The Issue Whether Petitioner, Bonia Baptiste, was subject to an unlawful employment practice by Respondent, the Florida Department of Juvenile Justice, in violation of the Florida Civil Rights Act.
Findings Of Fact The Department is the Florida executive agency responsible for "planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum." As described in section 20.316(1)(b), Florida Statutes, the "juvenile justice continuum" includes: ll children-in-need-of-services programs; families-in-need-of-services programs; other prevention, early intervention, and diversion programs; detention centers and related programs and facilities; community-based residential commitment and nonresidential programs; and delinquency institutions provided or funded by the department. 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). The Department's statutory mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services that strengthen families and turn around the lives of troubled youth. § 985.01, Fla. Stat. Pursuant to this mission, the Department's Office of Detention Services operates 21 detention centers throughout the State of Florida. These detention centers provide for the care, custody, and control of youth who are taken into custody and placed into detention care. See § 985.255, Fla. Stat. Florida statutes establish a specific criterion for determining whether juveniles (persons under the age of 18, or any person who is alleged to have committed a violation of law, which occurred prior to the time that person reached the age of 18) are housed in a detention center. Upon placement in a facility, juveniles are held during all stages of the juvenile justice process, including while awaiting a court adjudication or disposition, or placement in a residential facility. §§ 985.03(7), 985.03(18), 985.03(19), 985.24, and 985.255, Fla. Stat., and Fla. Admin. Code R. 63G-2.014. Petitioner is currently employed with the Department as a Juvenile Justice Detention Officer II ("Detention Officer"). Petitioner is assigned to the Collier Regional Juvenile Detention Center ("Collier Detention Center") located in Naples, Florida. The Collier Detention Center contains 40 beds and houses juveniles detained by the surrounding Florida circuit courts. Petitioner is a Black female, who was born and raised in Haiti. At the time of the final hearing, Petitioner was 45 years old. Petitioner was initially hired by the Department on December 8, 2017, as a Detention Officer I. She was promoted to Detention Officer II, with the rank of Corporal, effective November 9, 2018. As a Detention Officer, Petitioner is responsible for the direct supervision of the juveniles in the Collier Detention Center. Petitioner explained that the Collier Detention Center houses troubled youth, who have violated Florida law. Petitioner relayed that her primary responsibility is to ensure the youth are safe and secure in the detention facility. Petitioner alleges that she experienced unlawful discrimination and sexual harassment while she worked at the Collier Detention Center. Petitioner's complaint focuses on the alleged actions of Major Rodney Goss, the Superintendent of the Collier Detention Center. Petitioner asserts that Major Goss subjected her to sexual harassment, unlawful discrimination, and retaliation based upon her sex, age, race, and national origin. Petitioner claims that she had no problems working at the Collier Detention Center until she rejected Major Goss's unwelcome sexually suggestive and demeaning comments, intimidation, jokes, and offensive touching. During the final hearing, Petitioner specifically described the following incidents: Staff Christmas Party:3 Petitioner testified that she first experienced sexual harassment at a Christmas staff cookout that took place in December 2018. Petitioner alleges that during that gathering, Major Goss commented about her physical appearance. Petitioner explained that she was not on duty that day. Therefore, she wore a dress to the party, instead of her uniform. Petitioner voiced that when Major Goss saw her in her outfit, he announced that he would "catch a PREA [Prevention Rape Elimination Act] for that ass." Offensive Touching: On February 6, 2019, Petitioner went to Major Goss's office to discuss the actions of another Detention Officer, which Petitioner found objectionable. According to Petitioner, after she walked into his office, Major Goss told her to close the door. As she was closing the door, Major Goss touched her breasts with his hands. At the final hearing, Petitioner declared that Major Goss's "hand always has to get into my boobs." 3 The Department asserts that the incidents that allegedly took place before August 31, 2019, are not actionable because they occurred outside the 365-day statutory time limit. The undersigned, however, is considering these alleged incidents in this Recommended Order. See para. 58 below. Comment Regarding Petitioner's Haitian Accent: Petitioner alleged that her immediate supervisor once made fun of her accent, which reflects her Haitian background. On May 9, 2019, Petitioner met with Major Goss to discuss the incident. During this meeting, Petitioner asserted that Major Goss remarked that her accent is "sexy," and she should not worry about her supervisor. Petitioner was very disappointed at Major Goss's indifferent attitude. She felt that the comment was a serious matter. Major Goss, however, took no action against Petitioner's supervisor. Physical Contact: Petitioner complained that in or around August 2019, Major Goss pushed her against a wall and moved so close to her body that she felt his private parts. Work Schedule Modification: On September 20, 2019, Petitioner asked Major Goss about adjusting her work schedule so that she could have Sundays and Mondays off. Petitioner told Major Goss that she "would do anything" to get those two days off (such as extra work). Petitioner testified that when Major Goss heard her plea, he replied, "You will do anything?" He then laughed, walked to a white board in his office, and drew a picture of female and a male having sex. Upon seeing Major Goss's drawing, Petitioner expressed, "that's how you look at me?" She then called him a foul name and left his office. Major Goss did not modify Petitioner's work schedule. COVID Protective Equipment: On August 3, 2020, Major Goss failed to respond to Petitioner's email regarding working with a COVID-19 positive youth. Petitioner specifically requested Major Goss provide her with Personal Protective Equipment ("PPE"). At the final hearing, Petitioner conceded that Major Goss did, eventually, supply her with adequate PPE. Verbal Harassment: On August 28, 2020, Petitioner encountered Major Goss at work, where she claims he announced, "Are you still here? I'm working on firing you." Major Goss allegedly made this statement in front of other detention facility staff. (Major Goss did not fire Petitioner.) Request for Uniform: In September 2020, Petitioner requested a uniform from Major Goss. She claims that he never gave her a new uniform, purportedly because she rejected his sexual advances. Application for a Registered Behavior Technician Position: On August 3, 2020, Petitioner applied to become a Registered Behavior Technician ("RBT") for the Collier Detention Center. She was not selected for the position. Instead, the job was given to a younger Black person. Additional RBT positions were given to two white males. Petitioner believed that she was qualified to become an RBT, as well as had seniority over the other two employees who were selected for the opening. Application for Facility Training Coordinator: Later, Petitioner applied to be a Facility Training Coordinator ("FTC") for the Collier Detention Center. The FTC position required a Detention Officer to assume additional duties and responsibilities. It also awarded a five-percent raise. Petitioner testified that Major Goss selected a Department employee (a Black female) from another detention facility as the Collier Detention Center FTC. Petitioner believes that she was more qualified than the other employee. Petitioner contends that Major Goss purposefully did not to promote her to either the RBT or FTC positions in retaliation for her refusal to have sex with him. Detention Officer Promotions: Petitioner testified that she suspected that the Collier Detention Center staff had to perform sexual favors for promotions. To support this allegation, Petitioner reported that she heard about a specific incident in May or June 2020 when another Detention Officer danced provocatively in front of Major Goss. Major Goss then linked arms with her, and they walked together into the detention facility breakroom. Workers' Compensation Injury: At the final hearing, Petitioner described a disturbance at the Collier Detention Center on May 4, 2020, in which she injured her knee interceding in a fight between two youths. Petitioner immediately made a First Report of Injury or Illness to initiate a workers' compensation claim. On May 9, 2020, when she reported her workers' compensation-related injury to Major Goss, Petitioner alleges that he told her that she was faking it, and there was nothing wrong with her knee. He also exclaimed that she was "just too old." Petitioner voiced that Major Goss's comment about "faking" her knee injury was retaliation for rejecting his desire to have sex with her. Despite Major Goss's alleged statements, the Department, by letter dated May 13, 2020, placed Petitioner on alternate duty status. Petitioner was expected to perform duties, "which have been assigned within the current physical restrictions outlined by your physician." On June 30, 2020, Major Goss was notified that Petitioner had reached maximum medical improvement, with a zero-percent impairment rating. In addition to the above specific incidents, Petitioner testified that she was "always afraid" of Major Goss. He caused her anxiety and stress. She expressed that she felt threatened by him because she feared that whenever he came near her, he would talk about sex or ask her for sex. She feels that he looked at her like a sex object. Petitioner expressed that she wants to succeed at her job, and "not have to sleep with anyone to get there." Consequently, she tried to avoid Major Goss at work. Petitioner further declared that her work environment was full of sexual incidents involving other Department employees. Petitioner alleged that Major Goss touched her breasts on "multiple" occasions, then would tell her that it was an accident. Finally, Petitioner claimed that in the summer of 2020, she went to Major Goss and threatened to report him "to Tallahassee." Major Goss, however, dismissed her pronouncement stating, "Who are they going to believe?" Petitioner asserts that her reprimands only occurred after she rejected Major Goss's sexual advances. On August 28, 2020, Petitioner filed a formal sexual harassment complaint with the Department. Currently, Petitioner still works as a Detention Officer at the Collier Detention Center. However, Petitioner declared that Major Goss's actions have severely, adversely affected her ability to perform her job. Petitioner also believes that the Department has discredited or outright ignored her complaints of discrimination and harassment. Petitioner testified that she did not report the incidents of harassment before August 2020 because she was afraid that she would lose her job or be punished at work. But now that she has notified the Department, Petitioner is very frustrated that the Department has not made any adjustment or change to her job duties or status based on her complaints against Major Goss. At the final hearing, Petitioner pleaded that she simply cannot work under Major Goss anymore. She asserted that the Department is setting her up for failure. Petitioner also wants the Department to be held accountable for Major Goss's unacceptable behavior. Petitioner declared that no women who work at the Collier Detention Center should feel threatened based on their sex. Despite her tense working relationship with Major Goss, Petitioner testified that she is a good worker. As proof of her effectiveness, Petitioner produced her performance evaluation for 2019-2020, in which she was given an overall rating of "Commendable." In the evaluation, Major Goss specifically commented, "Cpl. Baptiste is an exceptional employee within the department," and that she "is always reliable [and] does more than just get by." Petitioner's direct supervisor, Captain Samuel Sainval, added that Petitioner "has the capability to perform at a high level. [Petitioner] is reliable and shows up to work as scheduled." Petitioner was awarded either an "above expectation" or "meets expectation" in all five rating categories. The Department denies that Major Goss, or any other Department employee, subjected Petitioner to unlawful employment practices based upon her sex, age, race, or national origin, or in retaliation. At the final hearing, the Department maintained that it does not condone or tolerate sexually offensive or harassing behavior by its employees. The Department initially called Major Goss to testify. As Superintendent of the Collier Detention Center, Major Goss is responsible for the operation, safety, and security of the detention facility. In