The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was employed as a corrections officer with the Gulf County Jail.1/ In May of 2010, officials for the Gulf County Jail in conjunction with the Gulf County Sheriff's Office investigated allegations that contraband was being smuggled to inmates at the jail. As a result of the investigation, seven people were dismissed from employment and/or charged with crimes. Part of the investigation addressed Respondent's alleged behavior. As part of that investigation, Investigator Shane Lee of the Gulf County Sheriff's Office interviewed inmate Jason Strimel. Michael Hammond, Administrator for the jail, also attended the interview, which was videotaped. Based on information received from the interview, a baggie was retrieved from Mr. Strimel, which contained two pills and some residue. Pictures of the pills were entered into evidence as Petitioner's Exhibit 2. While Warden Hammond testified that the pills were tested and determined to be Ultram, no documentary evidence related to the testing was introduced. Based on the investigation by the Gulf County Sheriff's Office, Respondent was charged with introduction of contraband, in violation of section 951.22, Florida Statutes. Respondent entered into a Deferred Prosecution Agreement on January 27, 2012. His employment at the Gulf County Jail was terminated. No competent evidence was presented in this proceeding connecting Respondent to the introduction of contraband.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 12th day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of March, 2013.
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of December, 2004.
The Issue This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes. In his original petition the Petitioner sought to challenge several rules of the Department, as well as certain Department policy and procedure directives and internal operating procedures of Florida State Prison. At the hearing the scope of the issues was narrowed by agreement of the Petitioner to challenges to the following: Rule 33-3.005, Florida Administrative Code; Department of Corrections Policy and Procedure Directives 4.07.06 and 4.10.51; and Florida State Prison Institutional Operating Procedure No. 4-86.04.
Findings Of Fact Based on the testimony at the final hearing and on the exhibits received in evidence, I make the following findings of fact. The Petitioner, Ervin J. Horton, is an inmate in the custody of the Department of Corrections. The Petitioner is presently confined at Florida State Prison. At the time of the hearing in this case, the Petitioner was on confinement status and he has been on confinement status in the past. Rule 33-3.005, Florida Administrative Code, has been adopted by the Department of Corrections. The title of the rule is "Legal Documents and Legal and Privileged Mail." The general subject matter of the rule concerns the preparation, mailing, and receipt of legal documents and legal mail by inmates. The rule is applicable to the Petitioner. The Department of Corrections has adopted Policy And Procedure Directive Number 4.07.06, which is titled "Preparation And Processing Of Legal Documents And Legal Mail." This directive is for the most part a restatement of many of the provisions of Rule 33-3.005, Florida Administrative Code. The directive also includes a provision requiring each prison Superintendent to issue an institutional policy memorandum to effectuate the provisions of the directive. The Department of Corrections has adopted Policy And Procedure Directive Number 4.10.51, which is titled "Law Libraries." The directive is in part a restatement of portions of Rule 33-3.005, Florida Administrative Code. However, for the most part it sets forth the Department's policies regarding the establishment, operation, and maintenance of prison law libraries. Portions of the directive contain limitations on the time, place, and manner in which inmates may use the law libraries. The Superintendent of Florida State Prison has adopted Institutional Operating Procedure No. 4-86.04, which is titled "Preparation Of Legal Documents By Inmates." This is an institutional policy memorandum required by Policy And Procedure Directive Number 4.07.06. IOP No. 4-86.04 addresses the same general subject matter as is addressed by Policy And Procedure Directive Number 4.07.06. The IOP includes additional specific details for implementation of Policy And Procedure Directive Number 4.07.06 and Rule 33-3.005, Florida Administrative Code, at the Florida State Prison facility. As a result of his status as an inmate at Florida State Prison, the Rule, the Policy And Procedure Directives, and the Institutional Operating Procedure described above are applicable to the Petitioner to the extent they regulate his activities within the scope of those documents. The documents described above in paragraphs 2, 3, 4, and 5 of these findings of fact are the only documents to which this rule challenge proceeding is addressed. The testimony at the hearing consisted largely of anecdotal testimony regarding a long series of Petitioner's alleged individual problems within the State correctional system. Some of his problems have been real; others appear to probably have been imaginary. All of the problems described by Petitioner were largely irrelevant to the issues raised in the petition. And to the extent portions of Petitioner's testimony were relevant to the general subject matter at hand, the testimony did not tend to demonstrate that the challenged documents were invalid exercises of delegated legislative authority. The exhibits offered by Petitioner were of the same general tenor as his testimony.
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK 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 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Invitation to Negotiate No. 12/13-010, issued by Respondent for the operation and management of Bay Correctional Facility, Graceville Correctional Facility, and Moore Haven Correctional Facility, is contrary to Respondent's governing statutes, rules, or policies.
Findings Of Fact Parties/Interested Persons Petitioner, CCA, is a private corporation specializing in the design, construction, expansion, and management of correctional facilities. CCA currently operates 61 facilities for the United States federal government and state governments. Respondent, DMS, is authorized to contract for private correctional services under specified circumstances. As a prerequisite to entering into a contract for private correctional services, DMS must find the contract will result in a 7% cost savings to the State over public operation of a substantially similar facility. DOC, a non-party, currently operates 48 public correctional facilities and contracts with private vendors for operation of seven private correctional facilities. With respect to privatized facilities, DOC has the duty and responsibility to calculate the cost per inmate per day (per diem rate) for public operation of a substantially similar correctional facility. The per diem rate must be based on the costs of operating a correctional facility of a similar size, type, and location as the facility sought to be privatized. Brief Background Per Diem Workgroup The Florida Legislature first authorized private correctional facility operation in 1993, adopting the Correctional Privatization Act, chapter 957, Florida Statutes (the Act). As adopted, the Act included a cost-savings requirement: the State must find that private operation of a correctional facility would result in a savings of at least 7% over public provision of a similar facility. In 2001, the Legislature created the Prison Per-Diem Work Group, composed of the staffs of the Auditor General, Office of Program Policy Analysis and Government Accountability (OPPAGA), and the Appropriations Committee of the Florida Senate and of the House of Representatives (the Work Group). The Legislature directed the Work Group to convene, beginning in 2002 and each year thereafter, for the purpose of developing consensus per diem rates for privately operated facilities. See ch. 01-379, § 2, Laws of Fla. In 2002, the Work Group published a Report of Consensus Per Diem Rates (the Report). The Report included a set of Overall Per Diem Rates for each of the three main population types (adult male, youthful offender, and female), as well as Alternative Per Diem Rates and Program Per Diem Rates. The Overall Per Diem Rates represent an average daily operating cost of all publicly operated facilities. The Alternative Per Diem Rates exclude the costs of operating specialty facilities such as death row and work release, which are not operated by private vendors. The Program Per Diem Rates represent the average cost to provide educational and substance abuse programs to inmates within each of the three population groups. By way of example, the 2002 Work Group developed an Overall Per Diem Rate of $50.53 to operate an adult male correctional facility. The 2002 Work Group explained that the Alternative Per Diem Rates provided examples of adjustments that could be made to the Overall Per Diem Rates to facilitate a more direct comparison between public and private correctional facility costs. The Work Group made a location adjustment to remove the cost associated with a Competitive Area Differential paid to correctional officers in South Florida. Further, the Work Group made a series of size adjustments to reflect the extent to which public facilities of similar size to private facilities are above the location-adjusted average operating per diem. By way of example, the 2002 Work Group calculated an Alternative Per Diem Rate of $44.93 for operation of an adult male correctional facility, a location-adjusted rate of $44.83, and size-adjusted rates of $47.71 on the low end, to $57.60 on the high end. The 2002 Work Group did not adjust the calculated consensus per diem rates to account for cost differentials in private correctional facility operation such as credits for property tax payments, corporate income and sales tax payments, and payments to a maintenance reserve fund. The Report notes that such adjustments were outside the scope of the Work Group’s responsibility, which was limited to identifying public facility operation costs. In 2005, the Work Group convened again and developed consensus per diem rates utilizing the same methodology as used in 2002. The Work Group developed the following Per Diem Rates for operation of an adult male facility: an Overall Per Diem Rate of $51.90; an Alternative Per Diem Rate of $44.84; and Size-Adjusted Per Diem Rates of $51.26 on the low end, to $52.66 on the high end. The 2005 Report on Operating Per Diem Rates does not mention further adjustment of the Adjusted Per Diem Rates to account for cost differentials in private facility operations such as credits for property tax payments, corporate income and sales tax payments, and payments to a maintenance reserve fund. However, the Report does include a note that public correctional facilities realize economies of scale by operating above their design capacity, an advantage that private facilities cannot obtain. Private facilities are limited, by both contract and the standards of the American Correctional Association, to operation at no greater than their design capacity. The 2005 Report notes that the