The Issue The primary issue for determination is whether Dr. Jones violated provisions of Chapter 458, F.S. by violating terms of his probation, more specifically, those terms requiring attendance at Grand Rounds and monitoring by a local, Board certified pediatrician. If those violations occurred, an appropriate disciplinary action must be determined.
Findings Of Fact Respondent, Dr. Jones, is now, and has been at all relevant periods, a licensed physician in the State of Florida, having been issued license number ME0017104. His practice is located in Seminole, Florida. On April 21, 1986, a Final Order was entered by the Board of Medical Examiners, resolving by an amended stipulation, a twenty-count Administrative Complaint that had been filed against Dr. Jones on December 1, 1983. Pertinent provisions of the Final order included: Placement on probation for a period of five years commencing with the effective date of the order; Attendance at Grand Rounds weekly during probation at both All Children's Hospital in St. Petersburg, Florida and the University of South Florida in Tampa, Florida; and, Monitoring by a local Board-certified pediatrician, John H. Cordes, Jr., M.D., who was to make visits to Dr. Jones' office every two weeks and to randomly select 15 percent of Dr. Jones' medical charts to verify appropriateness of care and thoroughness of record-keeping. Dr. Jones was out of the country, in Antigua, when the order arrived, and it was in his office when he returned on May 4, 1986. Approximately two weeks later, around May 19th, Dr. Jones tried to call Dr. Cordes, the designated monitoring physician, and was told he was out of town. When he reached Dr. Cordes in early June, Dr. Cordes told him that under no circumstances would he serve as his monitoring physician and that he had written a letter to DPR advising them of such. After making some unspecified and unsuccessful efforts to locate a substitute, Dr. Jones contacted Lewis A. Barness, M.D., Chairman of the Department of Pediatrics at the University of South Florida. In a letter to Dr. Jones dated July 11, 1986, Dr. Barness agreed to review "about ten or fifteen percent of your charts on a biweekly basis." (Petitioner's exhibit #4) Dr. Jones was out of the country again the last two weeks of July, and the monitoring by Dr. Barness began on August 15, 1986. Dr. Barness was approved by the Board of Medical Examiners as a substitute on August 2, 1986. Dr. Jones continues to be monitored by Dr. Barness at Dr. Barness' office at the University. Dr. Jones brings his appointment book (although Dr. Barness never reviews it) and his charts, and Dr. Barness pulls, at random, fifteen to twenty percent of the charts and reviews them. Grand Rounds, lectures on pediatric medical topics, are held at 8:00 A.M. on Fridays at the University of South Florida Medical Center, and at 12:30 P.M. on Fridays at All Children's Hospital. Between his receipt of the Final Order and June 15, 1986, (the date specified in the amended complaint) Dr. Jones never attended Grand Rounds at the University of South Florida. He attended once, June 6th, during this period at All Children's Hospital. The basis for non-attendance is specified for each Friday session during the relevant period as follows: May 9, 1986 (the first Friday after Dr. Jones returned and saw the Final Order)--Dr. Jones' van was broken. His wife, a part-time employee at an interior design shop, was called in for work that day, so he did not have transportation. Further, he met with the mother of one of his patients at noon on this date. May 16 and 23, 1986--Dr. Jones' recently-widowed mother was visiting, and since she was also quite ill, he spent time with her. Further, Grand Rounds were cancelled at the University of South Florida on May 16th. May 30, 1986--Dr. Jones' van was again broken and his wife was called to work leaving him without transportation. June 6, 1986--Dr. Jones awoke with gastroenteritis, so he did not attend the morning session at the University of South Florida; he did attend the session at All Children's Hospital. June 13, 1986--Grand Rounds were cancelled at the University of South Florida on this date. Dr. Jones decided to take his children to Disney World as they lived out of state and were leaving the next day. June 15, 1986 was the close of the relevant period regarding attendance at Grand Rounds, according to the Administrative Complaint, as amended. From the testimony and evidence, I am unable to determine conclusively whether Dr. Jones has attended regularly since that date. Except for weekends and the trips out of country, Dr. Jones continued to practice medicine as a pediatrician between April 21, 1986 and July 1986, the date of the Administrative Complaint. He stipulated that he understood the terms and conditions of the Board's Order regarding probation. His testimony at the hearing revealed that he was thoroughly familiar with the details of the order. Nevertheless, he violated the terms of probation. Although he knew that the Board had approved the Stipulation in January 1986, and that the stipulation specified Dr. Cordes as the monitoring physician, he waited until the last minute (two weeks after he received the order) to contact Dr. Cordes about commencing the monitoring. While Dr. Cordes' refusal to participate is not attributable to Dr. Jones, the delay in obtaining a substitute could clearly have been eliminated with better planning by Dr. Jones. Technically, the monitoring conducted by Dr. Barness does not comply with the terms of the probation order, as Dr. Jones brings the charts to him for review. Dr. Barness has impressive credentials and is understandably unable to visit Dr. Jones' office every two weeks. However, Dr. Jones admitted that he never asked the Board to modify the terms of his probation in that regard. Dr. Jones' lack of judgment regarding the terms of probation is also reflected in his uncontroverted excuses for non-attendance at Grand Rounds. With the obvious exception of the cancellation of the lectures, the excuses fail to mitigate the violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: Finding that Respondent, Archbold M. Jones, M.D. violated subsections 458.331(1)(h) and (x) F.S.. Suspending Dr. Jones' license for three months (conforming to the approximate period that he practiced without supervision). Requiring Dr. Jones to appear before the Board with Dr. Barness to outline the details of the monitoring process and insure that proper review can be made at Dr. Barness' office, rather than Dr. Jones' office. Providing for Dr. Jones' immediate notification to the Board in the event Dr. Barness is unable to continue with monitoring consistent with the Board's direction. Outlining specific guidelines for excused non-attendance at Grand Rounds and providing for notification by Dr. Jones to the Board each time he fails to attend, and the reason for such failure. Providing that future violations will result in nullification of the stipulation and immediate proceeding on the original multi-count complaint. Providing that all other terms and conditions of the April 21, 1986 Order remain in full force and effect. DONE and RECOMMENDED this 6th day of July, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3920 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. Adopted in paragraph #1. 