N., holds License No. 73310-2, with the State of Florida, Board of Nursing. In the course of the hearing, the following factual stipulation was entered into between the parties: On January 2, 1977, Officer J. W. Carlyle of the Jacksonville Beach Police Department, acting in an undercover capacity, purchased from the licensee for $10.00 six capsules of what the licensee represented to be mescaline. In fact, the substance was liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time, (January 2, 1977), the licensee threw to the ground the vial containing six foil packets which upon analysis proved to be phenobarbital, a controlled substance. The charges brought from the arrest for the possession and sale of the alleged mescaline were dropped when the chemical analysis of the substances proved them to be liver pills and/or vitamins. Out of the events of January 2, 1977, the licensee was charged with a felony of possession of a controlled substance, to wit: phenobarbital, in Case NO. 77-249 CFS, in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication of guilt was withheld and she was placed on probation for a period of two years with a special condition that she enroll and follow through with a drug treatment program, in-patient if necessary. Based upon the facts recited, the Petitioner claims that the Respondent has violated 464.21(1)(b)(c) and (d), F.S. which states: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (b) Unprofessional conduct which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding, actual injury need not be established." An examination of the facts stipulated to as the basis for consideration of this case, do not constitute a sufficient showing that the Respondent has been guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S. The second substantive violation alleged by the Petitioner pertains to 464.21(1)(c), F.S., which reads as follows: "GROUNDS FOR DISCIPLINE.-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (c) Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893." Again, an analysis of the facts presented did not warrant the conclusion that the Respondent is guilty of habitual intemperance or addiction to the use of controlled substances found in 893, F.S. The third substantive violation asserted by the Petitioner pertains to 464.21(1)(d), F.S., whose provisions are: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (d) Engaging in the possession, sale or distribution of controlled substances as set forth in chapter 893, [for any other than legitimate purposes]." The facts agreed to in this cause establish that the Respondent was in possession of a controlled substance as set forth in 893, F.S., for other than legitimate purposes. Therefore, the licensee is held accountable for the penalties which may be imposed from such possession.
Recommendation At the conclusion of the factual stipulation, the parties were given an opportunity to present matters in aggravation and mitigation. Counsel for the Petitioner waived the opportunity to submit matters in aggravation. The Respondent presented mitigation. Some of the items of mitigation may be found in the Respondent's Exhibits 1 through 3 admitted into evidence. Exhibit 1 is a letter from a counselor with the Peninsula Manpower Training Skills Center in Hampton, Virginia. This letter states that the Respondent is enrolled in a horticulture class at the Vocational Technical Education Center of Hampton, Virginia, and is maintaining excellent grades and attendance standards. It also states that Respondent is working part-time at a local florist. The second Respondent's exhibit is a letter from the Commonwealth of Virginia, Department of Corrections, Division of Probation and Parole Service, District 19. This is a letter from the Probation/Parole Officer, Drug/Alcohol Specialist, who states that the Respondent is doing well in her probation period. The final Exhibit No. 3, by Respondent, is a letter from a Rehabilitation Counselor with the Drug Rehabilitation Program of the City of Hampton, Virginia, which shows that Respondent is progressing well in the drug rehabilitation program. Respondent at present lives with her husband and eighteen months old child. It is the Respondent's desire that she be given probation for the offense, in order to allow her a clean record, should she apply for a license to be a registered nurse in the State of Virginia. It is her intention to make such application if possible. After considering the nature of the factual stipulation and the matters offered in mitigation, it is recommended that the license of Respondent to practice nursing in the State of Florida be suspended for a period of two years. DONE and ENTERED this 25th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Herbert V. Kelly, Jr., Esquire 2600 Washington Avenue First and Merchants National Bank Building Post Office Box 78 Newport News, Virginia 23607 Ms. Theresa Kathleen Stewart 5927 Madison Avenue Newport News, Virginia 23605 William Travis, Esquire 4611 Pinewood Road Jacksonville, Florida 32210
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