Work Group had not attempted to estimate the impact of economies of scale unavailable to private facilities. In 2006, the Legislature removed the requirement that the Work Group convene on a yearly basis and replaced it with convention upon the call of the Speaker of the House of Representatives and the President of the Senate. See ch. 06-32, § 4, Laws of Fla. 2010 Procurement In 2010, DMS rebid the contracts for Moore Haven and Graceville, which were previously operated by GEO Group, as well as the contract for Bay Correctional Facility, which was operated by CCA. CCA was awarded the contract to operate all three facilities. To prepare the 2010 ITN, DOC first selected public correctional facilities similar in size, type, and location to the private facilities which were the subject of the ITN. DOC selected the New River Correctional Institution as similar to Bay and Moore Haven, and Wakulla Correctional Institution as similar to Graceville. DOC separated the programming costs of those facilities from the security and indirect costs, arriving at the base per diem operating costs for the two comparable facilities. Next, DOC added in the costs for educational, health, and other programs based on the level of service required by the contract in the ITN. CCA Deputy Chief Development Officer Lucibeth Mayberry testified that she did not recall whether CCA was aware of the methodology used to calculate the per diem rates for the 2010 ITN. She explained that the per diem rates are the bottom line of any competitive correctional facility procurement, and the 2010 rates allowed CCA to put in a competitive bid. No direct evidence was introduced as to the advertised per diem rates included in the 2010 ITN. However, Ms. Mayberry testified that the current per diem rates by contract for Bay and Moore Haven are around $48.00, while that for Graceville is around $34.00. Post-2010 Cost Reductions Since 2010, DOC has significantly reduced its cost to operate Florida’s public correctional facilities. According to an April 2013 report by OPPAGA, in Fiscal Year (FY) 2011-2012, per diem rates for operation of adult male correctional facilities housing inmates similar to the private facilities decreased an average of over 8% from the prior year. The average per diem rate for operation of an adult male public correctional facility for FY 2011-2012 was $42.00. The DOC operating cost reductions are the result of the closure of several public facilities, including three adult male non-specialty facilities; consolidation of inmates from closed facilities; and workforce eliminations and reductions. OPAGGA concludes that the primary cause of the decrease in per diem rates was the reduction in the amount contributed by the State to employee retirement. OPAGGA estimates that the statewide requirement for employee to contribute 3% to their retirement, together with the State decrease to special risk retirement, resulted in a savings of $88 million to DOC. DOC has also reduced costs at public correctional facilities by changing its operations. The State maintains an 8% vacancy rate in correctional officer positions, allowing wardens flexibility to staff security posts according to highest priority on a daily basis, while leaving lower priority posts vacant. In FY 2011-2012, DOC began working its housing officers on 12-hour shifts, which allowed for further reduction in security costs. By consolidating inmates from closed facilities with those in operational facilities, DOC has realized an economy of scale in some facilities where more inmates are housed without increasing security costs. The 2010 contracts for operation of Bay, Moore Haven, and Graceville correctional facilities expire in 2013. In January 2013, DMS released the per diem rates for operation of similar facilities to be included in the ITN at issue. The published rates are 17% lower than the rates CCA is paid under the current contract to operate those facilities. Hence, the present controversy. The 2012 Per Diem Development Process Michael Weber, DMS Bureau Chief of Private Prison Monitoring, contacted DOC Deputy Secretary Michael Crews on September 21, 2012, to obtain “key information” from DOC to prepare a document with which to solicit vendors for private correctional facility services at Bay, Moore Haven and Graceville correctional institutions. Key information includes the type of inmate (i.e., male, female, or youth), the custody level (i.e., close, medium, minimum, or community), inmate programs to be offered (e.g., re-entry and education, substance abuse), and the medical profiles of inmates to be housed at each of the three facilities. On October 3, 2012, DOC Director of Institutions James Upchurch responded to DMS with a chart showing inmate type, custody, medical profiles, and programmatic profiles for each of the three facilities operating under the current contracts. DOC later notified DMS of adjustments in both custody and programmatic services for the Bay and Moore Haven facilities during the next contract period. Eventually, DOC decided against changing custody type of inmates housed at those facilities. On October 9, 2012, DOC clarified the need to include within the ITN program services for up to 18% psychological grade three (S3) inmates at Bay and Moore Haven. No changes were made to correctional services provided at the Graceville facility under the current contract. On October 10, 2012, DMS issued the ITN. As issued, responses to the ITN were due November 13, 2012, at 11:00 a.m., Eastern Standard Time. The ITN includes the proposed contract and requires that proposals must be 7% less than the DOC-calculated per diem rate to be considered responsive. However, the ITN as issued did not contain the per diem rate for facilities substantially similar to Moore Haven, Bay, and Graceville. On October 22, 2012, DOC Secretary Kenneth Tucker sent a letter to the Auditor General requesting an audit and certification of an attached set of spreadsheets calculating the per diem rates for public provision of correctional services at facilities comparable to Bay, Moore Haven, and Graceville. The per diem rate for each facility was formulated by DOC in three steps: First, DOC selected a comparable facility; broke out the operating costs by security, administration, and programmatic services; and deducted costs for programmatic services (education, substance abuse, and health services) at the comparable facility. This calculation yielded a per diem rate for the comparable facility based solely on security costs and indirect, or administrative, costs. This rate is referred to as the “above-the-line” number for purposes of interpreting the spreadsheets for each of the three facilities. The above-the-line per diem rate for each facility, as submitted to the Auditor General, was as follows: Bay and Moore Haven -- $41.76; Graceville -- $36.62. Second, DOC multiplied the operations per diem for the comparable facility by the contracted population number for each facility. This calculation yielded operational costs for each of the three contracted facilities. DOC then added to that figure the costs associated with providing the programmatic services requested for the inmate population at each of the three facilities based on the proposed contract. This step yielded the unadjusted operational costs for each facility. Third, DOC adjusted the total cost to account for cost savings realized by DOC through its policy of 12-hour shifts (which private providers cannot match), and deducted costs associated with work camps and work squads at the comparable facilities (private corrections providers do not operate work camps). The total costs to operate were adjusted to provide a per diem rate for operation at a private correctional facility that is comparable to operation at a public correctional facility. This step yielded the total adjusted operational cost for each facility. The total adjusted cost was divided by the contract population for each facility to arrive at the adjusted per diem rate for each of the three facilities, as follows: Bay -- $43.22; Moore Haven -- $42.38; Graceville -- $40.51. For each facility, the adjusted per diem rate was slightly higher than the “above-the-line” per diem rate. On October 26, 2012, DMS published on the State VBS a copy of the October 22, 2012, DOC letter to the Auditor General requesting certification of the per diem rates. CCA staff testified they were shocked by the low per diem rates that DOC requested the Auditor General to certify. The published per diem for Bay and Moore Haven was 17% lower than the per diem certified by the Auditor General for the 2010 procurement in which CCA was awarded the current contract. On October 31, 2012, Ms. Mayberry sent a letter to DMS outlining concerns with the proposed per diem rates in the DOC October 22, 2012, letter to the Auditor General. On November 1, 2012, Petitioner’s competitor, GEO Group, sent a letter to DMS raising similar concerns. By letter dated January 24, 2013, the Auditor General’s office notified the Speaker of the House of Representatives and the President of the Senate of its completion of the audit of the DOC per diem rate calculations. In the intervening period, DMS issued 10 Amendments to the ITN, the majority of which extended the deadline for Responses from the original deadline of November 13, 2012. The Auditor General’s letter reads in pertinent part: The Auditor General performed selected procedures to evaluate the 2011-12 fiscal year operating costs provided by the Department for the State-operated Holmes and Okeechobee Correctional Institutions that were identified by the Department as substantially similar to the privately- operated facilities. Operating per diems are primarily a function of costs and inmate population. * * * Based on the procedures performed, we concluded, pursuant to Section 957.07(1), Florida Statutes, that the 2011-12 fiscal year Holmes Correctional Institution operating per diem of $41.76 provided by the Department was reasonably consistent with the State’s accounting and budgeting records . . . . The Holmes Correctional Institution operating per diem of $41.76 is an appropriate amount to which necessary adjustment may be made for variations in Bay Correctional Facility and Moore Haven Correctional Facility operations. The letter proceeds with the same findings regarding the FY 2011-2012 operating per diem of $36.62 for Okeechobee Correctional Institution as “reasonably consistent with the State’s accounting and budgeting records” and “an appropriate amount to which necessary adjustment may be made for variations in the Graceville Correctional Facility operations.” As such, the Auditor General’s process evaluated only the “above-the-line” per diem rates in each of the DOC spreadsheets and certified those amounts as the starting point for an adjusted per diem rate for each of the contract facilities. On January 24, 2013, DMS posted the Auditor General’s letter as Amendment 11 to the ITN, as well as a spreadsheet for each of the three contract facilities titled “Public Per Diem with Adjustments.” There are two substantive differences between this publication and the October 22, 2012, spreadsheets provided to the Auditor General by DOC. First, the health care per diem rate was adjusted for both Bay and Moore Haven to account for increased health care costs to house up to 18% S3 inmates at those two facilities. Second, that change increased the adjusted per diem rates for the two facilities. As published on January 24, 2013, adjusted per diem rates for the contract facilities were as follows: Bay -- $43.76; Moore Haven -- $42.91; Graceville -- $41.05. Notably, DMS published at the bottom of the spreadsheet for the Bay Correctional Institution, “Respondents must submit a per diem bid for the Bay Correctional Facility that is no greater than $40.69 to be considered responsive.” The spreadsheets for Moore Haven and Graceville contain the same language specifically incorporating the adjusted per diem rate as a term of the ITN and require bids be 7% below the adjusted per diem rate to be considered responsive. On Monday, January 28, 2013, at approximately 5:30 p.m., DMS again posted Amendment 11 and noted as follows: On January 24, 2013, the Department posted on the VBS two changes regarding the above- mentioned competitive solicitation. However, Amendment 11 was not completely posted. As such, the Department hereby posts Amendment 11 in its entirety.