his role, Major Goss is the ultimate supervisor for all Detention Officers and Department employees at the Collier Detention Center, including Petitioner. Major Goss has worked for the Department since 2011, when he was hired as a Detention Officer I. He steadily advanced through the Department ranks until he was promoted to Superintendent of the Collier Detention Center in January 2019. Major Goss is also Black. At the final hearing, Major Goss firmly denied Petitioner's allegations of discrimination and sexual harassment. Regarding Petitioner's specific charges: Comment Regarding Petitioner's Haitian Accent: Major Goss recalled Petitioner's complaint that a staff member had belittled her Haitian accent. Major Goss stated that he elected to handle the incident internally as a "management" concern. Major Goss testified that he addressed Petitioner's issues with the direct supervisor who allegedly made the disparaging comment. Major Goss expressed that they reviewed how to act professionally, as well as properly interact with subordinates in the work environment. In addition, Major Goss arranged for a meeting between Petitioner and her supervisor to discuss her discomfort with his actions. Major Goss relayed that he elected not to reprimand or remove Petitioner's supervisor. Major Goss testified that he did not believe that the supervisor's comment rose to the level of discrimination against Petitioner's national origin. Major Goss further denied that he personally ever discriminated against Petitioner because of her accent or national origin. COVID Protective Equipment: Major Goss remembered that Petitioner once emailed him with concerns regarding possible exposure to youth with COVID in the facility. Major Goss explained that he maintains the PPE for the detention facility in a central location. Major Goss testified that he promptly brought PPE to Petitioner following her request. Therefore, he believed that he adequately resolved the issue. Request for Uniform: Major Goss acknowledged that Petitioner emailed him in September 2020 regarding her uniform. To the best of his memory, Petitioner had not been wearing the proper uniform pants. Therefore, she was out of compliance. Major Goss stated that he was able to requisition the appropriate pants for Petitioner. Accordingly, he believed he resolved her issue. Detention Officer Promotions: Major Goss admitted that on one occasion he walked arm-in-arm with a Detention Officer into the Collier Detention Center breakroom. Major Goss urged that there was nothing sexual about their actions, and at no point were they outside the sight of other Department employees. At most, Major Goss represented that they were simply joking around. Major Goss staunchly refuted Petitioner's accusations regarding the following alleged incidents. He roundly stated that they "never happened." Staff Christmas Party: Major Goss denied that he made any comments about Petitioner's appearance or attire during the staff Christmas party in December 2018. Offensive Touching: Major Goss denied that he inappropriately touched Petitioner in his office on February 6, 2019, or at any other time. Work Schedule Modification: Major Goss denied Petitioner's allegation that he drew a picture of two people having sex on the dry erase board in his office. Verbal Harassment: Major Goss denied that he had any conversation with Petitioner in which he announced that he was firing her. Neither did he ever ask her, "Why are you still working here?" Workers' Compensation Injury: Major Goss admitted that he was aware that Petitioner suffered a knee injury in May 2020. Major Goss denied that he had a follow-up discussion with Petitioner in which he told her that she was "too old." Vincent Vurro is Chief, Detention Services South Region, for the Department. In this role, Mr. Vurro oversees the administration and operation for the Detention Services South Region, including personnel issues and day-to-day support. Chief Vurro relayed that the South Region includes seven detention facilities, including the Collier Detention Center. Chief Vurro testified regarding several disciplinary actions that the Department took against Petitioner in 2020. Chief Vurro relayed that, per Department procedures, requests to discipline Detention Officers are routed from the detention facility superintendents up to the South Regional office. Therefore, Chief Vurro was personally aware of, and able to testify regarding, the following disciplinary actions against Petitioner: Oral Reprimand, January 2, 2020: Chief Vurro relayed that Petitioner received an oral reprimand on January 2, 2020. The reprimand was based on a report that Petitioner engaged in a verbal argument with a co-worker during a shift change briefing. Chief Vurro explained that, prior to shift changes at detention facilities, Detention Officers meet to discuss the upcoming day, as well as share pertinent information. Chief Vurro asserted that the oral reprimand was warranted because Petitioner's "unprofessional" conduct was disruptive and could have affected staff performance. Chief Vurro stated that Petitioner's actions violated Facility Operating Procedure 1.05, which requires employees to be "courteous, considerate, respectful and prompt in dealing with and serving the public and co-workers." Major Goss reiterated Chief Vurro's testimony on the importance of orderly shift changes. Major Goss voiced that the Collier Detention Center is manned 24 hours a day. Therefore, he must ensure that Detention Officers properly coordinate any work issues when starting their duty days. Major Goss explained that each of the three work shifts at his facility overlaps by approximately 30 minutes. During this time, Detention Officers discuss any outstanding concerns. Consequently, he felt compelled to reprimand Petitioner based on the disruption she caused during the shift change. He believed that the oral reprimand was necessary and proper. Written Reprimand, May 7, 2020: Chief Vurro relayed that Petitioner received a written reprimand on May 7, 2020, for failing to timely radio in a "Code White" after she observed a youth who threatened to intentionally harm herself.4 Following his review of a video of the encounter, Chief Vurro determined that Petitioner did not instantly act to assist the youth in danger. Petitioner lost sight of the youth when she decided to use a phone to call for assistance, instead of her Department-issued radio that should have been carried on her belt. Written Reprimand, May 29, 2020: Chief Vurro testified that, on May 29, 2020, Petitioner was given a written reprimand based on her failure to carry her Department-issued radio while on duty. The discipline was based on an incident that occurred when Petitioner was conducting eight-minute checks through her area of the facility. Petitioner encountered a youth who was exhibiting suicidal behavior. Petitioner, however, had removed her radio from her belt and left it some distance away. Therefore, Petitioner had to request another youth call for assistance with her radio while she responded to the situation. Petitioner was disciplined for inefficiency or inability to safely perform assigned duties and failure to have immediate access to a radio. Upon questioning, Chief Vurro conceded that he never personally discussed with Petitioner the circumstances behind the above incidents. 4 Facility Operating Procedure 5.06 establishes color codes for Detention Officers to use to announce emergencies during radio communications. A "Code White" represents "Cut Down; Knife for Life required." Chief Adrian Mathena explained that in civilian parlance, "Code White" stands for a medical emergency, and "Cut Down" means a suicide attempt. Instead, he decided that the reprimands were warranted based on the evidence presented to him, which primarily consisted of video recordings of the May 7 and May 9 incidents. Application for Registered Behavior Technician: Chief Vurro was also involved in Petitioner's application to be an RBT. Chief Vurro described an RBT as an officer who would assist in a detention facility's behavior modification program. Chief Vurro explained that he did not consider the RBT position to be a promotion. He testified that the job did not award a salary increase or bonus. Instead, the applicant selected for the position would simply receive a certification. Major Goss further detailed that the Collier Detention Facility had created three RBT positions, one for each work shift. He also proclaimed that he did not directly select which Detention Officers were to fill the RBT openings. Instead, he simply reviewed names submitted to him from the immediate supervisors, then signed off on their recommendations. Major Goss stated that he did not have any information as to why the supervisors did not recommend Petitioner for one of the three RBTs. Further, like Chief Vurro, Major Goss did not consider the RBT position to be a promotion because it did not entitle a Detention Officer to more pay or rank. Rather, the Detention Officer merely participated in an RBT certification course. At that point, the Detention Officer would be prepared to use their RBT training to perform additional duties. Application for Facility Training Coordinator: Regarding Petitioner's application to be an FTC, Chief Vurro testified that Major Goss selected the Detention Officers who were to be considered for the position, then he (Chief Vurro) approved the pick. As for the specific reason Petitioner was not selected, Chief Vurro stated that, to qualify as an FTC, the Detention Officer must have served as a Detention Officer II for at least three years. Chief Vurro asserted that, at the time Petitioner applied, she had less than the required time in grade. Therefore, she did not qualify for the opening. On the other hand, the Detention Officer who he ultimately chose for the role did have the required service time. Major Goss repeated Chief Vurro's testimony that he did not select who filled the FTC position. Instead, Major Goss gathered the applications, then forwarded them to Chief Vurro as the regional director. Major Goss maintained that he did not have personal knowledge as to why Chief Vurro did not choose Petitioner as the Collier Detention Center FTC. Major Goss offered that he heard that some of the applicants did not have sufficient time in grade to qualify for the position. Major Goss further acknowledged that the FTC position came with a five-percent raise. Adrian Mathena is the Chief of Policy Development and Planning for Detention Services for the Office of Detention Services. In his role, Mr. Mathena has knowledge of the mission and duties of the Department's detention services, specifically regarding the budget, operation, and management of juvenile detention facilities. Chief Mathena is also involved in detention facility personnel decisions. Chief Mathena expressed that Detention Services exists to make a positive impact on juveniles in custody. Accordingly, Detention Services endeavors to provide a safe, secure, and humane environment to the youth entrusted to Department supervision. Regarding Petitioner's written reprimands in May 2020, Chief Mathena explained that the Department requires Detention Officers to maintain their radios on their persons at all time. Chief Mathena explained that Detention Officers must have immediate access to their radios in case they need to call for assistance. Regarding Petitioner's application for the FTC position, Chief Mathena concurred with Chief Vurro's testimony that the Department required three years of Detention Officer II experience prior to acceptance into the program. Chief Mathena professed that the FTC program is "highly selective." Chief Mathena also echoed Chief Vurro's testimony that the program required the Detention Officer to assume additional responsibilities, which would bestow a five-percent boost in pay. Regarding Petitioner's application to be an RBT, Chief Mathena relayed that, when the program initially started, the Department envisioned one technician in every detention facility. However, this arrangement soon proved problematic. Consequently, at this time, the Department no longer offers the RBT certification or position. Department Investigation: Following Petitioner's formal complaint of sexual harassment to the Department on August 28, 2020, the Department opened an internal investigation into Petitioner's allegations against Major Goss. To describe and explain the Department's investigation process and conclusions, the Department called several witnesses from the Department's Office of Inspector General ("OIG"). Darrell Furuseth is Chief of Investigations for the OIG. In his role, Chief Furuseth coordinated and supervised the investigation into Petitioner's allegations of sexual harassment and unlawful discrimination. Chief Furuseth began his testimony by explaining that Petitioner's complaint, like all sexual harassment allegations and complaints within the Department, was channeled through the Department's Central Communication Center (the "CCC"). Chief Furuseth relayed that, on August 28, 2020, the CCC received a phone call reporting sexual harassment by a Department employee. The Reporting Person (the caller) was Bonia Baptiste (Petitioner), and she identified Rodney E. Goss (Major Goss) as the subject of her complaint. As supporting background information, Petitioner declared that Major Goss "made comments about her breasts." She further accused him of embarrassing her "in front of the other staff by threatening to terminate her," and once "pushing [her] into a corner as he walked by." Petitioner also stated that she suspected that staff at the Collier Detention Center were "performing sex acts in exchange for advancement." Finally, Petitioner questioned the selection of another Detention Officer for employee of the month. Thereafter, the OIG initiated an investigation into Petitioner's allegations. Specifically, the OIG investigated Major Goss for "Improper Conduct; Sexual Harassment (staff on staff)." As part of the investigation, the OIG interviewed both Petitioner and Major Goss. The OIG further interviewed Petitioner's direct supervisor (CPT Sainval), as well as six of Petitioner's fellow Detention Officers from the Collier Detention Center. Upon completion of the investigation, on October 9, 2020, the OIG convened an EEO Resolution Panel to determine whether "cause" existed to substantiate Petitioner's complaint. The Resolution Panel concluded that "there was 'No Cause' to believe alleged sexual harassment occurred." Chief Furuseth, who served on the Resolution Panel, explained that the Resolution Panel looked for specific corroborating evidence or witnesses to confirm Petitioner's complaint. They found none.5 Neither did the investigation uncover any photographs or videos supporting Petitioner's allegations. Chief Furuseth urged that in reaching its conclusion, the Resolution Panel objectively looked at the totality of the investigation and considered all the witness statements. On October 20, 2020, the OIG prepared a written Report of Investigation stating, "Based on the lack of evidence, it was determined that a subsequent investigation was not warranted." 