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 as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in the case is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact 1. Petitioner is 32 years old, unmarried, and a 1992 graduate of Auburn University with a degree in business administration. He attended college on a athletic scholarship and was a captain of the football team. 2. Since graduation he has worked extensively with teenagers as a youth development professional with Boys and Girls Club of Central Plorida, as a recreational leader with Orange County Parks and Recreation; as a substitute teacher at Maynard Evans High School, where he worked with physically impaired students; and as a night monitor at The Center for Drug Free Living. 3. On November 27, 2000, Petitioner submitted an Employment Application with the Department of Juvenile Justice seeking the position of Juvenile Probation Officer. 4. As a part of the November 27, 2000, Employment Application, Petitioner indicated that he had not been convicted, pled nolo contendere, or had adjudication withheld on a crime which is a felony or first-degree misdemeanor. 5. On October 30, 2000, Petitioner executed an Affidavit of Good Moral Conduct which states, in part, "I have not committed an act which constitutes domestic violence .. ." 6. As a result of background screening, it was determined that on a January 14, 1990, Petitioner was charged with "Assault 3rd" in Auburn, Alabama, as a result of a meleé involving members of a fraternity and the football team. On February 19, 1990, the charge was dismissed. 7. The background screening also revealed that on November 11, 1995, Petitioner was charged with Battery (Domestic Violence); was arrested on November 29, 1996 (over a year later) for the offense; and had adjudication withheld after a plea of nolo contendere to the offense on February 5, 1997. 8. On February 5, 1997, Petitioner was sentenced to supervised probation for 363 days, required to attend a batterer's intervention program, and charged $115 in court costs. He successfully completed probation. 9. On December 16, 2000, Petitioner wrote the IG stating: This letter is to clarify why I failed to indicate the offenses on the notarized Affidavit of Good Moral Character. I did not indicate the offenses because I thought you are only supposed to write down convictions of a felony or first-degree misdemeanor. I did not know pleading no contest was counted as guilty. Therefore, I thought the circumstances did not fit my offenses. I conversed with a Department of Juvenile Justice employee when applying for the position, and they [sic] informed me that the Department was only looking for felony convictions. They said a misdemeanor arrest will not disqualify me. This is the reason why I failed to indicate the offenses. 10. On January 11, 2001, Petitioner wrote the IG stating: This letter is to clarify the incident that happened on the evening of November 11, 1995 at Heroes Night Club, Orlando, Florida. This incident was between a Ms. Monica Pryor and myself. At the time Ms. Pryor and I were dating. At the nightclub, Ms. Pryor and I got into an argument and exchanged harsh words that resulted in us pushing and shoving one another. Ms. Pryor then left the nightclub with her girlfriends. She called my cell phone to inform me that her girlfriends were taking her to the police station. We talked later that evening and apologized to each other. During the conversation, she let me know that she had filed charges against me and there was a warrant out for my arrest and would drop the charges in the morning. As far as I can recall from our conversation, Ms. Pryor didn't suffer any physical bruising from this incident. This is one incident in my life that I deeply regret. I feel that I was in the wrong place at the wrong time, doing the wrong thing. This incident happened over 5 years ago. Since then, I have experienced healthy relationships without any hostile contact involved. I have been blessed to counsel several young people and I've helped young men from making the same mistake that I made. I believe this experience has made me a better person and has given me a testimony to share with others. In the past 7.5 years, I have worked in child development, education and recreation. I have worked with the Boys and Girls Club of Central Florida, Center for Drug Free Living, Orange County Parks and Recreation, and I am presently employed with Orange County Public Schools. I ama member of the New Church of Faith in Orlando, Florida were I've helped with youth banquets and church activities. If you have any questions about my spiritual leadership and commitment, please call Pastor David Beacham at (407) 296-2664. 11. Petitioner testified that even though Ms. Pryor had told him that she would "drop the charges," he elected to plea nolo contendere just to get the matter behind him. 12. On January 19, 2001, Petitioner submitted a second affidavit of Good Moral Character indicating that his record contained "one or more of the disqualifying acts or offenses .," and circled the reference to the domestic violence statute. 13. Ken Davis, of Maynard Evans High School in Orlando, Florida, submitted a letter which observed that Petitioner was a "diligent and conscientious person." 14. Yvette Johnson, Universal Orlando, an occupational health and safety specialist, submitted a letter in which she characterized Petitioner as an "asset to the troubled youth in the community . . . never failing to instill the values desired by the church." 