[1/] Petitioner filed a notice of intent to protest the specifications of the ITN on January 30, 2013, and filed its Formal Bid Protest Petition on January 31, 2013. Petition and Issues CCA challenges the ITN on both procedural and substantive grounds. Procedurally, CCA alleges DMS is authorized to procure contracts for the operation of private correctional facilities only by Request for Proposal (RFP) pursuant to section 957.07, Florida Statutes. Procedural Challenge/Waiver DMS maintains CCA is precluded from challenging DMS’ choice to procure the private correctional institutional contracts by ITN rather than RFP. The ITN was issued on October 10, 2012, and no intent to protest was filed within 72 hours. DMS argues that the issue of method of procurement has been waived. DMS is correct, as more fully explained in the Conclusions of Law. In order to challenge DMS’ choice to procure private correctional facility operation through ITN rather than RFP, CCA should have filed a notice of intent to protest within 72 hours of DMS posting the ITN on October 10, 2012. Since CCA did not file a notice of intent to protest until January 28, 2013, that issue has been waived. DMS also alleges that CCA waived many of the issues contained in its Petition because CCA did not file notice of intent to protest particular specifications of the ITN within 72 hours of DMS posting the amendments which incorporated those specifications. DMS maintains that CCA is limited in its challenge to whether the per diem rate published on January 28, 2013, accurately accounts for the cost of housing S3 inmates at Bay and Moore Haven. DMS reasons that the only change between the per diem amount published on October 26, 2012, and that published on January 28, 2013, is the small adjustment made to account for S3 inmates and, therefore, it is the only issue timely raised by CCA. DMS’ position on this issue is not supported by the facts. The DOC letter to the Auditor General was not posted as an Amendment to the ITN; did not contain a notice of rights, pursuant to chapter 120.57(3), Florida Statutes; and was not incorporated into the ITN as a term thereof. Neither the above- the-line nor the below-the-line per diem rates had been reviewed or certified by the Auditor General on October 26, 2013, and the certification process was not complete. In fact, the certification process was not completed until January 24, 2013, some 90 days later. DMS represents that CCA’s corporate representative admitted at hearing that CCA could have filed a bid specification protest on October 26, 2012, in response to DMS posting the letter to the Auditor General. However, the testimony of Ms. Mayberry does not bear that out: Q: Was that a discussion that was had internally with regard to different options and vendor relationships about how that might change with filing a protest as opposed to sending a letter? A: At that time, I don’t believe we had -– we knew a protest was possible in Florida and we had filed an intent to protest before which we had withdrawn. But at that time –- we didn’t have a certified per diem. We thought this was going to be fixed. We thought that when we raised concerns, that would be addressed. So I am giving you information because I don’t honestly remember exactly –- I don’t think a protest –- a protest seemed premature to us at that point because we didn’t have certified per diems, as that wasn’t –- we didn’t have the real per diem at that point. We just had the letter from DOC, which we felt certain was going to be adjusted.[2/] Ms. Mayberry did not admit that CCA had a point of entry to challenge the per diem rates in the October 22, 2012, letter; instead she insisted that the rates were not final and a challenge would have been premature. Even if Ms. Mayberry had admitted that CCA could have challenged the posting on October 26, 2012, her opinion would not have been binding on the undersigned because it would have been a legal conclusion. Substantive Challenge Next, CCA challenges the per diem rates included in the ITN through Amendment 11 on the following bases: The per diem rates are not based on the costs associated with comparable publicly operated correctional facilities. CCA maintains DOC acted arbitrarily in selecting the comparable facilities. DOC erred in adjusting the base per diem rate to account for costs associated with programmatic services to be provided under the contract in the ITN. CCA maintains that some adjustments were too high, while others were too low. DOC erred by not including adjustments to the base per diem rate to account for savings realized by operational changes at public institutions which cannot be made by a private vendor. Finally, CCA argues that the overall accounting methodology utilized by DOC is flawed. In summary, CCA argues that the per diem rates for all three facilities are too low because DOC did not correctly choose substantially similar facilities as the bases for public per diem rates, and DOC did not accurately adjust the base per diem rates to fairly account for differences in public and private correctional facility operations. The Contract Facilities CCA challenges DOC’s selection of the Holmes Correctional Institution for comparison to Bay and Moore Haven because Holmes is not “substantially similar” as required by the governing statute. Likewise, CCA challenges the selection of Okeechobee Correctional Institution for comparison to Graceville because it is not “substantially similar.” Under the governing statute, DOC is charged with selecting a public correctional institution which is similar in “size, type, and location” to the facilities sought to be managed by a private correctional institution. Size equates with inmate population of a correctional facility. Both Bay and Moore Haven have a design capacity of 985 inmates. Graceville is a larger facility designed to house 1513 inmates. All three facilities are under contract to operate at design capacity. There are three types of general correctional facilities: adult male, youthful offender, and female. There are also a number of specialty type institutions in the correctional system, such as reception and medical centers, maximum security, death row, and mental health. Adult male facilities may house inmates at different custody levels (close, medium, minimum, and community) and with different health profiles (medical grades 1, 2, and 3; psychological grades 1, 2, and 3; wheelchair; and special needs). Inmates from different custody levels and health profiles may be housed together without changing the primary mission of the facility to a specialty institution. Bay, Moore Haven, and Graceville are all adult male facilities, contracted for similar custody levels. Under the ITN, Bay and Moore Haven may accept inmates of medium, minimum, and community custody levels. Both are currently serving 100% medium custody inmates. Graceville is designated to accept close, medium, minimum, and community custody inmates and currently serves 40% close custody inmates. The three facilities are also designated to accept inmates with similar health profiles. Under the ITN, Bay and Moore Haven will accept 84% medical grades 1 and 2, 16% medical grade 3, 82% psychological grades 1 and 2, 18% psychological grade 3, 2% wheelchair, and 6% special needs inmates. Graceville is designated to accept the same percentages of psychological grade inmates and wheelchair inmates, but may accept up to 5% special needs inmates and a small percentage of medical grade 4 inmates. Location refers to the geographic location of a facility. DOC divides correctional facilities regionally. Both Bay (Bay County) and Graceville (Jackson County) are in Region 1. Moore Haven (Glades County) is located in Region 3. For purposes of comparing correctional facility costs, location is significant when a facility is located in South Florida, where employees are paid a competitive area differential. Location is also a factor when an institution is remote from population centers, which may affect staffing and turnover rates. Substantially similar facilities James Upchurch, DOC Assistant Secretary for Institutions and Reentry, selected the public correctional facilities “substantially similar” to the three contract facilities for purposes of calculating the base per diem. Mr. Upchurch came to Florida as Chief of Security Operations for DOC in 1996 following 26 years in operation of public correctional facilities in Mississippi and Arizona. He served as a warden in three different Arizona correctional facilities, including a super max facility, and was a regional director for the State of Arizona as well. Mr. Upchurch was DOC Chief of Security Operations from 1996 until 2011, when, after a brief stint as warden at Franklin County Correctional Institution, he became DOC Director of Operations. In March 2012, Mr. Upchurch was promoted to Assistant Secretary of Institutions and Reentry and now supervises region directors, the deputy assistant secretary for institutions, and the deputy assistant secretary for reentry. Altogether, Mr. Upchurch has 17 years of experience in Florida’s correctional facility operations. After excluding the DOC specialty institutions, Mr. Upchurch identified two institutions similar to Bay and Moore Haven and two institutions similar to Graceville for further review. He asked Vicki Newsome, DOC Assistant Bureau Chief for Population Management and Classifications Services, to pull the facility profiles for comparison. Bay and Moore Haven In his initial analysis, Mr. Upchurch chose Holmes Correctional Facility and Lawtey Correctional Facility as comparable to Bay and Moore Haven and reviewed their facility profiles. Holmes, Bay, and Moore Haven are all located in Region 1 and house adult male inmates. Lawtey does not house S3 inmates and Holmes only houses one S3 inmate. Both Bay and Moore Haven will house up to 18% S3 inmates under the ITN. According to the data reviewed by Mr. Upchurch, Holmes houses 37% close custody inmates, while Lawtey houses no close custody inmates. Neither Bay nor Moore Haven is contracted to house close custody inmates. Holmes is not a stand-alone facility, but rather includes a work camp which is physically separated from the perimeter of the main facility. Lawtey is a stand-alone facility, as are Bay