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
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director 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
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue Whether Union Correctional Institution Operating Procedure No. 81-6, concerning inmate canteen coupon books, is an "unpromulgated rule" within the meaning of Section 120.52(15), Florida Statutes, rendering it an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioners are prisoners Incarcerated at Union Correctional Institution, a prison operated by the Department the agency responsible for the state prison system. The parties stipulated that petitioners are Substantially affected by the challenged Union Correctional Institution Operating Procedure No. 81-6. Petitioners, who initially challenged several operating procedures and directives, have confined their attack to Union Correctional Institution Operating Procedure No. 81-6. This Operating Procedure, issued February 16, 1962, and revised October 2, 1981, Is titled "Inmate Canteen Coupon Books" and issued over the signature of the Superintendent of Union Correctional Institution. As authority for its issuance, two policy and procedural directives are referenced, neither of which is in evidence. The stated purpose of this Operating Procedure is: To establish the approved medium of exchange for inmates assigned to Union Correctional Institution; To establish procedures for obtaining coupon books for use in the Canteen System; To place responsibility for distributing and accounting for Canteen coupons; To place limitations upon inmates use of coupon books; To establish procedures for redemption of coupon books; and To identify disciplinary action relative to misuse of coupon books. (Petitioners' Exhibit No. 1) Paragraph 81-6.3A expresses the main policy of the Operating Procedure: A. Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband. (Petitioners' Exhibit No. 1) This Operating Procedure announces and purports to set Department policy for Union Correctional Institution. Canteen coupon books are declared to be the only approved medium of exchange for inmates. Currency, coins or other negotiable instruments in the possession of inmates are declared contraband. All currency, coins or negotiable instruments are removed from new inmates and credited to their individual trust accounts. Thereafter, inmates may draw up to $20.00 per week from their trust accounts, but only in the form of coupon books. Coupons may be redeemed in the canteen system but loose coupons will not be accepted. Inmates may not possess more than $25.00 worth of coupons--any excess is declared contraband. This Operating procedure also includes details regarding coupon books, coupon distribution, and coupon redemption. Finally, inmates are warned that failure to comply with the Operating Procedure may constitute a violation of institutional rules for which, presumably, sanctions may be imposed. (Petitioners' Exhibit No. 1) This written Operating Procedure applies to all inmates at Union Correctional Institution. It applies prospectively, and dictates the medium of exchange for inmates at the institution. It purports, in and of itself, to create rights and affect others; it is virtually self-executing, no exceptions or discretion in implementation is allowed. By its tone and language, it speaks with the force of a rule of law. The Department concedes that this operating procedure has never been adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact The Alachua County Detention and Corrections Department (Exhibit 9) consists of 50 full-time employees (Exhibit 17). Authorized personnel spaces include the Correctional Director, the Correctional Assistant Administrator, the Correctional Inmate Consultant, the Correctional Recreation and Education Consultant, a Correctional Officer V, a Correctional Officer IV, six Correctional Officers III, five Correctional Officers II, and thirty Correctional Officers I (see Exhibit 10). Also authorized are a Secretary III who is the secretary to the Director, three Food Service Employees and one Accounting Clerk I. Alachua County has a total of about 786 County employees, including constitutional officers such as the Sheriff, Clerk of the Circuit Court, Tax Appraiser, Tax Collector, Supervisor of Elections and the County Commission Staff. This figure includes 91 professional employees. If employees of constitutional officers were excluded from a single bargaining unit for the County, such a unit would consist of 360 employees. The County is under a unified pay plan for all county employees. It retains the services of a pay plan consultant who does an annual review of pay, job descriptions and duties of all county employees. It also has a unified classification plan and personnel regulations that govern salaries, work hours, vacation, sick leave, leaves of absence and the like (Exhibits 10,11). The County Administrator is the chief executive officer for the county and, with respect to the Department of Corrections, supervises basic policies and budgetary functions. The department budget is proposed by the Director of the Department, submitted to the County Administrator for review and corrections, and then approved by the County Commission. The Director implements the plan and can change line items only by permission of the