15. Ruthenia Moses, who has a Master's Degree in Social Work from the University of Connecticut, who has worked as a clinical therapist, and who was, at one time, the second in command of the Orange County Work Release Center, testified that Petitioner has "an amazing ability to relate to young people," was a "kind and sincere individual of good moral character. I highly recommend him to anyone who works with young people." She further testified that "if I had a business serving youth at risk I would want Petitioner on her team." 16. Christine Barbery, who has a Master's Degree in Legal Studies from the University of Central Florida and is employed by Florida Department of Children & Families as a Family Services Counselor Supervisor, reports that Petitioner is "responsible, hard-working," "setting an admirable example," "an excellent candidate for a Juvenile Probation Officer-type position." She worked for the Department of Juvenile Justice from 1995-1997 and Department of Children and Families since 1997. She has worked with Petitioner with young people at Maynard Evans High School and finds him "caring and dedicated." She "has no qualms about Petitioner's qualifications to be a probation officer." 17. Gloria P. Cleary, Recreation Specialist, Orange County Parks and Recreation, in a letter, characterized Petitioner as a "very enthusiastic and responsible person." She had observed Petitioner in his role as a recreational leader at Liberty Middle School. She further indicated that she would not hesitate in hiring Petitioner in the future. 18. Petitioner was guilelessly candid in his testimony. He is remorseful and contrite regarding the 1995 domestic violence incident. He has conducted his life since that incident in such a way that rehabilitation is indubitably demonstrated. He has an obvious desire to work with troubled teenagers as a Juvenile Probation Officer.
Conclusions For Petitioner: Charles Brown, pro se 7251 Minippi Drive Orlando, Florida 32818 For Respondent: Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
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 “Ir day of June, 2001, in Tallahassee, Leon County, Florida. lec 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 10 Filed with the Clerk of the Division of Administrative Hearings this XI day of June, 2001. COPIES FURNISHED: Charles Brown 7251 Minippi Drive Orlando, Florida 32818 Lynne T. Winston, Esquire Department of Juvenile Justice 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 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact The initial Petition for Administrative Hearing was filed on September 12, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 33-3.00125, Florida Administrative Code, and I.O.P. #P2-89.10 were challenged. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates. . . ." The I.O.P. apparently deals with the same general subject as the Challenged Rule. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following: 4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original]. This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner: 24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original]. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions. 9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.
The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of August, 2018.
The Issue The issue in this case is whether Respondent's temporary directive, which requires probation officers to request and obtain supervisor approval on a case-by-case basis before incurring travel expenses for certain field visits, meets the definition of a "rule" in section 120.52(16), Florida Statutes (2011),1/ which should have been promulgated as such.
Findings Of Fact Respondent is the state agency with "supervisory and protective care, custody, and control of the inmates, buildings, grounds, and property, and all other matters pertaining to [specified correctional facilities and programs] for the imprisonment, correction, and rehabilitation of adult offenders[.]" § 945.025(1), Fla. Stat. (setting forth Respondent's jurisdiction). By far, Respondent's resources, including personnel, are primarily devoted to Respondent's responsibilities over correctional facilities and programs. There are approximately 17,000 certified officers on the correctional institution side. Respondent also is the state agency responsible for supervising offenders who are granted conditional release from incarceration or who are granted parole by the Parole Commission (chapter 947, Florida Statutes), as well as the state agency responsible for supervising probationers placed on probation (or in community control, known commonly as house arrest) by a court (chapter 948, Florida Statutes). Collectively, persons who have been conditionally released, parolees, and probationers will be referred to as "offenders." A relatively small percentage of Respondent's resources, including personnel, are devoted to the supervision of offenders. There are approximately 2,100 certified parole and probation officers providing community supervision. Organizationally, Respondent's supervisory functions fall under the umbrella of Community Corrections. The supervision of offenders statewide is divided into a northern and southern region, each covering ten of the state's 20 judicial circuits. Each region is headed by a regional director, who oversees the supervision of offenders within the region's ten judicial circuits. Each of the 20 judicial circuits has a circuit administrator. Each circuit also used to have a deputy circuit administrator, but that position was eliminated in 2009. Reporting to the circuit administrators are probation supervisors, who supervise and coordinate the activities of individual probation officers and probation officer specialists. Offenders are assigned to certified probation officers and probation officer specialists, who directly carry out the supervisory functions. See § 948.01(1)(a), Fla. Stat. (an offender on probation or community control is to be supervised by an officer meeting the