and Moore Haven. Bay and Moore Haven have similar layouts –- four large dorms housing between 250 and 400 inmates each, and one much smaller dorm housing a small number of segregated inmates. By comparison, Lawtey’s inmate population is spread among 10 dorms, one housing 200 inmates and the remainder housing roughly 80 inmates each. Much like Bay and Moore Haven, Holmes houses its population in a series of larger dorms, one housing 250 inmates, seven housing just under 150 inmates each, and one much smaller dorm housing around 60 segregated inmates. Lawtey is a faith- and character-based institution. Bay, Moore Haven, and Holmes are not faith- or character-based. For the 2010 procurement, DOC had chosen the New River facility as comparable, but that facility has since closed. Holmes and New River are 2 of 15 state correctional institutions built on a prototypical layout –- administration and support at the front of the compound, recreation wellness yard in the back, housing units in the middle, and a separate work camp on the grounds but physically separated from the perimeter of the main compound. In the final analysis, Mr. Upchurch selected Holmes as the facility most comparable to Bay and Moore Haven. He based this selection, in large part, on the fact that Holmes was so similar to the New River facility selected for the prior procurement. Mr. Upchurch ruled out Lawtey in his final analysis because it is a faith- and character-based institution, which he testified increases security costs. Further, the layout and dorm capacities of Lawtey are not as efficient as the larger dorms at Bay and Moore Haven. Mr. Upchurch did not verify that Lawtey actually had higher security per diems because it was faith-based. In fact, he explained that the only way to verify that mathematically would be to remove the faith- and character- based mission and compare the resultant costs with the prior costs. Identifying a public correctional institution substantially similar to Bay and Moore Haven is indeed a difficult task. At a contracted inmate population of 985 each, Bay and Moore Haven are significantly smaller than the average adult male public correctional facility. This was true in 2005 when the Per Diem Workgroup was convened to formulate a consensus per diem rate. This disparity in size has only increased in recent years as many public institutions have been closed and their populations consolidated. In FY 2011-2012, only 7 of the 30 public adult male facilities had an average daily population of fewer than 1,500 inmates. Both Lawtey and Holmes are among the seven. The populations of Lawtey and Holmes differ significantly, however. Holmes averaged 1,466 inmates per day in FY 2011-2012, while Lawtey averaged 805. The difference in population between Bay and Moore Haven and that of Lawtey is 185. The difference in population between Bay and Moore Haven and that of Holmes is 481. The evidence was uncontroverted that facility size is one of the most important variables in determining correctional facility costs. The larger the inmate population, the more security is needed. More security means more salaries and benefits. Mr. Upchurch selected Holmes as comparable to Bay and Moore Haven based on its similarity to New River, one of the same prototypes as Holmes, and the similar inmate housing patterns, which were known to him to require similar staffing patterns. Although Holmes has a work camp, which Bay and Moore Haven do not, Mr. Upchurch expected the security costs associated with the work camp (separate perimeter patrol and additional security staffing) would be removed from the per diem rate. Furthermore, Mr. Upchurch considered the security staffing requirements of Lawtey based on his experience not just in Florida, but in his entire 43-year career in public correctional facility operation. Mr. Upchurch’s decision to select Holmes as substantially similar to Bay and Moore Haven was not made without thought or reason or in an illogical manner. Graceville For Graceville, Mr. Upchurch narrowed the decision down to Everglades and Okeechobee correctional institutions, both adult male facilities in Region 4. Everglades and Graceville are similar in population size and inmate profiles. Both facilities house over 1500 inmates. Both house large percentages of close custody inmates (Everglades –- 54%; Graceville –- 42%), and both house S3 inmates, although at different percentages. Mr. Upchurch eliminated Everglades for two reasons. First, based on its location, the facility has experienced high staffing turnover, which has increased hiring and training costs. Second, Everglades has a higher percentage of S3 inmates (24%) than contracted for at Graceville (18%).3/ The evidence was uncontroverted that S3 inmates increase per diem rates because of the cost of psychotropic drugs administered to those inmates. Mr. Upchurch also testified that the presence of S3 inmates can increase security costs. S3 inmates have more disciplinary problems, are more spontaneous, and are more difficult to manage. Mr. Upchurch testified that when a large number of S3 inmates are housed together, they “feed off one another” and create more disturbance. When asked specifically what percentage of S3 inmates would create an increased security cost, Mr. Upchurch estimated around one-third of the population. The number of S3 inmates housed at Everglades does not rise to that level. Mr. Upchurch selected Okeechobee as the facility most substantially similar to Graceville for comparison. The facilities have similar inmate populations –- both house over 1500 inmates with high percentages of medical grades 1 and 2 inmates, similar numbers of special needs inmates, and no wheelchair inmates. However, as emphasized by CCA, Okeechobee serves no S3 inmates. Mr. Upchurch focused on the design efficiencies of the two facilities. Both Okeechobee and Graceville house a large number of inmates in a small number of dorms. The six “T building” dorms at Okeechobee house up to 230 inmates each. The four main dorms at Graceville house approximately 400 inmates each. This design is intentional and creates efficiencies in the officer-to-inmate ratio. Many of the other DOC facilities have multiple smaller “open bay” dorms with less efficient operation.4/ More inmates in fewer dorms equates with lower security costs. Mr. Upchurch also noted that both Okeechobee and Graceville are stand-alone facilities, meaning only one correctional facility is contained within the perimeter.5/ Upchurch testified that, where possible, it is preferable to compare the per diem rates of stand-alone facilities. Mr. Upchurch disagreed with DOC’s selection of the Wakulla Correctional Facility as comparable to Graceville for the 2010 procurement process. The Wakulla facility is actually three different institutions within one: Wakulla Correctional, Wakulla Annex, and Wakulla Work Camp.6/ The facility operates three separate perimeter security details, three separate control rooms, and three sets of security supervisors. Mr. Upchurch testified that he objected to the selection of Wakulla because no adjustment was made to the Wakulla security per diem rate in 2010 to account for the higher security per diem at Wakulla. Thus, he disagreed that Wakulla was comparable. CCA assigns error to Mr. Upchurch’s choice of Okeechobee over Everglades as comparable to Graceville. CCA highlights that Okeechobee houses no S3 inmates, and, therefore, does not incur costs associated with psychotropic drugs for those inmates. Further, CCA notes that between the two comparable facilities, Mr. Upchurch chose the one with the lower total per diem rate -- $33.23 at Okeechobee versus $45.82 at Everglades. The higher per diem rate at Everglades is a factor in both a higher security per diem and a higher health per diem than at Okeechobee. Everglades’ security per diem is $28.00 while Okeechobee’s is $23.99. Higher recruiting and training costs due to turnover likely account for that difference. The health per diem at Everglades is also higher -- $17.14 compared with $8.64 at Okeechobee. The treatment of 24% S3 inmates likely accounts for this higher rate. Mr. Upchurch was aware that the contract with Graceville required the facility to house up to 18% S3 inmates. He did not ignore that requirement in selecting Okeechobee over Everglades. Mr. Upchurch was aware of the process of adjusting the per diem rate of the selected comparable facility to account for the specific programs under the contract. The cost of housing S3 inmates at Graceville was accounted for in the adjustment process. Mr. Upchurch selected Okeechobee as substantially similar to Graceville based upon his significant knowledge regarding the operations of all the DOC facilities. The choice was informed by the size, type, and location of the facilities, as well as the physical layout, size of dorms, efficiencies of staffing, and similarity of inmate profiles. For FY 2011-2012, DOC operated 30 adult male facilities. Of those, 18 had an average daily inmate population of 1500 or higher, as does Graceville. Both Graceville and Okeechobee are stand-alone facilities housing large numbers of inmates in few dorms, which increases staffing efficiencies. Overall, the undersigned does not find that Mr. Upchurch’s choice of Okeechobee was arbitrary, capricious, or erroneous. CCA further assigns error to DOC’s selection of substantially similar facilities because DOC did not undertake a formal process or analytical exercise to select those facilities. It is true that Mr. Upchurch did not review documentation on all 48 DOC correctional facilities, or otherwise consult DOC records, prior to narrowing the choices to two facilities similar to Bay and Moore Haven and two facilities similar to Graceville. Mr. Upchurch relied upon his 17 years of experience in state correctional facility operations, including his knowledge of the facilities’ design, layout, staffing and programming. Once he narrowed the choices, he requested and reviewed the inmate profiles for comparable facilities to the private facilities. As such, his selections were not arbitrary or capricious. Errors Calculating Program Costs Having identified Holmes as substantially similar to Bay and Moore Haven, and Okeechobee as substantially similar to Graceville, DOC began with each facility’s base security per diem plus administrative costs, and multiplied that figure by the contracted population for each of the contracted facilities. To that base operational cost figure, DOC added costs for health services, educational, substance abuse, and behavioral/transition services based on the draft contract in the ITN. DOC program staff specializing in each area calculated the cost to provide the contracted services. Errors were made in those calculations which were admitted to at the final hearing. The health services per diem of $7.82 added to the Bay security per diem was in error. The correct rate is $8.28. As such, the per diem rate published in Amendment 11 for Bay was incorrect. The health services per diem for Graceville was calculated incorrectly as $12.46 rather than $12.56. As such, the per diem rate published in Amendment 11 for Graceville was incorrect. Next, DOC calculated the mental health programmatic costs associated with housing S3 inmates at Bay and Moore Haven as required by the ITN. CCA alleges DOC made an error in calculating that