County Administrator and the County Commission. The only history of prior collective bargaining in the county was recognition of the Sheriff's office on or about May, 1972. The Police Benevolent Association is the bargaining agent for that unit. The position of the County at this time is that it is a co-employer with the Sheriff as to that unit. The current contract with sworn personnel includes about 133 employees. The Police Benevolent Association declined to be included in a county-wide unit of county employees. Alachua County is the subject of special state legislation which permits it to manage funds allocated to constitutional officers such as the Sheriff, Clerk of Circuit Court, Tax Assessor, and Tax Collector for the county (Exhibits 12-15). The functions of the Corrections Department include the detention of persons awaiting criminal trial, care and housing of prisoners serving sentences, work release and school release programs, classification and diagnostic services, recommendations to the court for referrals to these programs and recommendations for diversionary programs. Unlike most counties, the Corrections Department does not operate within or under the office of the Sheriff. The Department is conducting a modern concept in rehabilitation of offenders through a variety of programs which are designed to re-orient prisoners for more useful lives. To this end, the department secures grants which enable it to fulfill some of these functions. In hiring personnel, it looks for those who have a high school degree and preferably some college work in the social services area. When forming the department in 1973, most of the employees hired came "off the street", although some came from the office of the Sheriff and from other county departments. Correctional Officers carry identification as Special Deputies which empowers them to detain people for corrections only. This status is unique to them. They wear a modified uniform consisting of a blazer, slacks and tie. Correctional Officers carry arms in transporting prisoners to and from court and in supervising their recreational activities outside the correctional facility. The department has tried to get away from a chain of command concept to lessen a law enforcement image. Although it has done away with military titles there are still some personnel who use military titles such as Sergeant and Lieutenant in addressing personnel. Employees of the department have their most continuing contacts with the Sheriff's office because they are in the same building and have similar interests in connection with county prisoners. The Correctional Director is responsible to the County Administrator for all activities, operations and functions of the department. His duties include fiscal, plant, manpower planning, management, organization, staff selection and supervision, policy formulation, the establishment of programs for the department, and for the operation and maintenance of the detention center. He alone has the authority to hire, discharge, promote or discipline personnel of the department. He formulates the budget which is submitted through the County Administrator of the County Commission. He is assisted in the hiring process by a panel which includes himself or the Assistant Administrator, another department employee and either the inmate consultant or a faculty member from the University of Florida. The Assistant Administrator assists the Director by making recommendations as to departmental policy, securing grant applications,. and formulating departmental programs. He also makes recommendations to the Director as to personnel matters and assists in fiscal matters. The Director holds periodic staff meetings at which the Correctional Officers IV and V usually attend. The Correctional Officer V is the Commander of the Detention Center and is thus responsible for direct supervision of all personnel and operations at that facility. He carries out operational policy established by the Director in the form of orders and memoranda. He makes budget recommendations to the Director as to necessary equipment but is not directly involved in the budget process. He makes recommendations to the Director concerning all personnel actions affecting the Detention Center, to include leaves, promotions or terminations. He exercises direct supervision over the Correctional Officer IV and the shift commanders (Correctional Officer III). The Correctional Officer IV is under the general supervision of the Detention Center commander and is responsible for supervision of all logistical and support services of the center. He also assists the Commander in maintaining communication and coordination among shift commanders. He serves as the Acting Commander in the absence of the Correctional Officer V. The Correctional Officers III have direct supervision of Correctional Officers I and II in the operation of the center and related programs. They serve as shift commanders for three shifts of 8 1/2 hours a day each. Correctional Officers I and II perform essentially the same duties which involve primary responsibility to maintain physical custody and control of prisoners within the detention facility and while transporting inmates. Their secondary responsibility is support of program goals through communication and observation of behavior and inmate attitude which is reported to