qualifications in section 943.13, Fla. Stat.). A probation officer specialist is a probation officer with a certain level of experience to whom the offenders with the most serious criminal records are assigned. Unless otherwise specified, the term probation officer will be used, in the broad sense, to include both probation officers and the more experienced probation officer specialists. In carrying out its community supervisory functions, Respondent's goals are all of the following: to ensure compliance with the conditions of supervision imposed by the court or by the Parole Commission; to ensure public safety; to foster rehabilitation of the offender; and to reduce or eliminate future victimization. Probationers may be placed on probation, in lieu of incarceration, or as part of a split sentence that includes incarceration followed by probation. §§ 948.011 and 948.012. The starting place for supervision of a probationer is the court's order of supervision, which specifies the terms and conditions of probation. Respondent is charged with preparing a form order of supervision for the courts to use. § 948.01(1)(b). The form order prepared by Respondent and used by the courts reflects the standard conditions of probation which may be imposed by the courts, enumerated in section 948.03. The form order also provides options for the court to exercise its authority and discretion to impose special terms and conditions. See, e.g., §§ 948.031 through 948.039. The standard conditions of probation that may be imposed by a court in its order of supervision are broadly worded and general in nature and include the following: Report to the probation and parole supervisors as directed. Permit such supervisors to visit him in his or her home or elsewhere. Work faithfully at suitable employment insofar as possible. Remain within a specified place. Live without violating the law. The statutes and standard terms of probation do not dictate or specify how, precisely, Respondent is to carry out its supervisory function in monitoring offenders to serve the goal of ensuring compliance with these terms. The concept of "supervision" is not quantified, such as by specifying how often an offender must report to his or her probation officer or whether and how often probation officers may or will visit an offender in his or her home or elsewhere. A court's order of supervision could theoretically provide a condition specifying that a probationer must go to his or her probation officer's office twice a month or five times a month. However, the one sample order of supervision entered in evidence in this case did not impose any such terms quantifying the number of office visits or other visits that the unidentified probationer had to make with his or her probation officer. With respect to "supervision," section 948.12 provides a distinction for violent offenders who are on probation following incarceration by providing that these offenders "shall be provided intensive supervision by experienced probation officers." However, just as the statutes do not purport to specify or quantify what is meant by "supervision," there is no statutory specification for what is meant by "intensive supervision." Respondent has had, apparently as far back as 2002, internal procedures in place to provide detailed processes for probation officers to follow in carrying out their duty to supervise offenders assigned to them. These procedures are published in a 41-page document called Procedure 302.303, which Respondent considers a "restricted access" document for internal use only. One subject addressed in Procedure 302.303 is an offender classification system. The current classification system was designed in-house and then validated by the Florida State University School of Criminology. The system considers a number of variables and is used by Respondent as a way to group offenders in an effort to ensure that supervision is provided at a level commensurate with the danger or risk the offender represents to the community. This offender classification system, which is not promulgated as a rule, is not the subject of Petitioner's challenge. Procedure 302.303 also addresses the subject of contacts expected to be made by a probation officer with individual offenders assigned to the officer. In general terms, Procedure 302.303 specifies minimum contacts, by type and frequency, that probation officers are expected to make, or try to make, for each of their assigned offenders. The types of contacts include office visits, meaning the offender comes into the probation officer's office for a meeting; other kinds of visits, scheduled or unscheduled, when the probation officer travels outside the office to visit or attempt to visit the offender in his home, in his place of employment, or another place; and field visits with third parties, when the probation officer travels outside the office to visit or attempt to visit the offender's employer, treatment providers, family, neighbors, or other third persons who might have information about the offender. Different minimum contact requirements, by type and frequency, are provided for each of the different offender risk classification categories in Procedure 302.303. The minimum contact standards are performance standards that apply to probation officers; without the minimum contact requirements, some probation officers might do less than the minimum. These minimum contact standards, which have not been promulgated as a rule, are also not the subject of Petitioner's challenge. Instead, Petitioner's challenge is directed to