2. Rejected as unnecessary. 3. Adopted in substance in paragraph #2. 4. Rejected as unnecessary. 5-6. Adopted in substance in paragraph #2. 7-8. Adopted in paragraph #7. 9. Adopted in substance in paragraph #4. 10-11. Adopted in paragraph #9. Respondent's Proposed Findings of Fact 1. Adopted in paragraph #1. 2-3. Adopted in substance in paragraph #2. The closing date is addressed in paragraph #7, however the June 15, 1986, date relates only to attendance at Grand Rounds and not to the period during which monitoring did not occur. (See motions to amend complaint.) Adopted in paragraph #3. Adopted in paragraph #6. 7-15. Adopted in substance in paragraph #7. However, the characterization of a "medical emergency" in paragraph #9 is unsupported by the record, as are the characterizations, "justification" for not attending Grand Rounds and "legitimately prevented" from attendance. Respondent was not unable to attend Ground Rounds, except when the rounds were cancelled. He chose rather not to attend for various reasons which to him were more important than his attendance. Adopted in paragraph #4. Adopted in paragraph #5, except however the "diligence" of the search was not established by competent credible evidence. Adopted in substance in paragraph #5. 19-27. Rejected as irrelevant and unnecessary. Rejected as unsupported by competent, substantial evidence. Rejected as immaterial. Rejected as contrary to the weight of the evidence. Adopted in paragraph 9. Rejected as cumulative and unnecessary. The "diligence" is unsupported by competent credible evidence. Rejected as immaterial. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael I. Schwartz, Esquire Suite 100, Capitol Office Center 119 North Monroe Street Tallahassee, Florida 32301
Recommendation As stated above, the only issue remaining is mitigation. The only evidence of record is the late filed letters of character recommendation which were filed late by agreement of the parties. Based on the foregoing findings of fact, conclusions of law and considering the matters in litigation, the Hearing Officer would recommend that the Board suspend the license of Lonnie Collins for twenty-four months and suspend enforcement of the last eighteen months of that twenty-four months suspension on the following conditions: Collins satisfactorily participate in the drug rehabilitation program for the duration of the Board's probation. Collins be restricted from having any responsibility for controlled drugs. Collins be subject to any physical examinations or tests the Board might at any time order. Collins be required to have his employer notify the Board of his employment, his disclosure to the employer of his probations, of the limitation imposed by the employer on Collins' responsibility for narcotics. Violation by Collins of a condition of his probation may in the Board's discretion result in the immediate imposition of the remaining portion of the suspension or further prosecution under 464 to revoke his license. Should Collins' license be revoked, the Florida State Board of Nursing would not consider his application for reinstatement of his license or reexamination for licensure until the remaining portion of his suspension has run. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Robert W. Pope, Esquire 611 First Avenue North St. Petersburg, Florida 33701 =================================================================
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent is now and was at all times material to the allegations in the Administrative Complaint, a licensed Registered Nurse in the State of Florida, license number 71601-2. On April 13, 1982, Respondent's Florida nursing license was placed on probation. On April 13, 1982, the Florida State Board of Nursing entered a Final Order placing the Respondent's license on probation for two years, with the following terms and conditions. The licensee shall not violate any applicable federal or state laws, or rules or orders of the Board of Nursing. For the duration of the probationary period, the licensee will report immediately (within seven calendar days) either by telephone or letter to his/her probation supervisor assigned by the Department, and by certified registered mail to the Department of Professional Regulation, Attention Administrator, Office of Investigative Services, 130 North Monroe Street, Tallahassee, Florida 32301, by license number and licensed name, any change in Respondent's residence address; any change in Respondent's employment (including address); and any arrests. If employed as a nurse, the licensee will be responsible for causing reports to be fur- nished by his/her employer to the Board or the probation supervisor, relative to the licensee's performance, and any problems. These reports shall be submitted every 3 months during probation as scheduled by the probation supervisor. The licensee shall not consume alcohol while on duty as a nurse, nor function as a nurse while under the influence of alcohol. The licensee shall obtain/continue counseling with a psychiatrist, psychologist or other recognized drug/alcohol rehabilita- tion program, and shall cause progress reports to be furnished to the Board or probation supervisor every 3 months during treatment as scheduled by the probation supervisor. Any deviation from the requirements of this probation without the prior written consent of the Board or the Department shall constitute a violation of this probation. Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing in this state shall be immediately and automatically suspended pending the licensee's appearance before the next Board meeting, or such subsequent meeting as may be mutually agreed upon between the licensee and the Department. The licensees will be given notice of the hearing and an opportunity to defend. The Petitioner assigned Investigator Gerry Padgett to be Respondent's probation supervisor. During 1982, the Respondent satisfactorily complied with the terms of her probation. During the latter part of January, 1983, Respondent received a letter from the Board of Nursing indicating that she had not complied with the probationary terms. After receipt of the letter, Respondent went to see her probation supervisor, who in turn informed the Board of Nursing that the Respondent was, in fact, in compliance with the probationary terms. At that meeting in late January 1983, between Respondent and her probation supervisor, the latter told Respondent that she would be seeing her in three months. Prior to that meeting, Respondent had made appearances in her probation supervisor's office every three months. The next date which the probation supervisor had scheduled to see Respondent was April 1, 1983. There was no clear evidence adduced to show that the scheduled date of April 1, 1983, was communicated to Respondent, and she denied being told specifically to return on April 1, 1983. However, Respondent acknowledged that she knew that she was to see her probation supervisor sometime during April 1983. For