the shift commander or treatment staff. The Correctional Officer II also assists in supervision and on the job training for new employees. In the absence of the shift commander, the Correctional Officer II becomes responsible for the functions of the Detention Center and supervision of correctional officers on duty on that shift. The Correctional Recreation and Education Consultant is preferably an ex-offender who initiates programs and activities for the prisoner population, including various sports and games, competitions among the inmates, and assists the Correctional Inmate Consultant. The Correctional Inmate Consultant is a member of the personal staff of the Director. It is his responsibility to spend great portions of his workday in direct contact with the inmate population and to advise the Director on matters pertaining to the well-being, health, sanitation and programming activities of the inmates. He assists individual inmates with their problems and makes recommendations to the director concerning work release, furloughs, extra "gain time" and, in certain instances, disciplinary matters. He attends all staff meetings except those involving departmental personnel and advises the Director on matters relating to policies of the department with reference to inmate treatment and control. He is an ex-inmate and, in general, advises on the institutional climate. The Food Service personnel are cooks who prepare food for the institution in the cafeteria. They report to the Correctional Officer IV. The Secretary III is the secretary to the director of the department who handles confidential matters for him, including meeting agendas, taking and transcribing dictation, minutes of meetings, conferences and other activities.
The Issue Whether Rules 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck, Mike Ramadanovic and Kenneth Boudreaux, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"). Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year. Petitioner Bourdreaux at the time of the final hearing was in close management confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rules. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following: (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following: Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement". Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following: (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented. Period of Outdoor Exercise. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up. On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard. Exercise Yards. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule. Recreational Equipment. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates. Yard Suspension. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate. The procedure for placing an inmate on the yard suspension list is as follows: The chief security officer recommends that an inmate be placed on the list. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code. The following procedure is followed to determine whether an inmate is removed from the yard suspension list: The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list. The superintendent makes the final decision of whether an inmate's name is removed. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992. Death Row Inmates. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise. If an exercise session is missed by a death-row inmate, the session is made up. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet). Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time. Death row inmates are provided with a variety of recreational equipment. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
The Issue Whether Respondent’s intended decision to award a contract to Intervenor, Global Tel*Link Corporation (GTL), for telecommunication services pursuant to an “INVITATION TO NEGOTIATE FOR INMATE TELECOMMUNICATIONS SERVICES FDC ITN-17-122” (the ITN), is contrary to Respondent’s governing statutes, its rules, or the ITN specifications; and, if so, whether it was contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: DOC is the state agency responsible for the supervisory and protective care, custody and control of all inmates incarcerated by DOC, its buildings, grounds, and property in the state. See § 945.025, Fla. Stat. In carrying out this statutory responsibility, DOC provides access to inmate telephone services. DOC believes that inmate contact with their family and friends reduces recidivism by encouraging family connections and prepares inmates for their eventual release back into society. DOC records all non-privileged calls in order to prevent and detect the coordination of violent and/or illegal activity over the telephone. Inmates may contact their family and friends by using a prepaid card or calling collect. The current rates for prepaid inmate calls are $0.04 per minute for local calls and $0.14 per minute for intra-Local Access Transport Area (LATA), inter-LATA and long distance calls. Under the current system, there is no deposit or funding fee for each call. The majority of inmates are not incarcerated in their home community, thus approximately 75 percent of current inmate calls fall into the $0.14 per minute categories. Inmate calls are limited to 15 minutes per call, however if there is no one waiting to use