a recent temporary directive by Respondent that suspended some aspects of the (unpromulgated) minimum contact standards in Procedure 302.303. In lieu of these minimum contact standards, Respondent's directive provides that probation officers need to request and receive permission of their supervisors on a case-by- case basis to incur travel expenses for certain field visits. As a related part of the directive, supervisors are given discretion to approve travel expenses for any field visit if there is reason to believe there may be a violation of a condition of supervision or if there is reason to believe that there is a threat to public safety. The challenged directives were first communicated verbally on February 29, 2012, in a telephone conference call between Jenny Nimer, assistant secretary of Community Corrections, and the Community Corrections regional directors, and then reduced to writing in the following memorandum dated March 2, 2012, on the subject of "Reduced Travel" (Reduced Travel Memo) from Assistant Secretary Nimer to Community Corrections regional directors and circuit administrators: On 2/29/12 directives were provided for adjustments to be made on some non-critical supervision activities. As these directives are temporary and related to "restricted" policy areas they were given verbally; existing written policy will not be changed. Our goal is to reduce the travel budget by focusing on mission critical activities without compromising public safety. Travel related to core operational duties will continue; however all travel will be reviewed for efficiency. NO adjustments have been made to travel that involves investigation of known or suspected violations, violation proceedings/subpoenas, investigations or instruction of offenders in correctional facilities. Adjustments are focused on reduction of department established minimum contact standards and administrative duties. There is an urgent need to reduce travel costs for the remainder of the fiscal year; however public safety is the utmost priority and supervisors maintain the discretion to approve any travel that is needed to accomplish officer safety and protection of the community. For the months that adjustments are in place (March, April, May and June) officers will annotate electronic field notes for offenders requiring field contacts during the month, as follows: CN--"Contact Standards Adjusted". Alternative methods to verify (and re-verify) residence and employment during this period, including making telephone calls to the landlord and employer or instructing the offender to provide bills and paychecks to show proof of residence and employment will be utilized. Contact codes for purposes of electronic case notes for residence and employment verification will be HV, EN, or EV and text should indicate the alternative method utilized for verification. Planned Compliance Initiatives will continue; partnerships established with local law enforcement remain essential to enhance surveillance and contacts made in the community. These contacts should always be documented in case notes. Circuit Administrators are directed to reach out to judiciary, state attorney and law enforcement to ensure that they are aware of the limited scope of this reduction and that contacts required to ensure offender supervision and/or threats to public safety will not be compromised. Thank you for your cooperation during this difficult time. The Reduced Travel Memo was distributed to probation officers as the means by which Respondent communicated to its probation officers that they would not be expected to comply with all of the minimum contact requirements set forth in Procedure 302.303 between March 1, 2012, through the end of the fiscal year, June 30, 2012. The expectation was, at the time of the challenged statement, that this cost-saving measure was temporary and that the (unpromulgated) minimum contact requirements in Procedure 302.303 would resume as of the new fiscal year beginning July 1, 2012. As of the final hearing on June 6, 2012, Respondent's expectation was unchanged. The announced temporary replacement of minimum contact requirements based on risk category with a procedure for supervisor review and approval of field contacts remained just that--temporary--and the expectation was that the minimum contact standards set forth in Procedure 302.303 would resume for the fiscal year beginning July 1, 2012. Petitioner hinted at, but offered no evidence to prove the notion that Respondent did not really intend to resume the minimum contact standards in the fiscal year beginning July 1, 2012.4/ The Reduced Travel Memo and a March 2, 2012, letter from Secretary Kenneth S. Tucker (Tucker Letter), represent the challenged agency statements in that these two documents memorialize the temporary directive.5/ As explained in the Tucker Letter: Due to a 79 million dollar deficit, the Department has had to make temporary modifications to field contact requirements in order to reduce travel expenditures by probation officers. . . . Our probation officers will continue to make field contacts with sex offenders and community control offenders in order to closely monitor sex offender conditions and/or house arrest requirements. Probation officers will continue to monitor other supervised offenders' compliance with conditions of supervision and probationers will still be required to meet monthly with their probation officer at the office. In addition, probation officers will make field contacts in the community as necessary to investigate non-compliance or