several months prior to April 1983, Respondent had been employed by Indian River Memorial Hospital. The last day that Respondent worked at Indian River Memorial Hospital was April 19, 1983. On April 27, 1983, the Respondent admitted herself to the Heritage Health Corporation, an alcohol treatment program located in Sebastian, Florida, to he treated for alcohol abuse. At that time, according to the Respondent's own testimony, she could not have functioned as a nurse due to alcohol impairment. The program in Heritage Health Corporation was a 30 day in-patient alcoholic rehabilitation program. During the Respondent's stay at the Heritage Health Corporation, her employment with Indian River Memorial Hospital was terminated. The Respondent did not report her change in employment status nor her change in residence or entry into an alcohol rehabilitation program to her probation supervisor as required by the above quoted order of probation. On May 18, 1983, after not having beard from the Respondent, her probation supervisor attempted to locate her, and did in fact locate Respondent at the Heritage Health Corporation facility. At that time, Respondent informed the probation supervisor that her employment with the Indian River Memorial Hospital had been terminated. The meeting between the probation supervisor and Respondent on May 18, 1983, was the last time until the formal bearing in this matter that the Respondent reported any information to her probation supervisor. On or about June 20, 1983, the Respondent moved her residence address from Vero Beach to Sebastian, Florida. Three weeks prior to the formal bearing in this matter, the Respondent moved her residence address from Sebastian, Florida to Orlando, Florida. Neither changes of residence address were forwarded by Respondent to her probation supervisor or to the DPR administrator, as required by the order of probation. However, she reported the move from Vero Beach to Sebastian, Florida directly to the Board of Nursing office in Jacksonville. Respondent never received written consent to deviate from the terms of the order of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent's license as a Registered Nurse be suspended until such time as she demonstrates to the Board of Nursing her fitness to practice nursing. This demonstration should include a psychological or psychiatric evaluation, along with a recommendation from a licensed mental health care professional, that Respondent be reinstated. Upon reinstatement, Respondent should be placed on probation with generally the same terms as her previous probation, along with any other reasonable terms, such as urine or blood screens as appropriate under the circumstances. DONE and ENTERED this 16th day of March, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1984.
The Issue The issue to be determined is whether the specifications for Request for Proposals number FDC RFP-17-108, “Community Release Center (CRC) in Orange County, Florida,” are contrary to the governing statutes, rules or policies of the Florida Department of Corrections (the Department or DOC).
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: Petitioner is a vendor that currently holds contracts with the Department to provide work-release beds and transitional work-release beds throughout the state of Florida and holds a contract providing these services in Orange County, Florida. Its Orange County facility is referred to in this proceeding as Orlando Bridges and qualifies as a community release center. Bridges is a vendor who would, potentially, bid on the request for proposal at issue in this case. Petitioner has standing to challenge the specifications of RFP-17-108, and there is no dispute that Petitioner timely filed its notice of intent to protest the specifications; timely filed a formal written protest; and timely filed the required protest bond. On August 11, 2016, the Department issued FDC RFP-17- 108, “Community Release Center (CRC) in Orange County, Florida.” A community release center is defined by Florida Administrative Code Rule 33-601.602(1)(n) as “a correctional or contracted facility that houses community custody inmates participating in a community release program.” The RFP seeks proposals from vendors to provide: A facility located in Orange County, Florida, with qualified staff to deliver a Community Release Center (CRC) for male inmates. Services will include operation of each facility, security, supervision, housing, care, meals, employability skills, licensed substance abuse outpatient and after care services, cognitive-behavioral interventions, parenting, family reunification, anger management, mentoring, budgeting, victim awareness and related transition services to enhance the inmate’s successful reintegration back into society. The Department intends to award one contract in Orange County for up to seventy-five (75) male beds. The number of awarded beds will be determined by the Department based on the Vendor’s response to this RFP. The Department reserves the right to increase or decrease the bed allocation based on the Department’s need, and the appropriation of funds. The contract currently held by Bridges for its Orlando Bridges facility, Contract #C2489, was executed in 2008, and has been renewed and extended a number of times. It is scheduled to expire December 31, 2016. Under the current contract, Bridges provides up to 54 work release beds and up to 84 substance-abuse treatment transition beds (transition beds). The Department currently pays, on average, $21 per day, per inmate, for work- release beds. It pays an average of $52 per day for transition beds. Orlando Bridges also holds other contracts with the Department: according to Petitioner, it has slightly under 400 inmates currently, with 134 beds under Contract #C2489; 100 beds under a probation diversion program; and the remainder under other work-release programs. The difference in cost between transition beds and work- release beds reflects the difference in services currently provided. For transition beds, inmates are placed at a facility, such as the Orlando Bridges campus, which operates as a modified therapeutic community. Depending on the terms of the governing contract, the facility can either be provided by the vendor, as is the case with Orlando Bridges, or can be a Department-owned facility operated by a private vendor. The inmates assigned to transition beds receive intensive therapeutic services, including education, substance-abuse treatment, vocational training, employment and re-entry assistance, depending on the individual inmate’s needs. The inmate focuses on treatment during this portion of the program. Once the treatment portion of the program is completed, inmates are transferred to work-release beds, where the goal is obtaining and maintaining work-release employment. Inmates receive some additional treatment while in work-release beds, but the focus is on employment. Orlando Bridges is a 15-acre campus that could house up to 400 inmates. It is not a secure facility: it does not have a secured perimeter and does not have armed guards. Under Contract #C2489, Orlando Bridges is assigned a “parent institution,” which