the telephone, the inmate may call again. A 15-minute local call currently costs $0.60 cents. A 15-minute intra-LATA, inter-LATA or long distance call currently costs $2.10. Securus, through its wholly owned subsidiary T-Netix Telecommunications Services, Inc., currently holds the contract to provide DOC inmate telephone service. DOC does not provide or pay for inmate telephone services, but is authorized pursuant to section 945.215(1)(b), Florida Statutes, to contract with telephone-service providers who install and maintain all the necessary telephone equipment for this service. On July 25, 2016, Ms. Faulk8/ (DOC’s bureau chief of procurement and lead negotiator) proposed a “justification memo” (memo) to DOC’s chief of staff for the use of an ITN “for the purpose of competitively procuring Statewide Inmate Telecommunication Services.” The stated purpose of the ITN was: to solicit replies from fully capable and qualified respondents, and to ultimately establish a Contract, based on the “Best Value”, for quality tele-communication services for inmates under” DOC’s care and custody. The memo suggested that the ITN process provided flexibility that would help DOC in “determining the service and programming options available and the opportunity to understand the implications of those services and proposed rates.” Further, the use of an ITN would allow DOC: to discuss in detail, each respondent’s technical capabilities, professional experience, and capability to provide quality services in relation to the rates charged to inmate friends and family members. The negotiation phase . . . will provide a venue for discussion of value-added services, and will ensure the most qualified vendor is selected. Section 287.012(17), Florida Statutes, defines “Invitation to negotiate” as: written or electronically posted solicitation for competitive sealed replies to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. Section 287.057(1)(c) further explains an ITN as a type of procurement method which allows an agency to “determine the best method for achieving a specific goal or solving a particular problem” and to identify “one or more responsive vendors with which the agency may negotiate in order to receive the best value.” On November 2, 2016, DOC released the ITN, seeking competitive replies from qualified vendors to provide telecommunications services for inmates at all DOC institutions, and its associated satellite facilities. The ITN specifically sought a no-cost contract, meaning DOC would not expend any State funds for the services procured. Instead, the winning vendor would charge an inmates’ family or friends on a per-minute basis for an inmate to place each telephone call. The original ITN timeline provided that the anticipated posting of the intent to award the contract was in April 2017. However, that original timeline was changed on December 22, 2016, and revised another 16 times before the intent to award was actually published. Revisions or changes (excluding solely timeline revisions) to the actual requirements of the ITN were found in the following addenda9/: 1, 3, 5, 6, and 8. The ITN’s “Statement of Purpose” found in section 2.2 provides: The Department is seeking responses, from interested and qualified Vendors, for the provision of telecommunication services for inmates at all its institutions, and associated satellite facilities, listed in Attachment II. Vendors must have at least three years, out of the last five years, of business/corporate experience, specifically providing telecommunication services through multiple sites in a correctional or other security/law enforcement setting, as described in this ITN. Specifically, the Department is seeking replies for telecommunication services for all its facilities. The Department intends to award the resultant Contract to a single Vendor, Statewide. The ITN’s “Procurement Overview” found in section 2.3 provides: The Department is requesting competitive, sealed replies, from responsible Vendors, in order to establish a multi-year Contract for the provision of telecommunication services to inmates in the Department’s care. The Department is interested in considering value- added services that would be beneficial to, or will otherwise complement, the services required by this ITN. The process for evaluating and selecting a Vendor will consist of two phases. The first phase involves evaluation of the replies to the ITN, which will result in the selection of Vendors to proceed to the negotiation phase. In the second phase, Vendors will be asked to provide a presentation of their Reply. This phase also includes negotiation of a final statement of work, pricing, and terms and conditions of the final Contract. The negotiation phase culminates in one or more of the Vendors receiving a request, from the Department, to submit a best and final offer (BAFO), which must include: (1) a revised statement of work; (2) a final Contract draft; and (3) a final cost and compensation model. (Emphasis added). The ITN’s goals and specific goals are found in sections and 2.4.1, which provide: FDC Goals The Department is looking to not only continue providing quality telephone services for inmates in our care, at the minimum, levels of service required by law and rule, but also to achieve strategic improvements in the area of tele-communication services. Overall goals for