5 Two interviewees whose statements are included in the Report of Investigation expressed that Petitioner complained to them that Major Goss sexually harassed her. However, the two interviewees directly denied ever having personally observed Major Goss treat Petitioner improperly or having any personal knowledge of inappropriate conduct on the part of Major Goss. These recorded accounts, while generally bolstering Petitioner's accusations of interoffice strife, are clearly hearsay in that they are out-of-court statements by two individuals who did not appear at the final hearing. Consequently, the comments are insufficiently reliable to serve as a basis for a factual finding. See § 120.57(1)(c), Fla. Stat. See also Damask v. Ryabchenko, -- So.3d --, WL 4979083 (Fla. 4th DCA Oct. 27, 2021)("Inadmissible hearsay cannot be competent, substantial evidence."); and Mace v. M&T Bank, 292 So. 3d 1215, 1226 (Fla. 2d DCA 2020). Dixie Fosler is the Assistant Secretary for Detention Services for the Department. In her role, Ms. Fosler oversees operations for all 21 Detention Centers in Florida. Ms. Fosler testified regarding the operation and management of the detention facilities, as well as personnel policies and procedures governing detention facilities and officers. Ms. Fosler also served on the EEO Resolution Panel that investigated Petitioner's allegations of sexual harassment. Ms. Fosler initially expressed that the Department will not tolerate sexual harassment, and sexual harassment by Department employees is a terminable offense. That being said, Ms. Fosler represented that the OIG's investigation into Petitioner's complaint did not uncover any evidence to corroborate Petitioner's allegations. Neither did the investigation contain any witness statements supporting Petitioner's claims. On the other hand, Ms. Fosler relayed that the Resolution Panel had several concerns regarding other conduct by Major Goss. First, during the investigation, Major Goss described a recent encounter with Petitioner when she looked upon him with disgust. Reacting to her look, Major Goss uttered, "The feeling is mutual." The Resolution Panel was alarmed at Major Goss's open declaration of "disgust" at a Department employee. The Resolution Panel felt that Major Goss's expressed negative attitude towards a Detention Officer was unprofessional. Second, the Resolution Panel was troubled when it learned that Major Goss walked arm-in-arm with a subordinate into the Collier Detention Center breakroom suggesting that the two of them might engage in a romantic rendezvous – even in a joking manner. The Resolution Panel believed that Major Goss's actions were "too playful" for a supervisor to engage in. Based on these accounts, the Department issued Major Goss a written reprimand, dated October 20, 2020, for "unacceptable behavior." The Department specifically determined that Major Goss's conduct was "considered a violation of law or agency rules, and unbecoming for a public employee." The written reprimand warned Major Goss that, as Superintendent, he is "expected to always demonstrate a professional demeanor and act in a respectful manner." During the final hearing, Major Goss acknowledged his written reprimand. However, he pointed out that he was not punished for any discrimination or harassment involving Petitioner. Major Goss further stated that he received no discipline beyond the written reprimand. However, he relayed that the Department required him to attend sexual harassment training. Further, the Department installed cameras in the administration area, breakroom, and the superintendent's office at the Collier Detention Center to alleviate any concerns regarding possible future misconduct. Petitioner, in response to testimony describing her reprimands, asserted that the Department's disciplinary action was not proper. Instead, Petitioner declared that she was reprimanded only because she refused to have sex with Major Goss. At the final hearing, Petitioner pointed out that all the reprimands occurred after the alleged sexual harassment began. Regarding the January 2, 2020, oral reprimand, Petitioner confirmed that this disciplinary action followed an argument she had with another Detention Officer during a shift change. At the final hearing, Petitioner explained that she was trying to diffuse a personal conflict with the other employee. Petitioner asserted that this reprimand was not justified because her actions did not place any youth in danger. Petitioner further commented that Major Goss "makes a problem out of everything because I won't have sex with him." Regarding the May 7, 2020, written reprimand, Petitioner recounted that she had attempted to call for help during the incident, but her radio did not work. Therefore, she was forced to use a phone to call for assistance. Consequently, Petitioner contended the discipline was not warranted. Regarding the May 29, 2020, written reprimand, Petitioner asserted that when she saw a juvenile at risk of harming herself, she immediately reacted. She only requested the other youth call for help because she was struggling to manage the situation. Petitioner further stated that she had previously removed her radio from her belt because she had completed her eight-minute bed check, and all the youth were safe and secure. Petitioner added that other Detention Officers did not always carry their radios on their belts. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Department discriminated against Petitioner based on her race, sex, national origin, or age, or in retaliation for participating in a protected activity. The most persuasive evidence presented during the final hearing does not corroborate Petitioner's allegations of discrimination or sexual harassment. On the contrary, the testimony from the Department witnesses, in particular, Major Goss, is credible and is credited. Further, the evidence establishes that Petitioner was disciplined appropriately and not as retaliation for her complaint. Accordingly, Petitioner failed to meet her burden of proving that the Department committed an unlawful employment action against her in violation of the FCRA.
Conclusions For Petitioner: Paul Middle Platte, Esquire Paul Platte, P.A. 611 South Fort Harrison Avenue, Suite 252 Clearwater, Florida 33756 For Respondent: Debora E. Fridie, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 3200 Tallahassee, Florida 32399-3100 1 All statutory references are to Florida Statutes (2021), unless otherwise noted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Bonia Baptiste, did not prove that Respondent, the Florida Department of Juvenile Justice, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of November, 2021, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Debora E. Fridie, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 3200 Tallahassee, Florida 32399-3100 Paul Middle Platte, Esquire Paul Platte, P.A. Suite 252 611 South Fort Harrison Avenue Clearwater, Florida 33756 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to the Proposed Rules of the Department of Juvenile Justice (“Department” or “DJJ”) 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017 (the “Proposed Rules”). The main issue in this case is whether the Proposed Rules are an invalid exercise of delegated legislative authority in that the Proposed Rules enlarge, modify, or contravene the specific provisions of law implemented, section 985.686, Florida Statutes; are vague; and/or are arbitrary and capricious. Petitioners also argue that the Proposed Rules impose regulatory costs that could be addressed by the adoption of a less costly alternative. Finally, Petitioners assert that the Proposed Rules apply an invalid interpretation of the General Appropriations Act (“GAA”) for Fiscal Year (“FY”) 2014-15 by interpreting the GAA as a modification to substantive law, contrary to the Constitution of the State of Florida.
Findings Of Fact The Parties The Department is the state agency responsible for administering the cost-sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. The challenging counties are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost-sharing requirements of section 985.686. The challenging counties are substantially affected by the application of Florida Administrative Code Rules 63G-1.010 through 63G-1.018, including the Proposed Rules. It was stipulated that the challenging counties’ alleged substantial interests are of the type these proceedings are designed to protect. Petitioner, Florida Association of Counties (“FAC”), is a statewide association and not-for-profit corporation organized and existing under chapter 617, Florida Statutes, for the purpose of representing county government in Florida and protecting, promoting, and improving the mutual interests of all counties in Florida. All of the 67 counties in Florida are members of FAC, and the Proposed Rules regarding Detention Cost Share affect all counties. Of the 67 counties in Florida, 35 are considered non- fiscally constrained, and are billed by the Department for their respective costs of secure detention care, as determined by the Department; 27 of these counties are participating alongside FAC in these proceedings. The subject matter of these proceedings is clearly within FAC’s scope of interest and activity, and a substantial number of FAC’s members are adversely affected by the Proposed Rules. The challenging counties, and FAC, participated in the various rulemaking proceedings held by the Department related to the Proposed Rules, including rule hearings held on June 6, 2014, and August 5, 2014. Rule Making The initial version of the Proposed Rules was issued, and a Rule Development Workshop was held on March 28, 2014. Numerous challenging counties submitted comments on the Proposed Rules either prior to, or at the Rule Development Workshop. On May 15, 2014, the Department published Proposed Rules 63G-1.011, 1.013, 1.016, and 1.017 in the Florida Administrative Register. In that Notice, the Department scheduled a hearing on the Proposed Rules for June 6, 2014. On June 6, 2014, a rulemaking hearing was held on the Proposed Rules. Numerous challenging counties submitted comments to the Proposed Rules either prior to, or at the hearing. A supplemental rulemaking hearing was held on August 5, 2014. Again, numerous challenging counties submitted comments regarding the Proposed Rules either prior to, or at the supplemental rulemaking hearing. On September 5, 2014, the Department advertised its Notice of Change as to the Proposed Rules. Thereafter, all parties to this proceeding timely filed petitions challenging the Proposed Rules. A statement of estimated regulatory costs (“SERC”) was not originally prepared by the Department. In the rulemaking proceedings before the Department, Bay County submitted a good faith written proposal for a lower cost regulatory alternative. In its proposal, Bay County asserted that the Department’s own stipulations signed by the agency are competent substantial evidence that the agency has a “less costly alternative” to the approach taken in the Proposed Rules, by assessing the costs of all detention days for juveniles on probation status to the state, and not the counties.2/ As Bay County noted in the proposal, the Department previously had agreed to assume all of the cost of detention days occurring after a disposition of probation. Following the June 6, 2014, hearing, the Department issued a SERC for the Proposed Rules. Ultimately, the Department rejected the lower cost regulatory alternative proposed by the counties “because it is inconsistent with the relevant statute (section 985.686, F.S.), fails to substantially accomplish the statutory objective, and would render the Department unable to continue to operate secure detention.” The Implemented Statute The Proposed Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care “for juveniles for the period of time prior to final court disposition.” § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of “its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition,” based on “the prior use of secure detention for juveniles who are residents of that county, as calculated by the department.” § 985.686(5), Fla. Stat. (emphasis added). Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, “[a]ny difference between the estimated costs and actual costs shall be reconciled.” Id. The Department is responsible for administering the cost-sharing requirements and is authorized to adopt rules as set forth in section 985.686(11). In general, the Proposed Rules provide definitions including for pre and postdisposition, provide for calculating the estimated costs, for monthly reporting, and for annual reconciliation. Specific changes will be discussed in detail below. The complete text of the Challenged Rules, showing the proposed amendments (in strike-through and underlined format) is attached hereto as Appendix A. The Prior Rule Challenge On July 16, 2006, the Department promulgated Florida Administrative Code Rules 63G-1.002, 63G-1.004, 63G-1.007, and 63G-1.008, among others, setting forth the definitions and procedures for calculating the costs as between the state and the various counties. These rules were repealed as of July 6, 2010, and in their place, the Department adopted rules 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017. Although the previous rules defined “final court disposition,” for purposes of determining the counties’ responsibility for providing the costs of secure detention, the 2010 rules replaced this with a definition of “commitment,” so that the state was only responsible for days occurring after a disposition of commitment. This had the effect of transferring the responsibility for tens of thousands of days of detention from the state to the counties. In addition, the 2010 rules failed to provide a process by which the counties were only charged their respective actual costs of secure detention. In 2012, several counties challenged rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017 as an invalid exercise of delegated legislative authority because these rules replaced the statutory dividing line for the costs of secure detention with “commitment,” and because the rules resulted in the overcharging of counties for their respective actual costs of secure detention. On July 17, 2012, a Final Order was issued by the undersigned which agreed with the counties and found that the rules were an invalid exercise of delegated legislative authority. Okaloosa Cnty., et al. v. Dep’t of Juv. Just., DOAH Case No. 12-0891RX (Fla. DOAH July 17, 2012). On June 5, 2013, this ruling was affirmed on appeal. Dep’t of Juv. Just. v. Okaloosa Cnty., 113 So. 3d 1074 (Fla. 1st DCA 2013) (“2012 Rule Challenge”). The Department’s Response to the 2012 Rule Challenge No changes to the Department’s practices were made after the Rule Challenge Final Order was released in 2012. Rather, changes were not made until after the Rule Challenge decision was affirmed on appeal in June 2013. Shortly after the opinion was released by the First District Court of Appeal, the Department modified its policies and practices to conform with its interpretation of the requirements of that opinion, and informed the counties that “all days for youth in detention with a current placement of probation or commitment belong to the state.” At this time, the Department determined that “by their nature all VOPs [violations of probation] are attached to charges that have a qualified disposition and thus are a state pay.” In response to the appellate court decision, the Department implemented and published to the counties its interpretation that the counties were only responsible for detention days occurring prior to a final court disposition, and were not responsible for detention days occurring after a juvenile has been sentenced to commitment or probation, or is waiting for release after a dismissal of the charge. A statement to this effect was developed by the Department with input from multiple staff, and was to be a “clear bright line” setting “clear parameters” and a “final determination” that the Department could share with those outside the agency. However, no rules were developed by the Department at this time. In July 2013, the Department revised its estimate to the counties for Fiscal Year (“FY”) 2013-14 from what had been issued (previously). This revised estimate incorporated the Department’s analysis that included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed. The revised estimate also excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. At the time of the 2012 Rule Challenge, several counties had pending administrative challenges to the Department’s reconciliations for FYs 2009-10, 2010-11, and 2011-12. In September 2013, the Department issued recalculations of its final reconciliation statements to the counties for FYs 2009-10, 2010-11, and 2011-12. The recalculations were based upon the Department’s revised policies and practices and included in the state’s responsibility any detention days for youths in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and similarly excluded detention days resulting from a new law violation of probation. This resulted in large overpayments from the non-fiscally constrained counties to the state for these fiscal years. These recalculations were not merely an internal exercise, but rather were intended to notify the counties what they had overpaid for the fiscal years at issue, and were published and made available to the counties and public at large on the Department’s website. In December 2013, the Department entered into stipulations of facts and procedure to resolve three separate administrative proceedings related to final reconciliation amounts for FYs 2009-10, 2010-11, and 2011-12. Those stipulations of facts and procedure included the following definitions: The parties agree that “Final Court Disposition” as contained in section 985.686, Florida Statutes, and based on the decision of the First District Court of Appeal, means a disposition order entered by a court of competent jurisdiction, including an order sentencing a juvenile to commitment to the Department, or other private or public institution as allowed by law, placing the juvenile on probation, or dismissing the charge. The parties further agree that a “Pre- dispositional Day” means any secure detention day occurring prior to the day on which a Final Court Disposition is entered. A pre- dispositional day does not include any secure detention day after a juvenile has been sentenced to commitment or placed on probation, or is waiting for release after dismissal of a charge. (Petitioner’s Ex. 26) In addition to the above stipulations, the Department also stipulated to its recalculated amounts for each of these years, resulting in large overpayments from the counties. However, the Department refused to provide credits for these overpayment amounts. In November and December 2013, the Department issued a final reconciliation statement and revised final reconciliation statement to the counties for FY 2012-13, which included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and likewise excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. Under the Department’s reconciliation statement for FY 2012-13, the counties were collectively funding approximately thirty-two percent (32%) of the costs of secure juvenile detention. The Department also submitted its legislative budget request for FY 2014-15 in October 2013. This legislative budget request was based on the Department’s independent judgment as required by sections 216.011 and 216.023, Florida Statutes,3/ and excluded from the counties’ collective responsibility all detention days relating to a violation of probation, including for a new substantive law violation. The request provided that “the department may only bill the counties for youth whose cases have not had a disposition either to commitment or probation.” The request also notes a shift in the counties’ collective obligations from 73 percent of the total costs to 32 percent of these costs “in order to bring the budget split in line with the June 2013 ruling by the First District Court of Appeal.” Under this interpretation, the Department projected a $35.5 million deficiency in its budget for FY 13-14 and requested an $18.4 million appropriation for detention costs from the Legislature. This request was funded in the General Appropriations Act for 2014-15. The Department did not ask for additional funding for past years that had been challenged by the counties. At this same time, a projection for the deficit for FY 2014-15 was developed by the Department staff based on the same interpretation of the state’s responsibility for detention days. There was no objection from the Department’s Secretary or the Governor’s Office to this interpretation of the state’s responsibility. Change in Interpretation Re New Law Violation Fred Schuknecht, then - Chief of Staff of the Department, testified that in response to the opinion of the First District Court of Appeal in June 2013, the Department adopted a broad interpretation of the ruling that final court disposition meant commitment, and also included all secure detention days incurred by probationers as postdisposition days. This included detention days for youths already on probation who committed new offenses and were then detained as a result of the new offense or because of the violation of probation resulting from the commission of the new offense. During the budgeting process for the 2014-15 Fiscal Year, the Department altered its interpretation of the 2012 Rule Challenge decision, and its newly-established practice relating to payment for all detention days involving probationers. The Department now proposes, through the challenged rules, to shift to the counties the responsibility for detention days occurring after a final court disposition of probation where there is a new law violation. Although the challengers assert that the changed interpretation was driven by the budget proposal submitted by the Governor’s Office in January 2014 (which did not utilize the Department’s prior interpretation) the Department specifically contends that it did not change its official position on this interpretation until the adoption of the state budget by the General Appropriations Act (GAA) in June 2014. While the Department stated it made its initial broad interpretation because it was “under the gun” to issue its cost sharing billing for FY 2013-2014 within two weeks of the appellate opinion, the Department continued to assert that interpretation in September 2013, when it published recalculations for FYs 2009-2010, 2010-2011, 2011-2012. Further, Mr. Schuknecht conceded that this interpretation had not changed at the time the Department’s legislative budget request was submitted in October 2013, or in November and December 2013, when the Department issued the reconciliation and revised reconciliation for FY 2012-2013. Likewise, this interpretation formed the basis for the stipulations signed by the counties and Department in December 2013. At hearing, testimony established that the Department’s interpretation that the state was responsible for all days of detention for probationers was formed after frequent discussions on this topic and with input from multiple staff involved in cost sharing, including Mr. Schuknecht (Director of Administration at that time), Vickie Harris (Budget Director), Mark Greenwald (Director of Research and Planning), the Chief of Staff, Deputy Secretary, the legal team, as well as the Department’s Secretary. For FY 2014-15, the Executive Office of the Governor proposed a recommended budget which was contrary to the Department’s initial interpretation, and included within the counties’ collective responsibility those detention days for a youth on probation charged with a new substantive law violation. This recommended budget proposed that the counties would be responsible for fifty-seven percent (57%) of the shared costs of secure detention, and that the state would be responsible for forty-three percent (43%). This is in contrast to the thirty- two percent (32%) the counties were paying under the Department’s initial interpretation of the Rule Challenge Decision. The Governor’s Office then asked the Department to amend its earlier submitted legislative budget request, to reflect the Governor’s budget because it wanted the Department’s request to match. Although the GAA for FY 2014-15 incorporated a cost- sharing split similar to that included in the Governor’s proposal, it differed from the governor’s budget recommendation. It