possible violations. Probation officers will also continue to participate with law enforcement in Planned Compliance Initiative (PCI's) in the community. Probation officers will use this opportunity to spend more time with offenders in the office or on the telephone, assisting with job referrals or other resources and services needed. Community Corrections undertook an analysis of its budget in an effort to identify expenditures where cost savings might be realized to help reduce the budget deficit. The three significant budget categories of expenditures were salaries, leases, and expenses. There had been a hiring freeze in place for some time already, and so an effort was made to not cut personnel to save salary costs. There also had been a concerted effort to reduce lease costs by consolidating offices to eliminate some leases. The viable short-term option to cut costs for the remainder of the fiscal year was in the expense category, which was predominately travel reimbursement. It was determined that, over the year, Community Corrections was averaging between $250,000 and $300,000 per month in travel reimbursement. Some travel reimbursement had already been reduced before the temporary directive challenged here. For example, Community Corrections personnel, including probation officers, might travel to participate in training programs. However, training had already been greatly limited. Some travel reimbursement could not be reduced, such as reimbursing probation officers for necessary travel for court appearances. In these instances, efforts were made to use state cars and to encourage carpooling, if possible. Community Corrections assessed the number of field contacts and attempted contacts that were being made by probation officers to comply with Respondent's minimum contact standards and the travel reimbursement associated with them (i.e., the contacts). Respondent estimated that its temporary directive, challenged here, would reduce travel costs by $150,000 per month for each of the four months in which the directives would be in place. In total, Respondent expected to save $600,000. Respondent's actual experience following issuance of the Reduced Travel Memo and Tucker Letter shows that Respondent's estimates were on target. In February 2012--the last month before the temporary suspension of some of the minimum contact standards--travel reimbursement totaled $277,000. After switching to a procedure of case-by-case probation officer request and supervisor review to approve field visits, travel reimbursement was down to $99,000 in March 2012, a savings of $187,000, compared to February. In April 2012, travel reimbursement dropped to $80,000. The evidence established that the discretion afforded probation supervisors in the Reduced Travel Memo is true discretion vested in supervisors to review requests and act on a case-by-case basis to approve field visits. That discretion has been exercised on numerous occasions to authorize a field contact. There was no evidence of any probation officer having submitted a request to make a field visit to investigate a possible violation of a probation condition or where there was a public safety issue that was not approved by his or her supervisor. To the contrary, the evidence established that requests are being made and leeway is being provided to probation officers to travel, if they can articulate a reason for doing so. However, for one or two probation officers who do not accept that they must request approval and justify their travel expense on a case-by-case basis and who simply ask for block reinstatement of the minimum contact standards, without articulating any reason why field visits are needed for particular offenders, those requests have been denied. As the Reduced Travel Memo and Tucker Letter suggest, there are other tools available to probation officers besides incurring the expense of field visits, which are often equally effective to accomplish the goal. For example, a field visit to an offender's employer is certainly one way to verify employment and to verify the offender's attendance, but telephone calls may well suffice to obtain the same information at much lower costs. There are also other ways to attempt to verify residence besides a personal home visit. An offender can be required to present documentation, such as a utility bill, rental agreement, or pay stub showing the offender's address. An offender can be made to come in for office visits more frequently than once a month. A probation officer can telephone the offender frequently, and the voice mail message or background noise may give some reason to believe there is a need for a field visit. A probation officer can call family members and neighbors to check on an offender and to verify information. A probation officer can enlist the help of a local law enforcement officer to check on an offender. In short, for the period of Respondent's urgent need to reduce costs, probation officers have been asked to work a little harder and more creatively from their desks, while reserving travel expenses for field visits to the cases where they have some reason to think a field visit is needed. Petitioner presented the testimony of one probation officer specialist, Kimberly Schultz. As a specialist, this officer handles a case load disproportionately made up of sex offender probationers (for whom the temporary directives did not suspend minimum contact standards) and the next category down on the risk scale--maximum offenders. Officer Schultz testified that she believes that public safety is