amount because it relied upon FY 2011-2012 pharmacy expenditure data to determine the amount spent on psychotropic drugs, rather than relying on the data from the state accounting system known as FLAIR. Mark Tallent, DOC Director of Budget and Finance, testified that the pharmacy data is a more accurate accounting of the actual amount DOC spent on psychotropic drugs than the FLAIR data. The state accounting system appropriated approximately $11 million for psychotropic drugs and the FLAIR data shows DOC spent over $6 million out of that category. However, Mr. Tallent testified that DOC paid bills for other types of drugs, such as infectious disease drugs, out of that category, so the number is inflated and unreliable as it relates to psychotropic drugs exclusively. He testified that the pharmacy system is more accurate because it correlates each individual prescription with an inmate at a particular facility, allowing for an accurate accounting of the institutional costs for each specific type of drug. Mr. Tallent’s testimony is accepted as credible and reliable. DOC did not err when it calculated the per diem cost of psychotropic drugs based on the figure of $5,045,018 from FY 2011-2012 pharmacy data. Errors in Additional Adjustments The governing statute requires DOC to “calculate all the cost components that determine the inmate per diem in correctional facilities of a substantially similar size, type, and location that are operated by the Department of Corrections, including administrative costs associated with central administration.” § 957.07(1), Fla. Stat. The statute also directs DOC to make some adjustments to account for the public nature of the operation. DOC must include in the per diem an equivalent cost of services that are provided to DOC by other governmental agencies at no direct cost to the agency. Id. Also, the statute requires DOC to include as a cost savings in the calculation of the per diem rate “reasonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as a private rather than public entity,” including corporate income and sales tax payments. § 957.07(2), Fla. Stat. DOC made a number of additional adjustments to account for operations unique to public correctional facilities to arrive at a per diem rate more comparable to that of a private facility. While all these adjustments are not required by statute, they are examined for their accuracy. 12-hour shifts DOC adjusted the per diem to account for the cost savings realized at Holmes and Okeechobee by operating housing security personnel on 12-hour shifts. In calculating the 12-hour shift adjustment, DOC failed to add back in the cost of providing security staff at the private facilities associated with covering the 4 hours essentially unmanned when the cost of the 12-hour shifts were removed. In other words, DOC deducted too much cost when making this adjustment. As such, the per diems published in Amendment 11 for Bay, Moore Haven, and Graceville were incorrect. Work Squads DOC also adjusted the per diem by backing out the costs associated with the work squads at Holmes. A correctional facility work squad may perform services such as landscaping, maintenance, or other jobs both on the facility grounds and “outside the fence.” DOC removed the costs associated with work squads under the mistaken impression that none of the private facilities operate work squads. However, Bay and Moore Haven operate work squads in the community, which require supervisory security personnel. As such, the per diem amount published in Amendment 11 for Bay and Moore Haven was incorrect. Work Camps Holmes operates a work camp on its grounds, although it is physically separate from the main unit. The work camp requires both separate perimeter security and supervisory security. DOC adjusted the per diem rate for Bay and Moore Haven to exclude the security costs attributable to the work camp at Holmes. CCA argues that DOC erred by deducting only the security costs attributable to the Holmes work camp, but not other costs associated with the inmate population at the work camp, since private correctional facilities do not operate work camps. Mr. Tallent testified there is no way to back out the costs associated with the work camp at Holmes, other than the salaries and benefits of the security officers, because it is the same budget entity as Holmes Correctional Institution and the costs cannot be separated. No evidence was presented regarding the specific costs CCA expected to be removed, or the amount of those costs. Given the accounting structure of the DOC system, and the uncontested fact that security costs are the driving factor in calculation of correctional facility per diem rates, the undersigned does not find that DOC erred in removal of only the security costs at Holmes. Additional Alleged Errors CCA assigns error to DOC for failure to make additional adjustments to the per diem rates in the ITN. 1. Utility service charge Moore Haven pays a monthly utility service charge of $25,000, which is extraordinarily high. This service charge was not disclosed to CCA by the predecessor operator, GEO Group, and CCA did not take it into account in preparing its response to the 2010 ITN. No evidence was presented to establish that this utility surcharge is paid by the operator of Moore Haven because of its status as a private rather than public entity. If it were, DOC would be required by law to include it as a cost savings when calculating the per diem rate. Without that evidence, the undersigned cannot find that DOC erred by not adjusting the per diem to account for it. DOC has offered to make an adjustment in the per diem to account for this service charge. However, DOC’s offer to make an adjustment during negotiations does not prove an error on its part. 2. Lapse Factor/Vacancy Rate Next, CCA argues DOC erred by not adjusting the per diem rate to account for the DOC “lapse factor.” Contradictory evidence was introduced as to the meaning of “lapse factor” and the related term “vacancy rate.” Based on the preponderance of the evidence, the lapse factor is the percentage of DOC security positions which are temporarily vacant due to normal turnover, during which time recruitment and training of new officers occurs. Mr. Upchurch testified that DOC generally runs a 3% lapse factor. A vacancy rate, on the other hand, is the percentage of positions which remain intentionally unfilled due to a hiring freeze or other cost-saving measure. DOC operates with roughly an 8% vacancy rate as part of its budget cutbacks. For the purpose of the contract sought via the ITN, a vacant position is defined to occur “when the employee assigned to that position has resigned, been terminated, or is reassigned to another position.”7/ The terms of the draft contract do not allow the private correctional facility operator to run a blanket vacancy rate. In fact, the operator will incur a vacancy deduction for positions not filled with permanent employees or contracted staff within 30 days after a position becomes vacant, unless a waiver has been granted.8/ Petitioner argues that DMS erred in not adjusting the per diem rate to account for operation of the public correctional facilities with across-the-board vacancies. DMS testified, and has apparently agreed, that such an adjustment would be fair to account for vacancy rates above the normal 3% lapse factor. Moreover, Petitioner argues that the adjustment should be high enough to account for vacancies in actual posts at comparable institutions. Each warden at each public correctional facility has the flexibility to leave positions, or posts, unfilled on a given day based on the security priority of the post. DOC classifies posts into level 1, 2, and 3 priority positions. Level 1 posts are critical to daily operation of a shift. Level 2 posts are essential to the daily normal operation of a facility and allow all activities and programs to be marginally staffed. Level 3 posts are necessary for long term normal operations. In order to fill a level 1 post, a warden may move to a level 1 post an officer assigned to a level 2 or 3 post for that day; limit non-critical activities, such as recreation or work squads; or pay overtime to fill the level 1 post. Level 3 posts are generally utilized prior to level 2 posts to fill level 1 vacancies. Jinanne West, CCA Senior Director of Financial Planning and Analysis, analyzed the security post charts and daily rosters for the Holmes and Okeechobee facilities. She found that for FY 2011-2012, Holmes had an average security post non-fill rate of 17%, with level 3 posts vacant 73% of the time and level 2 posts vacant 39% of the time. During the same time period, Okeechobee ran an average non-fill rate of 26% with level 3 posts vacant 94% of the time and level 2 posts vacant 72% of the time. CCA’s argument, however, assumes private facilities are required to staff their facilities exactly as public facilities do. The draft contract included as part of the ITN does not bear out that assumption. With respect to security staffing, the contract provides, in pertinent part, as follows: Security Staff Utilization: CONTRACTOR shall develop and implement Security staff utilization in accordance with DC policy and procedure that includes, but is not limited to the following: A table of organization for the security staff for the maximum inmate population for the Facility and the position qualifications, job descriptions, pay levels, number of persons per post, distribution by shift, and security staff to inmate ratio in each housing unit by shift. 5.28.6.2 A detailed Security Post Chart outlining how key functions/duties will be staffed. 6.3 PERSONNEL. * * * CONTRACTOR will provide the Department with a finalized staffing pattern prior to the Service Commencement Date. Positions will be staffed with qualified employees in accordance with the staffing pattern attached hereto as in [Exhibit , to be provided by the CONTRACTOR]. CONTRACTOR’S staffing pattern must be submitted and approved by the Contract Manager prior to the Service Commencement Date. Any modifications to the position requirements or the staffing pattern must be approved in writing by the Contract Manager. * * * Sufficient certified security staff shall be employed at all times to assure that all positions identified as critical complement on the approved staffing pattern, are manned, at all times, for each shift, unless a departure from the staffing pattern has been approved in writing by the Contract Manager. . . . CONTRACTOR shall be required to fill critical complement positions by using overtime or other qualified staff members to ensure that staffing levels do not decrease below the established critical complement. (emphasis added) The private contractor is charged with developing the security staffing pattern for its facility, including the job descriptions, pay levels, number of persons per post, distribution by shift, and security staff to inmate ratio per housing unit. While the contract may penalize the private operator for vacant positions left unfilled after 30 days, no evidence was introduced from which the undersigned can infer that private operation lends itself to any higher than normal lapse rate. It is illogical to count as a cost to the private operator the savings realized by public sector cutbacks. The Legislature intends to ensure more efficient private