was not until June 2014, when the GAA was adopted into law, that the Department asserts it officially changed positions. As stipulated by the parties, there is no language in the GAA for FY 2014-15 setting forth the policy behind the budget split for secure detention. The Proposed Rules differ from the Department’s initial interpretation of the requirements of the Rule Challenge decision and its earlier established policies and procedures regarding the same as implemented in June 2013, through at least early 2014. The interpretation set forth in the Proposed Rules results in a lessened budgetary impact on the state by shifting more detention days to the counties. At hearing, Mr. Schuknecht testified as to the rationale for the Department’s changed interpretation regarding the counties’ responsibility for detention days for a youth on probation charged with a new substantive law violation: Q. If you would, Mr. Schuknecht, please kind of talk about the highlights of that rule, and especially in relationship to the Court’s ruling in the previous rule challenge. A. Basically how we got here is, in June of 2013, the First DCA ruled basically supporting the – DOAH’s hearing, the final court disposition prior to that. Basically we determined the final court decision meant commitment. They said it can’t be just commitment. So at that time we took the broadest interpretation as well will actually include all probationers as part of the final court disposition and they would be post-disposition days. Subsequent to that, in effect, through the Governor’s Office as well as the Legislature, as well as ourselves, we realized basically by doing that we are including probationers with new offenses as post-disposition cases which, in effect, makes no sense. It’s logical that they be pre- disposition cases because there is no disposition on those cases with new offenses. Plus probationers would only be in detention because they have new cases. They wouldn’t be there otherwise. So, in fact, that’s how we – so that’s the main change in the rule, in effect, defining what pre-disposition means. Mr. Schuknecht’s explanation for the Department’s changed interpretation is consistent with the explanation given by Jason Welty, the Department’s previous Chief of Staff, during the June 6, 2014, Workshop, that “the Department’s original interpretation was, quite frankly, in error.” Cost of Detention Days for Juveniles on Probation The Challengers contend that all days in detention served by a juvenile on probation are the responsibility of the state, and not the counties. Accordingly, the Challengers contest the Department’s Proposed Rules which assign responsibility for detention days of juveniles with new law violations to the counties, and not the state. Much of the testimony and argument at the hearing focused on the Department’s definitions for predisposition and postdisposition, and how these definitions apply as to youth on probation status with the Department. These definitions are crucial, as they relate to how the costs are split amongst the state and the counties. Only the costs of predisposition detention days may be billed to the counties under section 985.686. Final court disposition is specifically defined by the Proposed Rules as the “decision announced by the court at the disposition hearing” including “commitment, probation, and dismissal of charges.” “Predisposition” is further defined as the “period of time a youth is in detention care prior to entry of a final court disposition.” Proposed Rule 63G-1.011(14). “Postdisposition” on the other hand, means “the period of time a youth is in detention care after entry of a final court disposition.” Proposed Rule 63G-1.011(15). However, the definitions do not stop with this general language. Proposed Rule sections 63G-1.011(14)(b) and (15)(b) provide that it is the counties’ responsibility to fund the costs for days when a youth is on probation and is charged with a new law violation. These definitions are implemented through the Proposed Rules relating to the estimate and reconciliation processes. The Department argues that youth who are on probation and commit new offenses may be held in secure detention for the new offense but cannot be legally held in secure detention on the underlying violation of probation. However, the Department’s position would appear to be counter to the express language of several statutory provisions. Section 985.439(4) provides in relevant part: Upon the child’s admission, or if the court finds after a hearing that the child has violated the conditions of probation or postcommitment probation, the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation. In each such case, the court shall enter a new disposition order and, in addition to the sanctions set forth in this section, may impose any sanction the court could have imposed at the original disposition hearing. If the child is found to have violated the conditions of probation or postcommitment probation, the court may: Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation and up to 15 days for a second or subsequent violation. Place the child in nonsecure detention with electronic monitoring. However, this sanction may be used only if a residential consequence unit is not available. If the violation of probation is technical in nature and not a new violation of law, place the child in an alternative consequence program designed to provide swift and appropriate consequences to any further violations of probation. Neither statute nor Department rules define what is meant by a “technical” violation of probation. However, retired juvenile court judge Frank A. Orlando, accepted as an expert in juvenile detention issues, explained at hearing that: A technical violation in my opinion is something that doesn’t involve a law violation. It is a condition of probation. It would be a curfew. It could be going to school. It could be staying away from a family, a victim, or staying away from a place. It could be not obeying the probation officer, him or herself. In that sense they are technical violations of probation, but they are both violation of probation. In addition, section 985.101(1) provides that a juvenile may be “taken into custody” under chapter 985 for, among others, “a delinquent act or violation of law, pursuant to Florida law pertaining to a lawful arrest,” and “[b]y a law enforcement officer who has probable cause to believe that the child is in violation of the conditions of the child’s probation, home detention, postcommitment probation, or conditional release supervision; has absconded from nonresidential commitment; or has escaped from residential commitment.” § 985.101(1)(b), (d), Fla. Stat. However, this provision also expressly provides that “[N]othing in this subsection shall be construed to allow the detention of a child who does not meet the detention criteria in part V.” Part V of the Act includes section 985.255, which sets forth the detention criteria, and provides in pertinent part: Subject to s. 985.25(1), a child taken into custody and placed into secure or nonsecure detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if: The child is alleged to be an escapee from a residential commitment program; or an absconder from a nonresidential commitment program, a probation program, or conditional release supervision; or is alleged to have escaped while being lawfully transported to or from a residential commitment program. Thus, the undersigned is persuaded that sections 985.439(4), 985.101(1), and 985.255 all support a finding that a violation of probation, not associated with a new violation of law, may under some circumstances result in a new disposition of secure detention. However, pursuant to the Proposed Rules, under these circumstances the state would continue to be responsible for the cost of the secure detention. As explained at hearing, there is an idiosyncrasy in chapter 985 regarding secure detention for juveniles who have been charged with a violation of probation or violating a term of their conditional release. Under chapter 985, a child taken into custody for violating the terms of probation or conditional release supervision shall be held in a consequence unit. If a consequence unit is not available, the child is to be placed on home detention with electronic monitoring. § 985.255(1)(h), Fla. Stat. These consequence units have not been funded by the Florida Legislature for a number of years. However, the juvenile justice system has found a practical method to accommodate the nonexistence of these “consequence units.” For technical violations of probation, the courts often convert the violations of probation to a contempt of court, and will hold the juvenile in detention on this basis. This contempt of court procedure may also be used by the courts to detain a juvenile in secure detention for a violation of probation based on a new law violation. Pursuant to section 985.037, a juvenile who has been held in direct or indirect contempt may be placed in secure detention not to exceed five days for the first offense, and not to exceed 15 days for a second or subsequent offense. As noted by Judge Orlando and Seventh Judicial Circuit Judge Terrill J. LaRue, an order to show cause for indirect criminal contempt is the mechanism used to place a juvenile in secure detention for a violation of probation or conditional release. In addition, the probation is a significant factor that weighs heavily into the Department’s decision to securely detain the juvenile, and in large part determines whether the juvenile will be detained. For a youth who is on probation and is charged with a new substantive law offense, the Department, pursuant to its rules and policies, determines whether the youth will be detained in secure detention based on the Department’s Detention Risk Assessment Instrument (“DRAI”). § 985.245, Fla. Stat.; rule 63D-9.002. Under the DRAI, if the child scores 0-7 points, the child is not detained; 7-11 points, the child is detained on home detention; for 12 points or more, the child is detained on secure detention. For a youth who is on probation, the underlying charge for which that youth was placed on probation and/or the “legal status” of the youth itself will always be taken into account under the DRAI and will make secure detention significantly more likely than had the youth not been on probation on a number of fronts. This is also true for a youth on commitment status, in the case of conditional release. The highest scoring underlying charge may be used to assess the juvenile for probation if the new law violation does not score enough points for the juvenile to be securely detained. Therefore, there are days served in secure detention based on the scoring of the underlying charge for which the juvenile is on probation, and not the new law violation. In addition, there are a number of points resulting from the underlying charge for which the juvenile is on probation, regardless of whether the DRAI is scored on the new law violation or the underlying charge. A juvenile on probation will always get points purely for his or her legal status of probation. The number of points depends on the amount of time since the last adjudication or adjudication withheld. Six points is assigned for active probation cases with the last adjudication or adjudication withheld within 90 days. Two points are assigned if the last adjudication or adjudication withheld was more than 90 days ago. Similarly, the legal status of commitment, in the case of conditional release, also results in points towards secure detention. The prior adjudication or adjudication withheld which resulted in the probation or commitment status would also score points under the prior history section of the DRAI. In many cases, the underlying charge for which the youth is on probation will be the deciding factor regarding whether the youth is held in secure detention. Thus, the DRAI is significantly affected by a probationary status which adds additional points, and can trigger secure detention, regardless of the nature of the new law violation. In addition, a trial judge has the discretion to place a youth in secure detention on a violation of probation for committing a new law offense even when the score on the DRAI does not mandate secure detention. The Juvenile Justice Information System (“JJIS”) is an extensive database maintained by the Department, and utilized during the process of billing the counties for secure juvenile detention. The reason for the detention stay can be readily ascertained based on information entered into JJIS at the time a juvenile is assessed and detained. For instance, in the case of a violation of probation, there is always a referral for a violation of probation entered by the probation officer. This is true whether the violation is a new law violation or a technical violation of the terms of the probation. In addition, the Department can also ascertain from JJIS whether the juvenile was scored on the new law violation or, alternatively, the underlying charge which resulted in probation. The Department concedes that it can determine, in any given instance, why a juvenile has been detained. As acknowledged by the Department, the responsibility for days, whether predisposition