best served by the old minimum contact standards in (unpromulgated) Policy 302.303. Officer Schultz suggested, but failed to prove, that public safety is compromised by the temporary directive. Under the temporary directive, Officer Schultz has only requested approval once from her supervisor to make a field contact based on a suspicion she developed that the offender may be in violation of his probation requirements. That single request was approved. Officer Schultz did not identify any instance in which public safety was jeopardized because a field contact was not allowed. Instead, Officer Schultz spoke to the increased possibility that allowing more travel to make surprise visits to offenders' homes or places of employment would reveal suspicious behavior or incorrect information. Certainly, Officer Schultz has the experience to draw on to offer the view that, in a general sense, increased field visits would serve to increase the possibility of discovering probation violations or other issues with offenders. In an ideal situation with unlimited resources, a probation officer following every move an offender makes could well come to find that the offender is not "liv[ing} without violating the law," as required in a standard probation condition. However, such an ideal situation obviously does not exist. Instead, Respondent has taken action to manage its limited resources. The evidence did not show that Respondent's temporary directive has threatened public safety. Officer Schultz attempted to suggest that, in the single instance when she requested a field contact, she would have discovered sooner that the offender was not living where he said he was, if she had made the minimum field contacts under Procedure 302.303. Her testimony did not bear that out. Officer Schultz testified that an offender assigned to her in March 2012, came in for the required office visits in March and in April, and he filled out the required monthly reports giving his address, telephone number, and other contact information. When the offender came in for his May office visit, the offender was supposed to stay for a drug test, but he left. Officer Schultz tried to call the offender at the number he had provided to check to see if he had misunderstood. That is when she learned that the phone number the offender had given her "wasn't a good number." Officer Schultz requested and was given approval to incur travel to investigate and learned, then, that the offender was not living where he said he was. While Officer Schultz contends that, in the above example, a field visit to verify the offender's address would have identified the problem sooner, Officer Schultz admitted that she had not previously tried to call the offender. Indeed, she said that she never calls her offenders on their cell phones. Thus, instead of incurring travel expense for a field visit, Officer Schultz could have attempted to verify the offender's office report immediately in March through other ways, such as calling the phone number provided and learning much sooner that the offender had provided a phone number that was not good. Officer Schultz might have checked for a home phone number associated with the address the offender gave; she learned when she went there that the offender's cousin lived there, and the cousin volunteered that the offender did not live there. Officer Schultz could have required this offender, and could require all of her offenders, to come into the office multiple times per month. She could have required this offender to bring in a utility bill for his residence, whether in his name or someone else's name. Had Officer Schultz tried alternative verification means, she may have been able to contact the cousin sooner. It was evident from Officer Schultz' testimony that she has become accustomed to operating under the guidance provided in unpromulgated Procedure 302.303 and does not like being asked temporarily to work harder and more creatively from her office to find other ways to conduct surveillance and monitor offenders that do not cost Respondent as much in travel expenses as her travel in the field used to. It seemed that rather than trying to replace the field visit time with alternative investigation techniques, Officer Schultz has done little to fill the gap with constructive methods to monitor her offenders using alternative means. Indeed, when Officer Schultz was asked how she was making use of her new-found office time since she is spending less time in the field, her first response was, "I'm organizing my closed files." Officer Schultz expressed concern that a probation officer could be subject to discipline if he or she were to not follow the temporary directive. However, there was no evidence that any probation officer had refused to request supervisor review and approval for a field visit, much less that discipline resulted. Officer Shultz did not represent that she had refused to follow the temporary directive or that she intended to in the few weeks remaining in the fiscal year. Petitioner's representative testified that the temporary directive harms its 2,100 certified probation officer members, although the directive does not apply to the other approximately 17,000 certified members who serve on the correctional institution side of Respondent. Thus, the temporary directive applies to only about 12 percent of Petitioner's members. Nonetheless, Petitioner's representative asserted that its members are affected by the temporary directive because they are all members of communities with a concern for public safety.