the Department include: Reduce recidivism through increased family re-unification and re-entry efforts. Ensure the safety and security of staff, inmates, and the public through the use of modern technology. Control inmate telephone usage and limiting the use of the telephone service for fraudulent activity. Ensure a quality telephone service with reasonable and justifiable telephone call rate charges for inmate’s families and friends similar to those available to the public at large. The intent of this procurement is to contract with a Vendor who will assist the Department in meeting these goals. Specific Goals of this ITN: Establish a flexible contract, with transparency of service costs and better alignment of costs with services. Establish a contract that allows the Vendor to bring market expertise and an ability to shape strategy, to lower the cost of telecommunication services for inmates friends and family, and maximize the benefits to the Department. Ensure a smooth transition/continuation of services from the current Contract to a new Contract without disruption. Award to a Vendor that applies technical and operational expertise to ensure a smooth continuation of services with minimal risk. Ensure pricing that is cost effective through entire term of the Contract. Establish a collaborative relationship, with the prospective Vendor, which will maximize the extent to which the Department can achieve the objectives of this ITN. (Emphasis added). DOC mandated an initial five-year contract, with an option for DOC to renew the contract up to five more years or any portion thereof. The additional five-year renewal period was “contingent, at a minimum, upon satisfactory performance by the Vendor, as determined by the Department, and will be subject to the availability of funds.”10/ The ITN’s pricing methodology found at 2.7 provided: The Department is seeking pricing that will provide the most favorable terms the Vendor can offer in terms of lowest phone rates to the State[11]; therefor, interested Vendors must submit a Cost Reply, utilizing the Price Information Sheet, Attachment III. Best and Final Offers from Vendors will be solicited to establish the lowest possible telephone rates and most beneficial value added services. Vendors are encouraged to submit a Cost Reply in such a manner as to offer the most cost effective, and innovative solution for services and resources, as cost efficiency for the State will be a consideration in determining best value. Vendors must provide the Cost Reply in accordance with the instructions in Section 4.8. (Emphasis added). The definition for value added service (VAS) is found in the ITN at section 1.29 as: Advanced and/or additional services provided to the Department that include new and innovative technologies relating to the telecommunication services sought, and at no additional cost to the Department. There is no definition for telecommunication services found in the ITN. DOC included a list of VASs in section 3.2 of the ITN. That list included in pertinent part: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN. At no cost to the Department, for the duration of the Contract term and any subsequent renewals, the Department is especially interested in the following value-added services; however, Vendors are encouraged to provide additional or alternate value-added services. Handheld Cell Phone Detection Units (CEIA or equivalent). A fully functioning Cell Phone Forensic Laboratory with the following: * * * Access to ICER (Inmate Inter- Communications Evaluation and Reporting) national database for identifying and reporting inmate-to-inmate communications. Word spotting services through the Vendors proposed inmate telephone system. Voice Biometric Analysis through the Vendors proposed inmate telephone system. Vendor-provided call monitoring. A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Change number 3 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2, the VASs section. The changes are shown via strike-through for the deleted language, and underscored for the new language: As part of this revenue generating Contract, the Department is interested in obtaining value-added services in lieu of commissions. The Department requests that Vendors provide with their Reply, a detailed description of all value-added services the Vendor is offering to the Department. These services would be in addition to those services that meet the minimum service requirements and specifications of this ITN; at no cost to the Department, for the duration of the Contract term and any subsequent renewals, The Department is especially interested in the following value-added services; however, reviewing Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. Vendors are encouraged to provide additional or alternate value-added services, beyond what is included in this Section. While value-added services are considered in the evaluation (see Section 4.9 of this ITN), Vendors are not required to propose a particular value-added service or group of services to be considered. Change number 4 found in the ITN’s Addendum 5, posted on February 23, 2017, provided revisions to section 3.2.7. The changes are shown via strike-through for the deleted language, and underscored for the new language: A Managed Access System (MAS), in an effort to control and eliminate wireless communications