or postdisposition, should be based on the reason for the detention. Probation is considered a postdisposition status. Likewise, detention days of juveniles on probation are postdispositional, and the financial responsibility of the State. Under the Proposed Rules, the only exception are those instances in which a youth is on probation and is detained because the youth is charged with a new violation of law, in which case the detention days prior to final court disposition on the new charge are the responsibility of the counties. This finding is further supported by the Department’s treatment of juveniles on conditional release, which is also a postdispositional status. When a youth is on conditional release with the Department, the youth is on supervision similar to probation supervision. Conditional release and probation contain the same standard conditions. The only essential difference between a youth on “conditional release” and a youth on probation is that a youth on conditional release has the status of commitment rather than probation. There is no real difference in how a probation officer treats a youth on conditional release or a youth on probation and the DRAI does not provide any distinction for the two legal statuses. The Department considers both probation and conditional release qualified postdispositional statuses. Under the Proposed Rules, the counties pay for detention days for youth on probation who commit a new law violation. This is true regardless of whether the youth would be placed in secure detention but for the probation. However, detention days incurred by the same youth who commits a technical violation of probation are deemed the responsibility of the state, since, under the Proposed Rules, the youth has not been charged with a new violation of law. Under the Proposed Rules, when a youth on conditional release commits either a new law violation or technical violation of conditional release and is placed in secure detention, those detention days are to be paid by the State. The Two Day Rule As part of the Notice of Change, the Department added a provision referred to as “the Two Day Rule” to the definitions for pre and postdisposition. The Two Day Rule provides that detention days where the youth is on probation are the responsibility of the state “unless the youth is charged with a new violation of law that has a referral date between zero and two days prior to the detention admission date, as determined by subtracting the referral date in JJIS from the detention admission date in JJIS.” Proposed Rule 63G-1.011(15)(b). Despite conceding that it knows why juveniles are being detained, the Department included the “Two Day Rule” in the Proposed Rule “[b]ecause it is difficult to determine the level of accuracy in the aggregate looking at thousands of cases at once.” Thus, the Two Day Rule captures when the Department receives a referral date for a new criminal charge and presumes that if a juvenile is put in secure detention within two days of that referral date, the detention is for that new charge. In some instances, detention days that should be treated as state days would in fact be treated as county days under the “Two Day Rule.” Mark Greenwald, Director of Research and Planning for the Department, testified: Q. Well, let’s see how factually this would work is that there is a referral for a charge, a new offense, and the youth is detained the next day on a contempt unrelated to that new charge. Isn’t that day going to now be--he is going to be detained because of a violation of the law because of your two-day rule? A. Under the rule, yes, the open charge would count. Q. But if he was a probationer and it was a contempt, that would not have been a county day. That would be a State day. A. Yes. Q. But now because of the two-day rule we will now treat that as a county responsibility and county responsibility for the cost? A. Yes. Other examples were cited in the testimony, such as where there was a pick-up order for a youth on probation who had absconded. Where there was also a new charge, the detention days would be billed to the county, even if the pick-up order was issued prior to the new law violation. Mr. Greenwald testified that when the Department decided to adopt the Two Day Rule, it had done no analysis to determine whether a One Day Rule or a Three Day Rule would more accurately identify probationary youths placed in detention due to a new law violation. Both Judges Orlando and LaRue expressed uncertainty regarding the applicability and utility of the Two Day Rule, noting that the Two Day Rule does not have any correlation or relationship to when or how juveniles are placed in secure detention for violations of probation. Judge LaRue further indicated that the term “referral date” as referenced in the Two Day Rule has no impact on what he does “whatsoever” and is a term: I’ve never heard before. I don’t use that term. I’ve never heard the term. This is something that, in reviewing this potential rule change here – or the rule change, I should say, that’s something I came across and scratched my head a little bit about exactly what it means. I think I know what it means. But it’s not a term that I use – it’s not a term of art, and it’s not a term that I use generally. The evidence adduced at hearing did not establish a rational basis for inclusion of the Two Day Rule provision in the definitions of pre and postdisposition. Notably absent was any credible evidence that use of the Two Day Rule would accurately identify detention days related to new law violations by probationers. To the contrary, the evidence established that use of a blanket metric, arbitrarily set at two days, would under several scenarios improperly shift responsibility for detention days to the counties. Moreover, given the capabilities of the JJIS, there is simply no reason to “assume” that a detention has resulted from a new law violation if within a given period of time from referral, when the Department has the ability to accurately determine the actual reason for the detention. Estimates, Reconciliation and Actual Costs At the start of the fiscal year, the Department provides an estimate to the counties of their respective costs of secure detention which is broken down into 12 installments that the counties pay on a monthly basis. At the end of the fiscal year, the Department performs a reconciliation of those costs based on the “actual costs” and sends a statement to each county showing under or overpayment, and providing for debits and credits as appropriate. The credits or debits would be applied to the current year billing, although they would relate to the previous fiscal year. Proposed Rule 63G-1.013 provides the process for calculating the estimate to each county at the beginning of the fiscal year. As part of this process, the Proposed Rule provides that the Department shall estimate “detention costs, using the current year actual expenditures projected through the end of the fiscal year, with necessary annualized adjustments for any new legislative appropriations within the detention budget entity.” The Department has modified its process in the Proposed Rules so that the estimate of costs is based, to a certain extent, on actual expenditures from the prior year, instead of the appropriation. However, the estimate process also takes into account the appropriation for the upcoming fiscal year, and a portion of the estimate of costs is still based on the appropriation. The Department concedes that there is a need for it to calculate the estimate as accurately as possible, and that there have been occasions in the past where the Department has not provided the counties credits owed as part of the reconciliation process. It is also clear from the record that credits for overpayments have not been provided by the Department to the counties for several fiscal years, beginning in FY 2009-10. Proposed Rule 63G-1.017 provides the annual reconciliation process at year end for determining each county’s actual costs for secure detention. This process includes the calculation of each county’s actual cost which is determined by the number of detention days and a calculation of the actual costs. The total “actual costs” for secure detention are divided by the “total number of service days” to produce an “actual per diem,” which is then applied to each county’s detention days to calculate each county’s share of the actual costs. Proposed Rule 63G-1.011 provides a definition for “actual costs” as follows: [T]he total detention expenditures as reported by the department after the certified forward period has ended, less $2.5 million provided for additional medical and mental health care per section 985.686(3). These costs include expenditures in all fund types and appropriations categories (Salaries & Benefits, Other Personal Services, Expenses, OCO, Food Products, Legislative Initiatives, Fiscally Constrained Counties, Contracted Service, G/A-Contracted Services, Risk Management Insurance, Lease or Lease- Purchase of Equipment, Human Resources Outsourcing, and FCO-Maintenance & Repair). The challengers assert that the proposed rules relating to the reconciliation process are vague, internally inconsistent, and inconsistent with statutory requirements contained in the law implemented. These include, but are not limited to: (1) the definition of actual costs fails to include an exclusion for “the costs of preadjudicatory nonmedical educational or therapeutic services” pursuant to section 985.686(3); (2) the definition of actual costs is over broad by including “expenditures in all fund types and appropriations categories;” and (3) the Proposed Rules fail to provide for input from the counties, as set forth in section 985.686(6). The Proposed Rules do not provide for input from the counties regarding the calculations the Department makes for detention cost share.
The Issue The issue in these consolidated cases is whether the Department of Juvenile Justice (the "Department") assessed Petitioners and Intervenor counties for secure juvenile detention care for fiscal year 2008-2009 in a manner consistent with the provisions of section 985.686, Florida Statutes, and Florida Administrative Code Rules 63G-1.001 through 63G-1.009.1/
Findings Of Fact Parties The Department is the state agency responsible for administering the cost-sharing requirements of section 985.686, Florida Statutes, regarding secure detention care provided for juveniles. With the exception of Intervenor Florida Association of Counties, Inc., the Petitioners and Intervenors (collectively referenced herein as the "Counties") are political subdivisions of the State of Florida. The specific counties that have petitioned or intervened in these proceedings are not "fiscally constrained" as that term is defined in section 985.686(2)(b), Florida Statutes. Each county is required by section 985.686 to contribute its actual costs for predisposition secure detention services for juveniles within its jurisdiction. The Counties are substantially affected by the Department's determinations of the number of secure detention days that are predisposition, and by the Department's allocation of those days among the Counties, an allocation that further determines each county's share of the cost for pre-disposition secure detention. The Counties are further substantially affected by the allocation method itself, which they assert is not authorized by section 985.686. Statutory and rule framework Section 985.686(1), Florida Statutes, provides that the "state and counties have a joint obligation, as provided in this section, to contribute to the financial support of the detention care provided for juveniles." Section 985.686(2)(a), defines "detention care," for purposes of this section, to mean "secure detention."2/ Section 985.03(18)(a), defines "secure detention" to mean "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement." Section 985.686(3), provides in relevant part that each county "shall pay the costs of providing detention care . . . for juveniles for the period of time prior to final court disposition. The department shall develop an accounts payable system to allocate costs that are payable by the counties." In summary, section 985.686 requires each non-fiscally restrained county to pay the costs associated with secure detention during predisposition care, and the Department to pay the costs of secure detention during post-disposition care.3/ The Department is charged with developing an accounts payable system to allocate costs payable by the counties. Section 985.686(5), sets forth the general mechanism for this allocation process: Each county shall incorporate into its annual county budget sufficient funds to pay its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition. This amount shall be based upon the prior use of secure detention for juveniles who are residents of that county, as calculated by the department. Each county shall pay the estimated costs at the beginning of each month. Any difference between the estimated costs and actual costs4/ shall be reconciled at the end of the state fiscal year. Section 985.686(10), provides that the Department "may adopt rules to administer this section." Pursuant to this grant of authority, the Department promulgated