is located in the same geographic area and provides oversight and limited classification services to Orlando Bridges. The contract also provides for the transportation of inmates in the event that medical care is needed, because medical services are not included within the scope of the contract. Contract #C2489 also delineates the process to be used should an inmate be terminated from the program or released from custody. Specifically, Contract #C2489 provides: Termination from the Work Release/Program Center All behavior problems, escapes, disciplinary problems, unusual incidents, special medical issues and requests for inmates to be removed from the program shall be reported to the OIC of the parent institution. The Department is responsible for terminating inmates from the Substance Abuse Transitional/Work Release (Re-entry) Program Center. An inmate may be terminated and returned to the physical custody of the Department from the Substance Abuse Transitional/Work Release Program Center when it has been determined that to do so is in the best interests of the Department, the Substance Abuse Transitional/Work Release (Re-entry) Program Center, and/or the inmate or for any other compelling reason related to public safety. Pursuant to this Contract and Department Policy, the Warden of the parent institution or other Department staff is authorized to approve an inmate’s termination from the Transitional Work Release/Program Center. If it becomes necessary to terminate an inmate from the program, Department staff or other law enforcement staff shall assume physical custody of the inmate and transport the inmate to an appropriate facility. . . . Release of Inmates from the Custody of the Department of Corrections All inmates placed by the Department into the Contractor’s Substance Abuse Transitional/Work Release (Re-entry) Center shall remain in the Substance Abuse Transitional/Work Release (Re-entry) Program Center program until their sentence of incarceration is completed, or until returned to the Department’s custody by reason of termination from the Substance Abuse Transitional/Work Release (Re-entry) Program Center program. (emphasis added). The Department currently has contracts for five facilities providing transition beds like those provided under Contract #C2489. The Department also has contracts that provide only for work-release beds, and has contracts of this type with Petitioner. For example, Turning Point in Broward County is a contract for 99 work-release beds and is a Bridges-owned facility. RFP-17-108 seeks proposals for work-release beds only, although 21 more than are currently provided through Contract #C2489. The Department is not seeking transition beds, with their more intensive treatment component, as a part of this RFP. As a result, should Bridges choose to bid on this RFP, it would provide services for 63 fewer beds than it provides under the current contract, at an intensity level that is higher than the current work-release beds and lower than the current transition beds. While the RFP seeks proposals for work-release beds as opposed to transition beds, there are some similarities between the RFP and the current contract because both deal with services provided at a community release center. For example, the RFP specifies that there will be a correctional institution that will be designated as a parent institution to provide oversight and limited classification services, and has many of the same provisions with respect to licensure, facilities, staffing and oversight. The RFP requires the vendor to provide job development, placement, and retention services, as did previously issued contracts providing for work-release beds. However, the RFP also requires bidders to provide readiness programs and services to address individual criminogenic needs of the inmate, such as development of independent living skills and economic self- sufficiency; mentoring; budgeting; anger management; cognitive- behavioral interventions; educational and literacy skills development; parenting; family reunification; life skills; victim awareness; and outpatient and aftercare substance-abuse services. Similar to Contract #C2489, there are provisions within the RFP that refer to inmates being “returned to the physical custody of the Department.” See, for example, sections 2.8.1 (Facility Intake) and 2.11.1.14 (Inmate Termination from the CRC). RFP-17-108 is an initial step in a change of focus for the Department when it comes to providing substance-abuse treatment and work-release services to inmates. The overall vision is identified in Joint Exhibit 3, a document entitled “Timing of Effective Intervention.” Joint Exhibit 3 is a document prepared by Maggie Agerton at the request of her supervisor, Abraham Uccello, to address how best to use the Department’s existing resources to provide the greatest amount of treatment to the most inmates. It is an internal document that has not been formalized. Mr. Uccello, who requested that the document be prepared, described Joint Exhibit 3 as a work product document and did not know what the final version would look like. Department staff testified that the Department is looking at a new approach to providing work-release and substance- abuse services, because as a result of inmate classifications based upon the nature of the offenses committed, only nine percent of the inmate population qualifies for placement in the community.1/ The Department has a budget of approximately $27 million devoted to contracted substance-abuse treatment. Of that $27 million, approximately $15,489,548 (57%) of the budget is currently allocated for 688 transition beds statewide. Work- release slots with related treatment represent $789,927 of the budget. The remainder of the budget ($10,933,333) is used to serve the needs of the remaining 91% of the inmate population. The Department’s concern is that more resources should be used to treat moderate to high-risk inmates, because best practices studies show that these inmates are the one that most need the services to reduce recidivism. The Department’s data indicates that approximately 62% of the inmate population have an identified need for substance-abuse treatment, and under the current model, a significant percentage of the inmates with an identified need is being untreated. In light of these concerns, the Department intends to move some, but not all, of its substance-abuse treatment “behind the fence” (i.e., in secured institutions) in order to reach a greater number of inmates. It also seeks to expand the number of work-release slots, with a “substance-abuse treatment overlay” for those expanded slots. As described in Joint Exhibit 3, the proposed approach is to provide as much intervention as possible while the inmate is housed in a secure facility; to require inmates mandated for substance-abuse treatment to receive it prior to being placed in work release; to use work release as a “privilege and incentive for hard work in core programming and readying oneself for release”; and to consider work release as the final transitional step between readiness and community transition. The primary focus of work release would