operation by including the 7% cost-saving requirements. CCA also argued that DOC has an advantage because it maintains high vacancies in individual posts at the level 2 and 3 positions, which private operators cannot do without incurring a vacancy deduction penalty. Again, the contract does not bear that out. The vacancy deduction is tied to vacancies of positions due to resignation, termination, or reassignment. There is no evidence from which to conclude that private operators are separately penalized by running vacancies in individual posts at an institution. In fact, the contract specifically provides for flexible staffing of the private correctional facility similar to that of the public facility –- filling critical complement posts at all times, authorizing the movement of employees from other posts and the use of overtime if necessary.9/ 3. Reception and Medical Center Cost Next, CCA argues that the per diem rates published in Amendment 11 are artificially low and should be further adjusted to account for health care administered to inmates at public reception and medical centers (RMCs). RMCs are public correctional facilities which conduct initial health screening of inmates at intake and may provide medical care to existing inmates as well. Inmates at public institutions may receive health care at RMCs, but the state pays for that health care out of a budget separate from the institution’s budget. In other words, public correctional facilities may send an inmate to an RMC for care and not pay for that care out of the facility’s budget. CCA argues that since it will be charged with the cost to treat inmates at an RMC, the per diem rate should account for that difference as a savings to the public correctional facility. What CCA fails to include in the discussion is the fact that a private correctional facility operator is authorized to use the RMC as a cost-saving measure. Private correctional facilities are required to provide health care, including emergency care, to its inmates offsite only when the onsite Chief Health Officer determines an inmate cannot be treated properly in the facility itself. Only then is the private facility authorized to seek offsite hospitalization or other offsite treatment. The vendor is solely responsible for the costs of the offsite treatment, including the security costs of treating or hospitalizing an inmate offsite. The transfer agreement authorizes the private correctional facility to use the RMC, when space is available, as an alternative to minimize security costs for offsite treatment of the private correctional facility’s inmates. Under these facts, the undersigned cannot find that DMS erred by not including an adjustment to the per diem rate to account for treatment costs of private correctional facility inmates at RMCs. 4. PILOT Fees Next, CCA argued that the published per diem rates are in error because they were not adjusted to account for the fees paid by the private correctional facility to the local government as Payments in Lieu of Taxes (PILOTs). A PILOT is made to compensate local governments for the tax revenue lost by virtue of the public correctional facility property being used for a governmental function. DOC does not pay property taxes or PILOT fees related to Holmes, and no such fees are included in the Holmes per diem rates. However, the Bay and Moore Haven facilities are subject to PILOT fees required to be paid to local governments. Such fees are deducted from payments due to private correctional facility operators pursuant to the ITN, and are paid directly to the local governments assessing such fees. Pursuant to section 957.07(2), Florida Statutes, [r]easonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as private rather than a public entity, including, but not limited to, corporate income and sales tax payments, shall be included as cost savings in all such determinations. PILOT fee payments for Bay and Moore Haven are clearly included within the definition of section 957.07(2), Florida Statutes. Accordingly, PILOT fee payments for Bay and Moore Haven should have been included as an adjustment in the Amendment 11 per diem rate spreadsheets. Because PILOT fees were not included in the per diem rates published in Amendment 11 for Bay and Moore Haven, the rates were incorrect. 5. Major Maintenance and Repair Fund The ITN requires payments to be made by private correctional facility operators to the Major Maintenance and Repair Fund (MMRF). MMRF monies are used by the private facilities for maintenance, repairs, and renovations. Payments to the MMRF are deducted by DMS from payments due to private correctional facility operators, thereby reducing the per diem rate paid to private contractors. CCA argues that the per diem rates published in Amendment 11 are erroneous since those rates were not adjusted for MMRF payments. However, if the entire MMRF amount were credited to the private correctional facility, the per diem would not include any costs associated with regular repairs, maintenance, or other facility improvements. The amount paid into the MMRF is returned to the private correctional facility when repairs and maintenance are needed and conducted. There may be better ways to account for the maintenance costs of the private correctional facilities, but the undersigned finds no error in the per diem rate calculation on that basis. 6. Fleet Payments CCA contends the per diem rates should be adjusted to account for the requirement that the private correctional facility acquire a vehicle fleet for each of the three facilities, and that DMS erred in excluding the vehicle fleet costs for Holmes and Okeechobee when calculating the per diem rates. In calculating per diem rates, DMS excluded the one- time fleet cost of $573,986 associated with the purchase of the State vehicle fleet to operate the comparable public correctional facilities. The uncontroverted testimony of Mr. Tallent was that those costs were excluded because the fleets were acquired at the time the Holmes and Okeechobee facilities were first constructed. For example, the Holmes fleet was acquired 24 years ago. Because vehicle costs have changed dramatically during the intervening years, any adjustment to account for fleet cost would be insignificant. Additionally, Mr. Tallent testified that adjusting the per diem rate to account for the fleet charge would provide a windfall to a company, such as CCA, which was currently operating one of the facilities if it was awarded the contract again. At one point, CCA expressed that they were not actually concerned with whether the fleet acquisition cost had been incorporated into the per diem, but rather whether ongoing maintenance costs were included.10/ Mr. Tallent’s testimony was uncontroverted that the operating per diem of the public facilities includes all vehicle maintenance and fuel costs.11/ As such, the undersigned finds that DMS did not exclude vehicle fleet maintenance and fuel costs. The ITN requires private correctional facility operators to provide a fleet of vehicles for use at the Bay, Graceville, and Moore Haven facilities.12/ Given the greater weight of the evidence, the undersigned finds that excluding the fleet costs from the per diem rates incorporated as Amendment 11 was not erroneous. 7. Economies of Scale Last, CCA argues that the per diem rates should be adjusted to account for the economies of scale realized at Holmes and Okeechobee because these facilities are operated above design capacity. CCA maintains this adjustment is necessary since Bay, Moore Haven, and Graceville may not exceed design capacity under the contract. Mr. Upchurch agreed that an economies of scale adjustment would be appropriate if a reasonable way to calculate that adjustment could be determined. The 2005 Per Diem Workgroup was convened to establish per diem operating rates for private correctional facilities which would be comparable to operation of public facilities. The report provides, “[t]he workgroup has not attempted to estimate the impact of economies of scale that are not available to private facilities. The workgroup, however, was provided with two estimates ranging from $6.66 per day from the Auditor General’s office to $7.10 per day from Geo Group.”13/ Although the Workgroup report refers to the Auditor General's estimate as an attachment thereto, the estimate was not attached to the report introduced into evidence. Further, no testimony was presented relating to whether the estimates from either the Auditor General or GEO Group were reasonable or otherwise reliable. Given the lack of evidence on whether, and by what methodology, an economies of scale adjustment could be calculated, the undersigned does not find that DMS erred by excluding an adjustment for economies of scale. Accounting Error Jinanne West is CCA’s Senior Director for Financial Planning and Analysis. Ms. West has a master’s degree in accounting and is a certified public accountant. Prior to joining CCA, Ms. West worked for Arthur Andersen for three years, and then taught college accounting. Ms. West evaluated the spreadsheets used to calculate the public comparable per diem rates for Bay, Moore Haven, and Graceville and found fundamental accounting errors. To determine DOC’s per diem cost to operate the Bay and Moore Haven facilities, the Amendment 11 per diem rate spreadsheets divided Holmes’ operating costs by its average inmate population of 1,466 to arrive at a per diem rate, but then multiplied the per diem rate by the Bay and Moore Haven inmate populations of 985 to determine the daily costs associated with programming at those facilities. As a result, all operating costs attributable to Holmes were reduced by 33% (1,466 minus 985 divided by 1,466) to arrive at DOC’s projected operating costs to operate a 985-bed facility similar to Holmes. DOC then deducted from the remaining 67% of the Holmes operating costs 100% of the Holmes costs related to Holmes work squads and Holmes work camp staff, and additionally deducted 100% of the savings expected at Holmes due to the transition to 12-hour shifts. However, costs attributable to Holmes work squads and Holmes work camp staff and savings attributable to the 12-hour shift adjustment had already been reduced by 33% in the Amendment 11 per diem rate spreadsheets, given the difference in population between Holmes and the Bay and Moore Haven facilities. By deducting 100% of these costs and expected savings from the remaining 67% of the Holmes operating costs, DOC in effect incorrectly deducted 133% of Holmes’ costs and anticipated savings from the per diem rates. A similar error was found in the spreadsheet for Graceville. The inmate population at Okeechobee is slightly smaller than that at Graceville, leading to erroneous adjustments to the per diem for program costs and adjustments made to account for operational differences at Okeechobee. Due to this error in accounting methodology, the per diem rates published in Amendment 11 for Bay, Moore Haven, and Graceville were incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Management Services, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein, and withdraw ITN 12/13-010 for the Operation and Management of Bay Correctional Facility, Graceville Correctional Facility, and Moore Haven Correctional Facility. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 12th day of July, 2013.