within our institutions. Vendors are encouraged to include a single facility, multi-facility or statewide solution that will prevent unwanted or unauthorized access to commercial wireless networks while simultaneously enabling legitimate, mission- critical, or emergency connections. Any Managed Access Solution being proposed by the Vendor shall be inclusive of all equipment, installation, infrastructure and network, training, operation, and ongoing repairs and maintenance. Vendors are not required to provide a MAS as part of their solution; however, if a Vendor chooses to include a MAS in their Reply, the Department is interested in the MAS meeting the below minimum requirements: Locations * * * 3.2.7.2. Implementation * * * 3.2.7.3 System Requirements * * * 3.2.7.4 Vendor Responsibilities * * * 3.2.7.5 Department Responsibilities * * * 3.2.7.6 System Maintenance * * * 3.2.7.7 Reporting * * * 3.2.7.8 Support The ITN process to select qualified vendors consisted of two distinct parts: Part 1 and Part 2. Part 1 required vendors to submit a “straightforward, concise delineation of the Vendor’s capabilities to satisfy the requirements” of the ITN. Eight specific components were described, and the evaluation criteria were provided. However, the actual components need not be reviewed here, as section 4.9.C provided the “score from the Evaluation Phase will not carry over into negotiations and the Negotiation Team will not be bound by those scores.” CenturyLink, GTL, and Securus are providers of telecommunications services for inmates, and each timely submitted the “Technical Reply and Cost Replies” for Part 1 of the ITN. It is well settled and uncontested that Securus scored the highest in Part 1, followed by GTL and CenturyLink. Part 2 allowed DOC to select one or more qualified vendors for the negotiation phase. DOC invited all three vendors to negotiate. The negotiation team (Team) included three DOC employees: Ms. Faulk, Mr. Kirkland12/ (DOC’s deputy director of Institutional Operations), and Mr. Harrell13/ (DOC’s bureau chief of Security Operations). Section 4.9 B. in the ITN set forth the following “Negotiation Phase Methodology”: The Department reserves the right to negotiate with any or all responsive and responsible Vendors, serially or concurrently, to determine the best solution. During the negotiation process the Department reserves the right to exercise the following rights. This list is not exhaustive. Schedule additional negotiating sessions with any or all responsive Vendors. Require any or all responsive Vendors to provide additional revised or final written Replies addressing specified topics. Require any or all responsive Vendors to provide a written Best and Final Offer (BAFO). Require any or all responsive Vendors to address services, prices, or conditions offered by any other Vendor. Pursue a contract with one or more responsive Vendors for the services encompassed by this solicitation, any addenda thereto, and any request for additional revised or final written Replies or request for best and final offers. Pursue the division of contracts between responsive Vendors by type of service or geographic area, or both. Arrive at an agreement with any responsive Vendor, finalize principal Contract terms with such Vendor and terminate negotiations with any or all other Vendors, regardless of the status of or scheduled negotiations with such other Vendors. Decline to conduct further negotiations with any Vendor. Reopen negotiations with any Vendor. Take any additional administrative steps deemed necessary in determining the final award, including additional fact-finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation. Review and rely on relevant information contained in the Replies received from Vendors. Review and rely on relevant portions of the evaluations conducted. Reject any and all Replies if the Department determines such action is in the best interest of the State. Negotiate concurrently or separately with competing Vendors. Accept portions of a competing Vendor’s Reply and merge such portions into one project, including contracting with the entities offering such portions. Waive minor irregularities in Replies. Utilize subject matter experts, subject matter advisors, and multi-agency advisors to assist the negotiation team. The ITN provided that DOC had “sole discretion in deciding whether and when to take any of” these actions. This methodology section included that the focus of the negotiations would be on “achieving the solution that” provided “the best value to the State based upon the ‘Selection Criteria’ and satisfies the Department’s primary goals as identified in the ITN.” Section 4.9 B. also included the Selection Criteria as: The Respondent’s articulation of its approach to provide the services. The innovativeness of Respondent’s approach to provide the services. Respondent’s articulation of its solution and the ability of the solution to meet the requirements of this ITN and provide additional innovations. Respondent’s demonstrated ability to effectively provide the services. Respondent’s experience in providing the services being procured and the skills of proposed staff relative to the proposed approach and offering. Respondent’s technical Reply and Cost Replies as they relate to satisfying the primary goals of the telecommunication services identified herein. Change number 2 found in the ITN’s Addendum 8 posted on June 13, 2017, provided revisions to section 4.8.A (2), the description of offering section. The changes provided the number of points allocated for each section in the Part 1 evaluation phase. However, paragraph “4.8.A.2.