be to obtain and maintain paid employment. Participants, however, would be given the opportunity to complete any domain programming that was not completed at the secure facility. To that end, Joint Exhibit 3 identified requirements from prior requests for proposals and added some additional requirements for the work-release beds they would be seeking. The working document provides: In previous solicitations, proposers were required to provide, at a minimum: A facility/site which provides housing in a clean, safe environment; Sufficient qualified staff to operate the facility and programs; Three (3) nutritious, balanced meals per day prepared on site and/or including preparation of sack lunches for inmates employed away from the CRC during scheduled meal times (if the meal cannot be consumed on site for these inmates); Job development, job placement and job retention services; Access to transportation as required by Department rules and regulations; Personal financial management instructions; and Licensed outpatient substance abuse treatment, intervention, and aftercare. In the current solicitation, the proposer must also provide readiness programs and services to address individual criminogenic needs of the participants. These services are intended to facilitate successful reintegration in the community upon completion of incarceration through development of independent living skills and economic self-sufficiency gained through meaningful employment. These include: Cognitive-behavioral interventions; Parenting; Family reunification; Anger management; Mentoring, budgeting; Victim awareness; Compass 100; and Related transition services and referrals. Readiness programming is based on individual needs and will be provided in instances where the participant did not receive the required level of service prior to placement at the CRC. The terms of the RFP are consistent with the approach outlined in Joint Exhibit 3. RFP-17-108 has no per diem rate specified that proposers are required to meet. The Department has left the cost open so that it can determine whether this approach is financially feasible. If a vendor believes that there are extra costs to run a facility as bid, the vendor can include those costs in the price it submits. If all bids come back too high, the Department will have to determine whether they can afford this approach. The stated intention of the Department is, as current contracts for transition beds expire over the course of the next four years, the contracts will be allowed to expire or will perhaps not be renewed. No existing contract is being terminated. The goal is to replace the 688 transition beds with expanded work- release beds in the community. While substance abuse would then, for the most part, be provided behind the fence, even if the strategy is characterized as “moving” these 688 beds, the move would affect approximately .6 percent of the Department’s current prison population. Like all state agencies, the ability for the Department to implement programs depends upon the Legislature’s willingness to fund them. Petitioner contends that the Department is not free to pull back transition beds and move substance abuse treatment and more intense therapy behind the fence, because of a proviso in the Department’s budget. To support this contention, they point to a section of the Department’s budget from the General Appropriations Act (GAA) for 2016, House Bill 5001, submitted as Joint Exhibit 17. The specific line item from which the current funding for substance abuse treatment is authorized is line item 633. Section four of the GAA for 2016 contains the following proviso: From the funds in Specific Appropriations 598A through 755, the Department of Corrections shall, before closing, substantially reducing the use of, or changing the purpose of any state correctional institution as defined in section 942.02, Florida Statutes, submit its proposal to the Governor’s Office of Policy and Budget, the chair of the Senate Appropriations Committee, and the chair of the House Appropriations Committee for review. Based upon this limitation, Petitioner contends that the Department’s issuance of the RFP signals its intention to close, substantially reduce the use of, or change the purpose of a state correctional institution, by substantially reducing and changing the purpose of the facility at Orlando Bridge. Notably, the proviso contains no mention of substance abuse treatment or transition beds. Mr. Uccello testified that, at the request of Kim Banks, the Department’s CFO, and Steven Fielder, DOC’s Chief of Staff, he made a presentation regarding the overall developmental plan for in-prison programs and treatment in a general meeting between the Office of Policy and Budget (OPB and House and Senate Appropriations staff. He understood that it was an informational meeting, and did not believe that approval of the proposal was required. There was no testimony to indicate that the proposal was presented to the chairs of the House and Senate Appropriations Committees. Petitioner’s President and CEO, Lori Constantino-Brown, state that this RFP, compared to Orlando Bridges’ current contract, would require changes to all of Bridges’ policies and operational procedures, would result in layoffs of her employees, and would limit the number of inmates served in a community setting. She also testified that there are additional costs needed to run the facility as proposed, and providing the services with the limited number of beds proposed, would not be cost- effective for any vendor. Ms. Constantino-Brown acknowledged that Bridges does not have a right to provide transition beds as they exist under the current contract, and that an award to a different bidder would be lawful. She also acknowledged that if Orlando Bridges closed on January 1, 2017, because its contract expired, that would also result in staff layoffs. The same result would occur should another vendor successfully bid on the RFP. Petitioner has not demonstrated that the specifications of the RFP are arbitrary and capricious. The specifications are consistent with the Department’s intended restructuring of substance-abuse treatment and work release opportunities for inmates. Whether or not the plan is ultimately successful, the thought process behind the specifications included in the RFP is to address legitimate concerns for providing the most treatment to the greatest number of inmates. Petitioner stated at hearing that it was not challenging the policy articulated in Joint Exhibit 3, but spent a significant amount of time trying to establish that the changed strategy would not be less costly. However, the Department staff candidly testified that at this point, it is not possible to determine whether there would be any savings, because they do not know what vendors would identify as a price until they get responses to the RFP. Petitioner has not demonstrated that the RFP is contrary to competition. While there was some testimony that the requirements of the RFP may be cost-prohibitive for Bridges to respond, there was no real evidence to indicate that it created an advantage for any vendor over others. While Petitioner claims