Findings Of Fact At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.
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.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: l. The Petitioner, Terry Wooden, a black male, was hired by the Respondent, State of Florida, Department of Corrections, on December 5, 1980 as a Correctional Officer I at River Junction Correctional Institution. River Junction Correctional Institution (RJCI) is a secure facility responsible for the care, custody and control of certain inmates. Correctional Officers are assigned to security posts which are located throughout the facility. Some "inside" security posts are located within inmate dormitories. Outside perimeter security posts, which are small tower-like buildings, are located along the perimeter fence and are the last observation posts between containment and possible inmate escape. For security reasons, the Respondent prohibits sleeping on the job and requires its correctional officers to remain alert at all times. Supervisors (generally employees holding the rank of sergeant) often make "rounds" of the facility wherein security posts are visited to ensure that the officer on, duty at that post is alert. RJCI procedure requires that an officer on duty at a security post "challenge" a supervisor or other correctional officer who approaches the security post. When a supervisor enters a dormitory, the officer assigned to that post is required to challenge that person by immediately leaving the officer's station (located within the dormitory) to meet the approaching person. If the officer is on the telephone or engaged in some activity, it is acceptable for the officer to wave his hand to the approaching person or indicate in some other manner that he is aware that someone has entered the area. When a supervisor approaches an outside security post, the officer on duty is required to meet the approaching individual at the door of the building. Discipline of employees at RJCI is based on a progressive system. During the time the Petitioner was employed at RJCI, a sergeant was required to report a sleeping/unalertness violation by a correctional officer to the shift lieutenant (supervisor of all employees on a particular shift). There were no written guidelines and the reporting officer was required to exercise some discretion in determining whether he believed that an offense had been committed. On the first incident, the shift lieutenant would counsel the employee about the infraction, but no written report was made. On the second report of an offense to the shift lieutenant, a written report of the incident would be prepared by either the reporting officer or the shift lieutenant. The shift lieutenant would interview the employee about the alleged violation and refer the report to the department head (correctional officer chief). The department head would then submit the written report to the personnel manager with recommendations. Upon receiving a written report of an infraction from the department head, the personnel manager would gather information pertaining to the offense and give it to the superintendent, along with recommendations for disposing of the case. The superintendent would then schedule a "predetermination conference", confront the employee with the allegations and determine the disciplinary action to be taken. Prior to 1979 and until June 1982, L. C. McAllister, a white male, was superintendent at RJCI; from June 1982 to December 10, 1982, George Ragans, a white male, was acting superintendent at RJCI; from December 13, 1982 through August 1983, Ken Snover, a white male, was superintendent at RJCI. Each superintendent was responsible for determining the particular penalty to be imposed using guidelines set forth in Chapter 33, Section 9 of the Rules of Personnel. Generally, the employee's first sleeping/unalertness violation reported to the personnel manager, and ultimately, the superintendent, would result in counseling (oral reprimand); the second violation would result in a written reprimand; the third violation would result in a suspension; the fourth violation would result in a longer suspension or dismissal; and, the fifth violation would result in dismissal. Major Miles, a white male, is a department head and functions as the overall supervisor of correctional officers at RJCI. Miles assigns posts and shifts to correctional officers. Major Miles usually assigns new correctional officers to midnight shift after they complete orientation. After Petitioner completed his orientation period, he was placed on midnight shift (12:00 p.m. to 8:00 a.m.) and assigned to Post 23 in "G" dormitory. The Petitioner completed his one year probationary period on December 5, 1981. The Petitioner was assigned an overall rating of "satisfactory" by his shift supervisor, Lieutenant Carter, a black male. The evaluation stated that Petitioner got along well with supervisors and fellow employees. In December of 1981, Lieutenant Childs, a white male, became the Petitioner's shift supervisor. Initially, the Petitioner and Lieutenant Childs enjoyed a friendly relationship. Lieutenant Childs drove the Petitioner to work on several occasions and both men shared a common interest in sports. On December 13, 1981 an officer made a routine check of "G" dormitory and found Petitioner asleep in the officer's station. The Petitioner was counseled about this first infraction. Shortly after Petitioner's sleeping incident of December 13, 1981, Major Miles changed Petitioner's post assignment from dormitory to Perimeter Post 3. Major Miles changed Petitioner's post because several inmates had complained to him that a lot of stealing was taking place and that Petitioner was not watchful enough to prevent it. The inmates also complained that Petitioner's counseling style seemed like harassment. After Petitioner's post was changed from "G" dormitory to Perimeter Post 3, his relationship with Lieutenant Childs began to turn sour. The Petitioner was "concerned" because he believed that Lieutenant Childs had input into Major Miles' decision to reassign him. On May 10, 1982, Lieutenant Childs found the Petitioner unalert at Perimeter Post 3. The Petitioner received a written reprimand for this second infraction. On August 19, 1982, Sergeant Pollock, a black male, found Petitioner unalert while on duty at Perimeter Post 3. Sergeant Pollock reported the incident to Lieutenant Childs but suggested that Petitioner be counseled rather than "written-up". Sergeant Pollock believed that a lesser punishment might encourage Petitioner's improvement. Lieutenant Childs told Pollock to think about it for a couple of days. On August 21, 1982, Sergeant Parks and Sergeant Tharpe found Petitioner unalert at his post. When Sergeant Pollock discovered this incident, he changed his mind about his previous recommendation to Lieutenant Childs. Childs told Pollock to submit a written report. The Petitioner was suspended for 3 days for these third and fourth sleeping/unalertness infractions. On September 2, 1982, Lieutenant Childs completed an employee rating evaluation on Petitioner for the period September 1, 1981 to September 2, 1982. Petitioner was given an overall rating of "satisfactory", but Lieutenant Childs noted several areas of concern. Lieutenant Childs mentioned that Petitioner seemed to interpret counseling sessions "as personal threats conspired, for no bonafide reason to harass him." However, Lieutenant Childs went on to note that Petitioner's attitude and work performance was improving and that Petitioner was "making a definite and positive effort to correct his shortcomings." On October 28, 1982 an inmate escaped from RJCI. At the time of the inmate's escape, Petitioner was on duty at Perimeter Post-3 and William Chessher, a white correctional officer, was on duty on Perimeter Post 2. Major Miles, the department head, recommended that both men be disciplined for being unalert. Because the inmate's escape route took him through Perimeter Post 3's primary area of responsibility, Major Miles recommended that Petitioner be dismissed; Miles recommended that Chessher be reprimanded or suspended because the escape route was along Perimeter Post 2's secondary area of responsibility. On November 18, 1982, Acting Superintendent George Ragans held a predetermination conference concerning Petitioner's October 28, 1982 unalertness charge. Mr. Ragans found that the offense was substantiated but did not follow Major Miles' recommendation that Petitioner be dismissed. Ragans suspended the Petitioner for fifteen (15) days for this fifth sleeping/unalertness violation. Immediately following the November 18, 1982 predetermination conference, Ragans suggested to Petitioner that Petitioner should request a shift change. However, Petitioner explained to Ragans that he had a new baby at home, was taking college courses and did not want a shift change at that time. When Petitioner returned to work on December 16, 1982 after his fifteen (15) day suspension he had decided that he wanted a shift change. Petitioner went to the control room to find out how to submit a shift change request. In the control room, Petitioner spoke with a female officer concerning the procedures for requesting a shift change. The female officer agreed to type a shift change request for Petitioner. The female officer typed the request and gave Petitioner a copy. Shift change requests are directed to the shift lieutenant, in this instance, Lieutenant Childs, who then passes the request to Major Miles for final action. The female officer told Petitioner that she would put the original request for shift change in Lieutenant Childs' box in the control room. For some reason, Lieutenant Childs never received Petitioner's written request for shift change. In January 1983, the Petitioner spoke with the new superintendent, Ken Snover, regarding a shift change. Mr. Snover told Petitioner to proceed through the change of command and if he was still not satisfied, to return and speak with him again. One night, while on duty sometime after December 16, 1982 Petitioner asked Lieutenant Childs about a shift change. Lieutenant Childs told Petitioner that there were going to be a lot of changes made. Petitioner spoke to Major Miles on one occasion after December 16, 1982 and asked about a shift change. Major Miles told Petitioner to submit a written request. Major Miles never received a written request for shift change from Petitioner. Sometime prior to August 1, 1983, Petitioner was temporarily assigned to "G" dormitory and worked with officer Gano, a white male. Gano complained to Lieutenant Childs that Petitioner was sleeping on duty. Before Gano complained to Childs, Childs had received allegations of Petitioner being asleep from other correctional officers. Because of those complaints, Childs had instructed two sergeants to closely review Petitioner's dormitory work habits. On one occasion, the