(c)” provided a further break- down of the overall points allocated to the “Vendor’s proposed value-added services” and provided important information for the negotiation phase. The pertinent changes are shown via underscore for the new language: c) To what extent do the Vendor’s proposed value-added services maximize the benefits to the Department? (Worth 21 weighted points, allocated below) Cell phone detection equipment and phone system surveillance services, including those listed in Sections 3.2.1, 3.2.4, and 3.2.5. (4 points) Cell phone forensics and intelligence, including those listed in Sections 3.2.2 and 3.2.3. (4 points) Managed Access Systems described in Section 3.2.7. (4 points) Vendor-provided phone call monitoring services referenced in Section 3.2.6. (4 points) Any other Vendor proposed value-added services or technology to aid in the prevention and detection of cellular devices, peripheral hardware and hazardous contraband at entry points and within the secure perimeter of our correctional institutions. (5 points) In the negotiation phase of this procurement, the Department reserves the right to negotiate for these or other value-added services identified through the negotiation process. Further, the Department is not bound to the point allocation or prioritization included in this section when determining the best value to the Department. Securus did not file a protest when Addendum 8 was posted. In the later part of November 2017, roughly a year after posting the ITN, DOC’s Team began conducting negotiation meetings with each vendor separately. Over the course of the next several months, the Team held a total of 20 negotiation sessions: 6 sessions with CenturyLink; and 7 sessions each with GTL and Securus. In addition, the Team held 24 strategy sessions where they discussed potential negotiation strategies, the vendors’ offerings, and options for achieving the best value to the State. DOC used a negotiating strategy that “flipped” Securus’ negotiating strategy. Instead of starting the negotiations with the low cost telephone rate charges and securing the VASs through the money collected in that manner, DOC elected to use a higher telephone rate charge to seek more VASs. Ms. Faulk explained this tactic as similar to how a car company operates. Instead of starting with a base price and adding specific features one at a time, a car company bundles added features, and a consumer has to take the bundle just to get the individual features they want. In Securus’ first negotiation meeting with DOC, Ms. Faulk informed Securus that DOC was: fairly comfortable with the base phone system . . . they are fairly solid system platforms. So the main focus will be on the value added services, as I’m sure you all expected it to be. Ms. Faulk made clear that the negotiations “as a whole are intended to be a two-way street.” Although Ms. Faulk advised Securus that DOC would not be “dictating” what was in Securus’ best and final offer (BAFO) to DOC, DOC was providing Securus “an opportunity to understand what’s important to” DOC. During the negotiation meetings, Ms. Faulk also stated that DOC was looking for: the solutions that we [DOC] can deploy and hit the biggest, the most number of institutions and kind of spread our buck or your [vendor’s] buck essentially the furthest that we can. Because, you know, we have funding struggles like any other public entity. And so, we want to utilize [the ITN process] in the best way we can. Ms. Faulk provided that DOC was trying to find a “sweet spot,” a call rate that was “reasonable” for inmates’ family and friends that also provided the VAS that DOC wanted. The ITN was a “revenue-generating contract” for the vendor to provide DOC with VASs “in lieu of commissions.” See ITN, section 3.2 Value-Added Services. However that changed during the negotiation phase. During the third or fourth negotiating session, “a change to the terms laid out in the ITN” was provided. DOC coveted a $5 million commission paid on a yearly basis. Ms. Faulk testified that the reasons for this change dealt with the need to fill a revenue gap created when a different DOC contract expired. According to Ms. Faulk, DOC “wanted to ensure that we [DOC] did not reduce our [DOC] contribution to the general revenue.” All proceeds from telephone commissions are deposited into the State’s General Revenue Fund. See § 945.215(1)(b), Fla. Stat. Ms. Faulk further testified that the ITN was structured to allow for negotiation, and DOC was, at that point, “negotiating terms and conditions.” DOC reviewed available telephone industry pricing for other state correctional departments (including Florida’s current provider) and found rates vary from a low of $0.04 (DOC) for local per minute calls to $0.13 (Georgia Department of Corrections, GDOC) for local per minute calls; and from a low of $0.06 (Texas Department of Corrections, TDOC) for an interstate per minute call to $0.25 (California Department of Corrections, CDOC) for an interstate per minute call. The other states also included a funding fee or account set up fee ranging from CDOC’s $3.00 (for a one-time set up fee) and $0.99 for each “Advanced Pay One Call,” up to TDOC’s $5.95 to fund prepaid accounts, plus $2.00 per collect call. No direct comparison can be made from these other states as there are too many variables in play. The Federal Communications Commission (FCC) recently conducted a study that determined a “reasonable rate” to charge inmates for telephone usage was $0.21 per minute. During the negotiation stage, Securus suggested to DOC that it provide a specific fixed per-minute rate, as well as include a deposit fee, in an effort to level the playing field for all competing vendors. Further, Securus explored the multiple VASs options that DOC discussed during the negotiation sessions. On April 23, 2018, following completion of the multiple negotiation sessions with all the vendors, DOC issued a Request for Best and Final Offers (RBAFO) pursuant to section 4.9 of the ITN. The RBAFO directions had a specific reference to VASs. It provided: Value-added Services to include any additional ideas for improvement or cost reduction, additional commodities or additional services, which the Vendor will provide to the Department at no additional cost(s). These should be thoroughly detailed including an exact quantity, proposed implementation schedule, and maintenance, as applicable. The RBAFO also provided specific directions on the format for the BAFO response and required that detailed information be provided on a revised price information sheet (RPIS). The RPIS included: The Vendor shall provide their proposed monthly commission rates per the stated per minute rate and deposit fee. Value-added services should be included on a separate sheet, along with any price assumptions. Please note, these rates are the only fees to be charged to inmate friends and family and shall include any surcharges and connection fees. The RPIS also required the initial term and renewal term be stated. The RPIS also supplied: the per minute telephone rate for all calls at $0.135; the deposit fee of $0.9914/; and a monthly commission rate of “$ .” The RPIS then again instructed that “The Vendor should include all Value-added Services on a separate sheet.” The form also contained the appropriate lines for the date, Federal Identification Number, the vendor’s name, the vendor’s printed authorized representative’s name and his/her signature. On May 30, 2018, Securus, GTL, and CenturyLink submitted their BAFOs. GTL and CenturyLink each submitted one BAFO, while Securus initially submitted four BAFOs. The Team requested clarification from the vendors, and additional responses were submitted on June 25, 2018. GTL and CenturyLink each revised or submitted one BAFO, while Securus submitted an additional three BAFOs. Securus provided multiple scenarios as to how it could best accomplish DOC’s goals, using different telephone rates. GTL’s BAFO provided the required call rate, deposit fee, monthly commission, and VAS within the five-year initial contract period. Option 5 of Securus’ BAFOs, which was closest to the GTL BAFO, provided the required call rate, deposit fee, monthly commission, and VAS, but delivery was over a 10-year period as opposed to the five-year initial contract. The Team held a final meeting on November 21, 2018, to discuss the various BAFO proposals. Ultimately, the Team recommended GTL for the contract award. The Team’s recommendation memorandum provided the Team “felt that both Securus and GTL offered similar core inmate telecommunication services to inmates and the Department with a robust management system.” The difference, and the basis for the Team’s recommendation to award the contract to GTL, was grounded on GTL’s “offered commission rates and value-added services that would be implemented throughout the course of a five (5)-year initial contract term” as opposed to Securus’ proposal “over a 10-year initial contract term.” The remaining six options by Securus, offered the “five (5)-year contract term, [but] provided lower commission rates and less value-added services” to DOC. On December 11, 2018, DOC posted its Notice of Intent to Award the contract to GTL. Securus timely protested DOC’s selection of GTL. Securus’ protest focused on what it perceived to be VASs that were not related to inmate telecommunications services, specifically: hand-held walkie-talkies; a biometric entry/exit system for inmates, staff and visitors; and a radio frequency identification system (RFID). Securus failed to appreciate DOC’s stated goal: “Ensure the safety and security of staff, inmates and the public through the use of modern technology.” Each of these VASs falls within that goal. DOC maintained its goal of “reasonable and justifiable telephone call rates.” DOC failed to maintain its specific goal for establishing a contract that lowered, not raised, the cost of telecommunication services for inmates’ friends and family, but held fast to maximizing the benefits to DOC. Although contrary to the goal, DOC placed all vendors on notice of its intention to seek the desired VASs in relation to the telecommunication services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a final order dismissing the protest by Securus. It is further recommended that the Department of Corrections award the contract under Invitation to Negotiate, ITN-17-122, to GTL. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2019.