it is not challenging the policy change itself, it points to no term in the RFP that it finds offensive. The challenge, instead, is to what is not included: transition beds like the ones Bridges provides now. It contends that this omission amounts to the closure, substantial change in services, or substantial reduction in services provided by a state correctional institution, and therefore violates the proviso limitation in the General Appropriations Act. No term or specification in the RFP closes a state correctional institution. No term or specification in the RFP substantially reduces the use of a state correctional institution. While there is some reduction in the number of beds provided for in the RFP, there is also a proviso allowing for an increase in the number of beds, depending on need and funding. Moreover, the beds included in Contract #C2489 do not represent all of the beds at Orlando Bridges. No term or specification in the RFP changes the purpose of any state correctional institution. The purpose of Orlando Bridges, under its current contract, is to provide readiness programs to assist inmates to prepare for re-entry in society. RFP-17-108 seeks proposals for readiness programs, albeit using a restructured program model. While the vehicle may be different, the purpose remains the same: preparing inmates for release with a goal of lower recidivism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections amend the RFP in a manner consistent with the stipulation of the parties in the Joint Pre-hearing Statement, i.e., by removing the second sentence of section 1.4 of the RFP, and by removing section 2.5.19 of the RFP. It is also recommended that the Department enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of November, 2016, 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 23rd day of November, 2016.
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the evaluators of the subject request for proposals (RFP) were qualified under the applicable law and RFP criteria to evaluate the proposals.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. On November 23, 2009, the Department issued RFP #P2062 (the RFP), requesting proposals from prospective providers to operate 16 IDDS programs in 16 different judicial circuits in Florida: Circuits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 18, and 20. The RFP's Statement of Services provided that proposers would be responsible for designing, implementing, and operating an IDDS program in each of the 16 listed judicial circuits. The RFP described an IDDS program as a diversion program targeting a specific population of juvenile offenders determined to be at risk of becoming serious and chronic offenders. The goal of IDDS is to facilitate a positive change in youth behavior and criminal thinking and provide the youth with the tools necessary to avoid recidivism or future criminal involvement. Prospective providers were instructed to propose services that included specified minimum components, including scheduling, supervision, and monitoring of compliance with court-ordered sanctions, such as community service, curfew, and restitution; random urinalysis monitoring; provision of counseling, anger management education, educational training, and vocation services to age-appropriate youth; and substance abuse prevention and treatment services. The RFP provided that proposers were to submit a single response to address one or more circuits in which they intended to propose operating an IDDS program. However, if a prospective provider proposed to operate IDDS programs in more than one circuit, its response had to include separate sections on staffing, prices, and budgets for each circuit/program proposed. The deadline to file challenges to the specifications of the RFP was within 72 hours of its posting. No challenges to the RFP's specifications were filed within the required 72-hour window. Petitioner, Intervenor, and two other proposers' timely submitted proposals to operate an IDDS program in Circuit 17, in response to the RFP. Following its evaluation of proposals, on March 2, 2009, Respondent posted its notice of agency action, indicating its intent to award the contract in Circuit 17 to Intervenor, whose proposal received the highest score of 1549.78 points. Juvenile Services Program, Inc., was ranked second, with 1454.01 points. Petitioner was ranked third, with 1327.57 points. Lutheran Services of Florida, Inc., was ranked fourth, with 986.43 points. Petitioner's timely challenge to Respondent's intended agency action in Circuit 17 is limited to the issue of whether the evaluators were qualified under the applicable law and RFP criteria to evaluate the proposals. The standard established by "the applicable law," section 287.057(17), Florida Statutes, is that the agency must appoint "[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The RFP criteria contain the following in the RFP Addendum, in the form of a question from a prospective provider and Respondent's answer: Q: Who will be evaluating the proposals[?] Will they be fully knowledgeable about IDDS programs and how they are run[?] A: The proposal will be evaluated by a team of DJJ staff who are fully knowledgeable about IDDS programs and how they are run. These people are chosen for their particular skills, knowledge and experience. They have also been chosen because of the Department's confidence in their ability to score proposals both independently and fairly. Amy Johnson, Respondent's chief of contracts, has the responsibility for supervising the Department's contracting and procurement process and ensuring compliance with section 287.057. The Department goes beyond the statutory requirements by specifically training potential evaluators in the competitive procurement process with a focus on the process itself, including evaluation and scoring of proposals. Ms. Johnson has in the past conducted this training and remains responsible for ensuring that evaluators are trained. A number of years ago, Ms. Johnson developed an internal means of identifying potential evaluators who were considered qualified to evaluate specific program areas and services that might be the subject of competitive procurements. This process involved identification by persons in charge of the various program areas of individuals they believed had sufficient experience and knowledge to evaluate certain types of programs and services. The program area representatives would submit names of individuals considered qualified to evaluate the various programs and services within their program area, along with a brief biographical statement describing the individuals' background and experience. Added to this substantive or programmatic categorization of potential evaluators was the qualification of having been trained in the competitive procurement process. Ms. Johnson developed a spreadsheet to maintain the results of the two-step qualification process. The spreadsheet lists individuals with a summary of the information obtained from the program area representatives, including the categorization of the types of programs and services the individuals are considered qualified to evaluate