sergeants told Lieutenant Childs that Petitioner appeared to be asleep while on duty. On August 1, 1983, Lieutenant Childs instructed officer Gano to let him know if Petitioner was sleeping by giving a pre-arranged signal. Officer Gano found Petitioner asleep or "non-alert" and gave the pre-arranged signal. Lieutenant Childs entered the dormitory without Petitioner challenging him and found Petitioner unalert. Lieutenant Childs wrote a report on Petitioner's sixth sleeping infraction. Superintendent Ken Snover held a predetermination conference concerning Petitioner's August 1, 1983 unalertness charge. Snover ordered the Petitioner's dismissal, effective August 18, 1983. Steve Williams, a white Correctional Officer I, was caught sleeping on April 20, 1981 and was given an oral reprimand for this first offense. Williams was caught sleeping again on June 21, 28, and July 31, 1981. Because of the personnel manager's vacation a predetermination conference letter could not be sent until after the third occurrence and all three violations were addressed at the same conference. Williams was given a written reprimand for this second sleeping infraction. Thomas Jackson, a black Correctional Officer I, was caught sleeping on October 29, 1982 and was given an oral reprimand for this first offense. On May 13, 1983, Jackson was caught sleeping a second time and was given an official reprimand. On August 10, 1983, Jackson was caught sleeping a third time and was suspended for one week (5 working days). Jackson was offered and accepted a shift change, from midnight to evening shift. Dennis Edwards, a white Correctional Officer I, was caught sleeping in July 1982 and was counseled for this first offense. In Apri1 1983, he was caught sleeping again and was given a written reprimand. In July 1983, Edwards was suspended for 5 working days because of his third offense of sleeping while on duty. Larry Garrett, a black Correctional Officer I, was counseled for sleeping on duty for his first offense, but no documentation was made to his personnel file. On September 5, 1981 Garrett was caught sleeping a second time and was given a written reprimand. On December 3, 1981, Garrett was caught sleeping a third time and was suspended for three days. Garrett was offered a shift change, but declined because he was taking classes and had a newborn baby. On December 16, 1981, Garrett was caught sleeping for the fourth time and was terminated. Michae1 Weeks, a white Correctional Officer I, was caught sleeping on June 9, 1981 and was given a written reprimand for this first offense. On May 10, 1982 he was caught sleeping a second time and was given a written reprimand. Weeks was caught sleeping again on August 1, 8 and 10, 1982. Weeks was given a predetermination conference letter, but before the hearing was held, he was caught sleeping again on August 18, 1982. Weeks voluntarily resigned on August 18, 1982. Warren Harris, a black Correctional Officer I, was caught sleeping on November 29, 1979 and was given a written reprimand for this first offense. On June 13, 1981, Harris was caught sleeping again and was given another written reprimand. On September 9, 1981, Harris was caught sleeping for the third time and was suspended for three days. Harris was caught sleeping again on October 28 and 29, 1981 for his fourth offense. Harris was given a letter of termination, but resigned before the termination took effect. Harold Bailey, a white Correctional Officer I, was caught sleeping on June 14, 1982 and was counseled for this first offense. Bailey was caught sleeping again on July 17, 1982 and was given a written reprimand. On January 5, 1983 Bailey was caught sleeping on duty for the third time and was suspended for five days. On April 2, 1983, Bailey was charged with a fourth offense but Superintendent Snover found the allegations "unsubstantiated." Nevertheless, Bailey was counseled and documentation of the incident was placed in his personnel file. Bailey was offered a shift change but he refused it. Bailey's shift was later changed. In an effort to assist employees who were working midnight shift and having problems staying awake, the personnel manager and the superintendent would sometimes offer the employee a shift change or encourage the employee to seek a shift change. At various times, both black and white employees were offered, or encouraged to seek shift changes when they were having trouble on midnight shift. From time to time, correctional officers would submit requests for shift and/or post changes. Major Miles, the department head, usually made shift or post changes based on an individual's written request and the needs of the institution to have certain security posts staffed. Major Miles made some shift and post changes without a written request and over the objection of the employee if it was required by the needs of the institution. Shift and post changes at RJCI were given to both white and black employees in a substantially similar manner. Lieutenant Childs, upon receiving a request for a shift or post change, was required to forward the request to Major Miles for final action. Lieutenant Childs would forward a request for shift or post change with a favorable recommendation only if he believed the employee "earned" the recommendation by good performance on his current shift or post. As shift lieutenant, Childs was authorized to make some temporary post re-assignments for employees on his shift. During the last several months of Petitioner's employment, Petitioner was permanently assigned to Perimeter Post 3, but Lieutenant Childs temporarily assigned him to a post in "G" dormitory. While Petitioner was temporarily assigned to "G" dormitory, Lieutenant Childs became aware through "the grapevine" that Petitioner wanted to have Mondays and Tuesdays off, rather than Tuesdays and Wednesdays. Because different post assignments, carried different days off, a change in days off would have required a post change. Lieutenant Childs told Sergeant Pollock to tell Petitioner that he would arrange for Petitioner to have the desired days off as soon as possible if Petitioner's work performance improved. In January 1983 a new Department of Corrections directive required that certain correctional officers receive 160 supplementary hours of training. A majority of the staff at RJCI was required to complete the supplemental training. From January 1983 through August 1983, personnel at RJCI were engaged in the on-going training program. One set of training classes were scheduled from 9:00 a.m. to 1:00 p.mand another set of classes were scheduled from 6:30 p.m. until 10:30 p.m., five days a week. During the period from January 1983 through August 1983, shift and post changes were made primarily to allow correctional officers the opportunity to attend the training sessions as required. As superintendent of RJCI, Ken Snover conducted "predetermination conferences" wherein he was required to review allegations, determine whether or not the charges were substantiated and then decide what disciplinary action to take. Superintendent Snover did not apply a lesser standard of proof at predetermination conferences where Petitioner was charged with sleeping/unalertness violations than he applied when white officers were involved. On one occasion Snover found that the allegations of sleeping were not sufficient to warrant disciplinary action against two white employees, Harold Bailey and Walter Dean, where the allegation was made by one sergeant but denied by both correctional officers. At the predetermination conferences that Snover conducted where Petitioner was charged, the allegations were all substantiated by one or more individuals and denied only by Petitioner. Perimeter Post 3 as well as other perimeter posts, are isolated outside security posts and are generally not considered to be the most desirable security post assignments. Both black and white officers were assigned to Perimeter Post 3 and other perimeter posts. A slight majority of the correctional officers permanently assigned to perimeter posts were black. There was no indication that correctional officers were assigned to Perimeter Post 3 on a racial basis nor as a "set up" to achieve dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Terry Wooden. DONE and ORDERED this 8th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day September, 1986. COPIES FURNISHED::: Drucilla E. Bell, Esq. Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Marva Davis, Esq. 379 E. Jefferson Street P. O. Drawer 551 Quincy, FL 32351 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esq. General Counsel Florida Commission on. Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 3230 APPENDIX 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 21. The first sentence is rejected as a recitation of testimony. The second sentence is rejected as not supported by Competent substantial evidence. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 20 and 30. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 4. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence and/or misleading. Rejected as not supported by competent substantial evidence. 14A. Rejected as subordinate. 14B. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. 15A. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 15B. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 16A. Adopted in Finding of Fact 20. 16B. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 5. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as misleading and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 25 and 26. Partially adopted in Findings of Fact 27,^ 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 26, 27, 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 39, and 41. Matters not contained therein are rejected as subordinate, misleading and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as not supported by competent substantial evidence. (No paragraph 34). Partially adopted in Finding of Fact 43. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 48. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as subordinate. Adopted in Findings of Fact 12 and 15. Partially adopted in Findings of Fact 16 and 17. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 5 and 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. - Adopted in Findings of Fact 19 and 20. Partially adopted in Finding of Fact 17. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 27. Matters not contained therein are rejected as subordinate. Rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 27, 28 and 29. Adopted in Finding of Fact 44. Adopted in Finding of Fact 48. Partially adopted in Finding of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 39 and 47. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 36. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 33. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 38.