based on their background and experience. The spreadsheet also identifies the most recent date on which each individual completed training in the competitive procurement process. The spreadsheet document has been maintained over time to keep the running results of the pool of evaluators identified through the two-step qualification process. Elaine Atwood is the Department's contract administrator. She has assumed responsibility for conducting the training sessions for potential evaluators in the competitive procurement process, as well as the responsibility for maintaining the spreadsheet of the evaluator pool. Ms. Atwood served as the procurement officer for RFP #P2062. Her duties included working with the program area to put the RFP together, posting the RFP on the Department's website, receiving the proposals, and conducting all other activities that were part of the procurement process. The "program area" for RFP #P2062 is the Office of Probation and Community Intervention, and Paul Hatcher was the designated program area representative. IDDSs are one category of services within the Probation and Community Intervention program area. Ms. Atwood worked with Mr. Hatcher to address programmatic issues for this RFP. Mr. Hatcher identifies individuals who are considered qualified to conduct evaluations for RFPs involving programs or services falling under the umbrella of his program area. For the current pool of potential evaluators, Mr. Hatcher submitted names of individuals who were substantively qualified for programs and services falling under his program area and who could be placed on the evaluator pool spreadsheet for those categories of programs and services. However, Mr. Hatcher does not select the individual evaluators for a particular RFP. That is because selection of evaluators for a particular RFP is, by design, a random process, using the information about evaluator qualifications that is maintained on the spreadsheet.4/ Responses to RFP #P2062 were submitted in three volumes: Volume One was the "technical" proposal setting forth the prospective provider's organizational structure and management capability, the proposed program services, and proposed staffing; Volume Two was the "financial" proposal, including the proposed price sheet and budget and the provider's Supplier Qualifier Report prepared by Dun & Bradstreet; and Volume Three was the "past performance" section to demonstrate the provider's knowledge and experience in operating similar programs. Ms. Atwood conducted the review and scoring of the financial proposals in a fairly mechanical process of pulling out numbers from each cost proposal and, also, pulling Dun & Bradstreet numbers for the prospective providers and putting them on a spreadsheet. No evidence was presented that Ms. Atwood was not sufficiently qualified to conduct this review. Mr. Hatcher conducted the evaluation of prospective providers' past performance. No evidence was presented that Mr. Hatcher was not sufficiently qualified to conduct this review. Three evaluators were randomly selected from the pool of potential evaluators designated for IDDS reviews to evaluate and score the "technical" component of responses to RFP #P2062: Karen McNeal, Jeffrey Balliet, and Cheryl Surls. Of these three evaluators, Petitioner presented the testimony of only the first two, and Petitioner directed its qualification challenge to only one, Ms. McNeal. Ms. McNeal is employed in the Department's Probation program area. She is responsible for the oversight of the Duval Assessment Center that screens youth to determine their detention or release. She has held that position since July 1, 2009. Before that position, she was detention superintendent for the St. John's Juvenile Detention Center. She has been with the Department since October 2001. Before joining the Department, Ms. McNeal was a program analyst for ten years with the Department of Health and Rehabilitative Services. Ms. McNeal went through a four-week juvenile probation officer certification course before assuming her current position in Probation. That Probation training course included a review of the various prevention programs falling under the probation program area umbrella, including IDDS. However, Ms. McNeal does not have specific programmatic experience with IDDS. Ms. McNeal had not previously served as an evaluator on an RFP, before this experience. In accordance with the Department's internal procedure, Ms. McNeal underwent training by Ms. Atwood in the competitive procurement process on November 17, 2009. Mr. Balliet, the other member of the technical component evaluation team who testified, has held the position of contract manager for the Department since 2006. Before that time, he supervised a contract management unit at the district level and, also, served as assistant chief probation officer for Circuit 5, where he monitored compliance of IDDS programs in that circuit. Mr. Balliet has undergone training in the competitive procurement process multiple times. Although Mr. Balliet has had specific experience with IDDS programs, he did not think that such specific experience was necessary to evaluate an RFP dealing with IDDS programs, if one had a background that would otherwise allow for an understanding of the process. As noted above, the third evaluator on the three-person evaluation team for the technical component was Ms. Surls, who did not testify. Petitioner did not present any evidence to establish that Ms. Surls was not qualified to serve as an evaluator. Beyond the sheer difference in name of the particular services addressed by this RFP--IDDS versus other programs and services falling under the umbrella of the Probation and Community Intervention program area, Petitioner failed to establish that the experience and training Ms. McNeal has obtained over the years and, particularly, since assuming the oversight position for Duval Assessment Center, is not appropriate or sufficient to qualify her to evaluate proposals for IDDS. Petitioner presented no evidence that the components of an IDDS program are substantively dissimilar from the components of the services and programs in which Ms. McNeal has attained direct experience and training or that staffing considerations are dissimilar. Petitioner's case began and ended with the fact that Ms. McNeal has no direct experience, specifically with IDDS programs, and that Ms. McNeal had not previously evaluated proposals submitted in response to an RFP. The record does not reveal whether there would be any other Department employees, besides Mr. Balliet, who had direct experience specifically with IDDS programs and who, also, had evaluated proposals for an RFP before. Imposing either or both of these requirements for potential evaluators could serve as an impossibly restrictive hindrance to an agency trying to follow the competitive procurement process while also carrying out the agency's functions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Respondent, Department of Juvenile Justice, dismissing the Petition filed by Petitioner, Psychotherapeutic Services of Florida, Inc. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of March, 2011.
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
Findings Of Fact Petitioner is an inmate incarcerated at Tomoka Correctional Institution, Daytona Beach, Florida. He is presently serving a sentence of 60 years and has a presumptive parole release date of 180 months. Petitioner specifically challenges the validity of the matrix time range contained in Rule 23-21.09(5), Florida Administrative Code. That provision contains a matrix which sets the time ranges for presumptive parole release dates. A copy of that matrix is attached to this order as Appendix I. The most current matrix was last amended effective October 1, 1982. The initial or first matrix was developed and became effective in 1979 in response to legislation adopted in 1978 which required the Parole and Probation Commission (hereafter referred to as Commission) to develop and implement objective parole guidelines. Prior to this time, the granting or denying of parole had been a subjective decision by the commissioners and required a majority vote of the commissioners. In originally developing the matrix, the Commission used the Thurston Scaling Method in ranking various criminal offenses from least to most serious offense. This method involved providing each of the Commissioners with 40 index cards on which the various criminal offenses were written. Each commissioner then ranked the various criminal offenses in order of seriousness. The Board then reviewed the results and arrived at a consensus on the ranking of the various crimes. The Thurston scaling methodology is an accepted scientific methodology for ranking different crimes by level of seriousness or severity. This methodology was recommended to the Commission by three consultants in the field of parole. These same three experts, Peter Hoffman, Director of Research for the U.S. Parole Commission, Dale Parent, Director of the Sentencing Guidelines Commission for the State of Minnesota, and Betty Taylor, a parole commissioner for the State of Oregon, advised and consulted with the board in developing the objective parole guidelines. After the initial matrix was adopted as a Commission rule, it was reviewed on an annual basis as required by statute. Since 1979, some changes in the matrix have been adopted by the Commission based upon their annual review. Each change was adopted as a rule change and the procedures for adopting or amending administrative rules were followed. The procedure for adopting the rule changes generally took at least 90 days. The present matrix contains six categories of crimes broken down by degrees. Each inmate is assigned a salient-factor score and by using this score with the offense for which the person was sentenced a time range for the Presumptive parole release date for that individual is obtained from the matrix. The Commission sets the presumptive parole release date within that range unless other factors warrant going outside that range by extending or reducing the number of months to the presumptive parole release date. The inmate's presumptive parole release date may also be extended for unsatisfactory institutional behavior while incarcerated. The Commission, in granting or denying parole, considers the total case package including those specific reasons which may serve as a basis for going above or below the matrix time range. When the Commission goes outside the matrix time range it must state its reason for doing so. Prior to March 1983, the forms of the Commission's actions were filed in a central storage area. In March 1983, the mechanism became available for feeding this information into the computer. Using the computer and data which is maintained by the Department of Corrections, the Commission now generates quarterly reports. These reports provide a statistical analysis which indicates whether the guidelines are being following by the Commission. This same data also provides a possible indicator for needed changes in the guidelines. All revisions to the guidelines must now be made based upon such statistical analysis. Sentencing guidelines and objective parole guidelines are separate. The salient-factor scores for the sentencing guidelines and objective parole guidelines are similar, but not the same. Sentencing involves a separate branch of government, a separate function, separate measurements, and separate criteria. Sentencing can be done only by a court of law and is accomplished by court order. Sentencing sets the limit of the incarceration period. The parole function is a function of the executive branch and cannot be ordered by the Commission. An offer of parole is tendered or offered by the Commission and the inmate may accept or reject the offer and its condition. If the inmate accepts an offer of parole, the form used is a contract form which must be signed and agreed to by the inmate. Parole results in release under supervision whereas completion of the sentence results in full release without conditions or supervision. Section 947.165(2), Florida Statutes, was amended by the 1982 legislature. See Session Law 82-171. Prior to this amendment, changes made in the objective parole guidelines were to be based upon the "experience" of the commission. The amended section provides that the Commission shall review the guidelines at least once each year and make any revisions considered necessary by virtue of statistical analysis of Commission actions. The initial report of the data generated by this statistical analysis was to be due January 30, 1983. See Florida Statute 947.13(3)(1982). The Commission and its staff began work immediately after the passage of 82-171 to implement the statistical analysis and reporting requirements.