Florida Administrative Code Rules 63G-1.001 through 63G-1.009, effective July 16, 2006. Rule 63G-1.004 provides the detailed method by which the Department is to calculate the counties' estimated costs: Each county's share of predisposition detention costs is based upon usage during the previous fiscal year, with the first year's estimates based upon usage during fiscal year 2004-05. Estimates will be calculated as follows: All youth served in secure detention during the relevant fiscal year as reflected in the Juvenile Justice Information System will be identified; Each placement record will be matched to the appropriate referral based upon the referral identification code. Placements associated with administrative handling, such as pick-up orders and violations of probation, will be matched to a disposition date for their corresponding statutory charge; The number of service days in secure detention is computed by including all days up to and including the date of final disposition for the subject referral. Each county will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. The estimated cost will be billed to the counties in monthly installments. Invoices are to be mailed on the first day of the month prior to the service period, so that an invoice for the August service period will be mailed on July 1. Rule 63G-1.008 provides the method by which the Department is to reconcile the estimated payments with the actual costs of predisposition secure detention: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. If a county's actual usage is found to have exceeded the amount paid during the fiscal year, the county will be invoiced for the excess usage. The invoice will accompany the reconciliation statement, and shall be payable on or before April 1. If a county's actual usage was less than the estimated amounts paid during the fiscal year, the county will be credited for its excess payments. Credit will be reflected in the April billing, which is mailed on March 1, and will carry forward as necessary. Under the quoted rules, the Department determines an estimate for each county's share of predisposition secure detention costs. This estimate is provided to the counties prior to the start of the fiscal year in order to allow each county to "incorporate into its annual county budget sufficient funds" to pay for the costs of predisposition secure detention care for juveniles who reside in that county. To prepare this estimate, the Department utilizes the county's actual usage of secure detention facilities for the most recently completed fiscal year.5/ The amount of this usage is shown as that county's percentage of the total usage of predisposition secure detention care by all counties. The resulting percentage for each county is then multiplied by the "cost of detention care as fixed by the legislature" to arrive at the estimated amount due for each county. Rule 63G-1.002(1) defines "cost of detention care" as "the cost of providing detention care as determined by the General Appropriations Act." The term "cost of detention care" is used in rule 63G- 1.004, which sets forth the method of calculating estimnated costs. The term is not used in rule 63G-1.008, which addresses the annual reconcilation by which the Department purports to arrive at the "actual cost of the county's usage" for the fiscal year. The definition of "cost of detention care" references the Legislature's annual General Appropriations Act, which appropriates revenues for the operation of various state functions. An "appropriation" is "a legal authorization to make expenditures for specific purposes within the amounts authorized by law." § 216.011(1)(b), Fla. Stat. The General Appropriations Act for fiscal year 2008-2009 was House Bill 5001, codified as chapter 2008-152, Laws of Florida. Within chapter 2008-152, Specific Appropriations 1073 through 1083 set forth the appropriations for the juvenile detention program. These items included the cost of operating the secure detention centers and identified specific funding sources for the program. These funding sources were the General Revenue Fund ("General Revenue"), the Federal Grants Trust Fund, the Grants and Donations Trust Fund, and an amount identified under the Shared County/State Juvenile Detention Trust Fund ("Shared Trust Fund"). Section 985.6015(2), states that the Shared Trust Fund "is established for use as a depository for funds to be used for the costs of predisposition juvenile detention. Moneys credited to the trust fund shall consist of funds from the counties' share of the costs for predisposition juvenile detention." A total of $30,310,534 was appropriated from General Revenue to the Department for the operation of secure detention centers. This amount was intended to cover the Department's costs in providing post-disposition secure detention services, including the state's payment of the costs for detention care in fiscally constrained counties. See § 985.686(2)(b) & (4), Fla. Stat. A total of $99,583,854 was set forth as the appropriation for the Shared Trust Fund. This amount was not an "appropriation" as that term is defined by statute because it did not authorize a state agency to make expenditures for specific purposes. Rather, this number constituted the amount to be used in the preparation of the preliminary estimates that the Department provides to the counties for the purpose of budgeting their anticipated contributions toward the secure detention costs for the upcoming fiscal year. As will be discussed at length below, a refined version of this number was also improperly used by the Department as a substitute for calculating the counties' actual cost at the time of the annual reconciliation described in rule 63G-1.008. As set forth in rule 63G-1.004, the Department determines the estimate, then it notifies the counties of the estimated amount. The counties make their payments in monthly installments. Rule 63G-1.007 requires the Department to prepare a quarterly report for each county setting forth the extent of each county's actual usage. The counties receive their reports 45 days after the end of each quarter. Subsection (1) of the rule provides that the quarterly report "is to assist counties in fiscal planning and budgeting, and is not a substitute for the annual reconciliation or grounds for adjusting or withholding payment." At the end of the fiscal year, and no later than January 31, the Department must prepare an annual reconciliation statement for each county, to reconcile the difference, if any, between the estimated costs paid monthly by the county and the actual cost of the county's usage during that period. If the county's actual cost is more or less than the estimated payments made during the fiscal year, the county will be credited or debited for the difference. Fla. Admin. Code R. 63G-1.008. Because a county is billed prior to the start of the fiscal year, the Department's initial estimate obviously cannot be based on actual costs for that fiscal year. However, the amount ultimately owed by each county following the annual reconciliation should assess the county's actual costs for predisposition secure detention care during that year, in accordance with section 985.686(5). Prior DOAH litigation The Department's manner of assessing the counties for predisposition secured detention services has been the subject of five prior DOAH cases, all of them involving Hillsborough County. Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07- 4398 (Fla. DOAH Mar. 7, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough I") dealt with the methodology used by the Department to determine the amount that Hillsborough County owed for predisposition secure detention services for fiscal year 2007-2008. Administrative Law Judge Daniel Manry found that the Department's practice of calculating a per diem rate for service days in secure detention was inconsistent with the Department's rule 63G-1.004(2). Instead of limiting Hillsborough County's contribution to a percentage of the amount "appropriated"6/ by the Legislature to the Shared Trust Fund, the Department was including its own General Revenue appropriation in the calculation, which inflated the county's assessment. Hillsborough I at ¶ 24. Judge Manry's findings led the Department to conclude, in its Final Order, that the calculation of a "per diem" rate for the counties should be abandoned as inconsistent with rule 63G-1.004. In a companion case to Hillsborough I, Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07-4432 (Fla. DOAH Mar. 10, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough II"), Judge Manry dealt with Hillsborough County's challenge to the Department's determination of utilization days allocated to the county for predisposition care. In this case, Judge Manry found that the Department had failed to comply with the requirements of section 985.686(6), which provides: Each county shall pay to the department for deposit into the Shared County/State Juvenile Detention Trust Fund its share of the county's total costs for juvenile detention, based upon calculations published by the department with input from the counties. (Emphasis added). The Department had allocated 47,714 predisposition utilization days to Hillsborough County, which was reduced to 47,214 after the reconciliation process. The county argued that the correct number of predisposition days was 31,008. The Department identified 16,206 challenged days under nine categories: contempt of court; detention orders; interstate compacts; pick up orders; prosecution previously deferred; transfer from another county awaiting commitment beds; violation of after care; violation of community control; and violation of probation. Hillsborough II, ¶¶ 25-27. Judge Manry found that the Department had allowed input from the counties during the rulemaking workshops for chapter 63G-1, but had "thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation." Id. at ¶ 28. The data provided by the Department to the county each year did not include final disposition dates, making it virtually impossible for the county to audit or challenge the Department's assessments. Judge Manry also found that the absence of disposition dates deprived the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that the Department had categorized as "predisposition." Id. at ¶ 30. Judge Manry rejected the Department's contention that the county's allegation of misclassification was a challenge to agency policy. He found that the issue of the correct disposition date was a disputed issue of fact not infused with agency policy or expertise that could be determined through conventional means of proof, including public records. Id. at ¶¶ 31-32. The Department failed to explicate "any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days." Id. at ¶ 34. Judge Manry made the following findings of significance to the instant proceeding: The trier-of-fact construes the reference to placement in Subsection 985.03(18)(a) to mean residential placement. Secure detention includes custody in a detention center for both predisposition and post-disposition care. Predisposition care occurs prior to adjudication or final disposition. Post-disposition care occurs after adjudication or disposition but prior to residential placement. Post-disposition care also includes custody in a detention center after final disposition but prior to release. Although this type of post-disposition care comprises a small proportion of total post-disposition care, references to post-disposition care in this Recommended Order include care after final disposition for: juveniles waiting for residential placement and juveniles waiting for release. (Emphasis added). Judge Manry found that "secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care." Id. at ¶ 36. He recommended that the Department enter a final order assessing the county for the costs of predisposition care within the county "in accordance with this Recommended Order and meaningful input from the County." The Department adopted Judge Manry's recommendation. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-1396 (Fla. DOAH June 30, 2009; Fla. Dep't of Juv. Just. Sept. 17, 2009) ("Hillsborough III"), the dispute between Hillsborough County and the Department centered on 9,258 detention days that the Department had assigned to the county for which no disposition dates were available. Hillsborough III at ¶ 2. The Department took the position that it could identify disposition dates for all juveniles who had been transferred to its care and supervision, and that the "no date" cases indicated that those juveniles had not been transferred to the Department and were therefore the responsibility of the county. Id. at ¶¶ 4-5. Hillsborough County contended that any court order in a juvenile detention case is a dispositional order, after which the Department becomes responsible for the expenses related to retaining the juvenile. Id. at ¶ 5. Administrative Law Judge William F. Quattlebaum found that neither section 985.686 nor previous Final Orders suggest that fiscal responsibility for a juvenile is transferred to the Department upon the issuance of any court order. Id. at ¶ 6. He concluded that it is . . . reasonable to presume that the [Department] would have disposition information about juveniles who had been committed to [its] custody, and it is likewise reasonable to believe that, absent such information, the juveniles were not committed to the [Department's] custody. The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Id. at ¶ 13. However, the evidence also indicated that in some of the "no date" cases, the Department's records identified addresses of record that were facilities wherein the Department maintained offices. Id. at ¶¶ 7-8. Judge Quattlebaum recommended that the Department amend the annual reconciliation to give the Department responsibility for the disputed cases which lacked disposition dates but included Department addresses, and to give Hillsborough County responsibility for those cases with no disposition dates and no Department addresses. In its Final Order, the Department accepted the recommendation to the extent that cases lacking disposition dates were properly assigned to Hillsborough County. However, the Department concluded that "there is no legal authority to assign responsibility for detention stays based upon proximity to a Department office location," and therefore declined to amend the annual reconciliation as recommended by Judge Quattlebaum. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-4340 (Fla. DOAH Dec. 18, 2009; Fla. Dep't of Juv. Just. Jan. 20, 2010) ("Hillsborough IV"), the issue was the Department's authority to issue multiple annual reconciliations. On January 30, 2009, the Department issued an annual reconciliation to Hillsborough County along with an invoice for a sizable credit due the county for having made estimated payments in excess of its actual costs for fiscal year 2007- 2008. The county did not object to this reconciliation statement. Hillsborough IV at ¶ 8. On February 24, 2009, the Department issued a second annual reconciliation that increased the county's assigned predisposition days and decreased the county's credit. Id. at ¶ 9. On March 18, 2009, the county sent a letter to the Department requesting clarification as to the two annual reconciliations. The Department did not respond to the letter. Id. at ¶ 10. On May 1, 2009, the county sent a second letter to the Department disputing a portion of the assigned utilization days. The Department did not respond to the letter. However, on May 14, 2009, the Department issued a third annual reconciliation to the county that again increased its assigned predisposition days and reduced its credit. Id. at ¶ 11. On June 4, 2009, the Department issued a fourth annual reconciliation. This reconciliation decreased the county's assigned predisposition days but nonetheless again reduced the county's credit. Id. at ¶ 12. On July 17, 2009, the Department finally responded to the county's May 1, 2009, letter by advising the county to file an administrative challenge to the allocation of predisposition days. Id. at ¶ 13. With these facts before him, Judge Quattlebaum reviewed section 985.686 and the Department's rules and then arrived at the following conclusions: There is no authority in either statute or rule that provides the [Department] with the authority to issue multiple annual reconciliation statements to a county. The [Department] is required by Florida Administrative Code Rule 63G-1.008 to issue an annual reconciliation statement on or before January 31 of each year. The rule clearly requires that March bills (payable in April) reflect any excess payment credit due to a county and that any additional assessment related to excess usage must be paid by a county on or before the following April 1. Absent any evidence to the contrary, the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding.... * * * 28. At the hearing, the parties suggested that the issuance of multiple annual reconciliation statements is the result of the resolution of objections filed by counties in response to the annual reconciliation statement. The resolution of such objections can result in additional costs allocated to another county. There was no evidence that counties potentially affected by resolution of another county's objections receive any notice of the objections or the potential resolution. The county whose allocated costs increase through the resolution of another county's objections apparently receives no notice until the [Department] issues another annual reconciliation statement for the same fiscal period as a previous reconciliation statement. * * * 30. Perhaps the most efficient resolution of the situation would be for the [Department] to require, as set forth at Section 120.569, Florida Statutes (2009), that protests to quarterly reports and annual reconciliations be filed with the agency. Such protests could be forwarded, where appropriate, to DOAH. Related protests could be consolidated pursuant to Florida Administrative Code Rule 28-106.108. Where the resolution of the proceedings could affect the interests of a county not a party to the proceeding, the county could be provided an opportunity to participate in the proceeding (and be precluded from later objection) pursuant to Florida Administrative Code Rule 28-106.109. As is apparent from the lengthy inset quotation, Hillsborough IV touched upon the subject of the Department's "tethering" of the counties, explained at Findings of Fact 50- 53, infra, though the validity of the practice was not directly at issue. Judge Quattlebaum addressed the due process concerns in counties' having no notice of administrative proceedings that could result in the allocation of additional costs to those counties, but did not address the underlying issue of the Department's authority to reallocate costs in the manner described. Judge Quattlebaum recommended that the Department issue a Final Order adopting the January 30, 2009, annual reconciliation for fiscal year 2007-2008. The Department adopted the recommendation and directed that "all successive reconciliations for that fiscal year shall be disregarded and expunged." In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-3546 (Fla. DOAH Feb. 26, 2010; Fla. Dep't of Juv. Just. Mar. 23, 2010) ("Hillsborough V"), the main issue was Hillsborough County's contention that the Department had unilaterally and without authority increased the counties' per diem rate for detention care. The undersigned found that the Department had abandoned the calculation of a per diem rate in light of the findings in Hillsborough I, and that the increased "per diem" rate alleged by the county was simply the result of the Department's recalculation of the counties' estimated costs in accordance with its own rule.7/ Fiscal year 2008-2009 assessments and reconciliation By letter dated June 3, 2008, the Department issued its calculation of the amounts due from each county for their estimated share of the predispositional detention costs for fiscal year 2008-2009, which would run from July 1, 2008, through June 30, 2009. As noted at Finding of Fact 19, supra, the predispositional budget was estimated at $99,583,854. The estimate was based on county utilization during the most recently completed fiscal year, 2006-2007, and the amount identified in the chapter 2008-152, Laws of Florida. The Department made the following estimates for the Counties' shares of predispositional days and costs: Days Percentage of Days Estimated Cost Miami-Dade 47,450 8.56% $8,522,140 Santa Rosa 5,213 0.94% $936,268 Alachua 10,957 1.98% $1,967,905 Orange 43,330 7.81% $7,782,177 Pinellas 32,627 5.88% $5,859,892 Escambia 15,044 2.71% $2,701,940 Hernando 2,978 0.54% $534,856 Broward 38,490 6.94% $6,912,901 City of Jacksonville8/ 28,957 5.22% $5,200,750 Bay 5,409 0.98% $971,470 Brevard 13,760 2.48% $2,471,331 Seminole 12,857 2.32% $2,309,150 Okaloosa 4,612 0.83% $828,327 Hillsborough 44,577 8.04% $8,006,142 43. The Counties incorporated the Department's estimate into their budgets and made monthly payments to the Department. By letter dated December 7, 2009, the Department issued its annual reconciliation for fiscal year 2008-2009. As noted above, the purpose of the annual reconcilation is to "reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." The annual reconcilation set forth the following as the "Actual Predispositional Days" and the "Share of Trust Fund Expenditures" for the Counties, along with the "Difference Debit/(Credit)" between the estimated sums already paid by the Counties and the amount set forth in the annual reconciliation. Those amounts were as Days follows: Percentage of Days Share of Trust Fund Miami-Dade 38,925 11.45% $10,926,117 Santa Rosa 2,555 0.75% $717,180 Alachua 5,511 1.62% $1,546,919 Orange 25,286 7.44% $7,097,695 Pinellas 19,218 5.65% $5,394,428 Escambia 6,734 1.98% $1,890,211 Hernando 1,383 0.41% $388,203 Broward 31,339 9.22% $8,796,752 City of Jacksonville 21,246 6.25% $5,963,681 Bay 3,824 1.13% $1,073,384 Brevard 10,598 3.12% $2,974,823 Seminole 8,944 2.63% $2,510,551 Okaloosa 3,613 1.06% $1,014,157 Hillsborough 27,120 7.98% $7,612,493 The Department's letter advised the counties as follows, in relevant part: . . . Any counties that have a debit amount owed will find enclosed with this correspondence an invoice for that amount. This amount is due by March 1, 2010. A credit amount . . . means the county overpaid based on their utilization and a credit invoice is enclosed with this correspondence. (If the credit amount is larger than the amount currently being paid by the county, the credit will be applied to future invoices until the credit is applied in total.) It is critical that all credits be taken prior to June 30, 2010. . . . (emphasis added). In comparing the estimated costs with the "Share of Trust Fund Expenditures," an untutored observer might expect a correlation between the absolute number of predisposition days and the money assessed by the Department. However, it is apparent that no such correlation was present in the Department's calculations. Dade County, for example, had 8,525 fewer actual predisposition days than the Department estimated at the outset of fiscal year 2008-2009, yet was assessed $2,403,976.89 in the annual reconciliation over and above the $8,522,140 in estimated payments that the county had already made over the course of the year. (For all 67 counties, the Department had estimated 538,836 predispositional days for the fiscal year. The actual number of predispositional days was 339,885.) The correlation, rather, was between a county's percentage of the total number of predispositional days and the money assessed. Though its actual number of days was less than estimated, Dade County's percentage of predispositional days was 2.89% higher than its estmated percentage. Therefore, the Department presented Dade County with an annual reconcilation assessment of $2.4 million. The correlation between percentage of days and the final assessment was caused by the Department's practice of treating the Shared Trust Fund appropriation of $95,404,5799/ as an amount that the Department was mandated to raise from the counties regardless of whether the counties' actual predisposition days bore any relation to the estimate made before the start of the fiscal year. At the final hearing, the Department's representatives made it clear that the Department believed that the Legislature required it to collect the full Shared Trust Fund appropriation from the counties. Reductions in actual usage by the counties would have no bearing on the amount of money to be collected by the Department. The Department views its duty as allocating costs among the counties, the "actual cost" being the Legislature's appropriation to the Shared Trust Fund. Beth Davis, the Department's Director of the Office of Program Accountability, testified that if all the counties together only had one predispositional secure detention day for the entire year, that day would cost the county in question $95 million.10/ In practice, the Department treated the Shared Trust Fund "appropriation" as an account payable by the counties. In this view, the appropriation is the Department's mandate for collecting the stated amount from the counties by the end of fiscal year 2008-2009, even while acknowledging that the Shared Trust Fund number in the General Appropriations Act was no more than an estimate based on the actual usage for the most recently completed fiscal year, which in this case was 2006-2007. Because the Department felt itself bound to collect from the counties the full amount of the Shared Trust Fund appropriation, any adjustment to one county's assessment would necessarily affect the assessments for some or all of the other counties. A downward adjustment in Orange County's assessment would not effect a reduction in the absolute number of dollars collected by the Department but would shift Orange County's reduced burden proportionally onto other counties. The Department has "tethered" the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009. Richard Herring is an attorney and longtime legislative employee, including 16 years as a deputy staff director to the House and Senate Appropriations Committees, and was accepted as an expert in the appropriations process. Mr. Herring was knowledgeable and persuasive as to the appropriations process and the circumstances surrounding the passage of the legislation at issue in this proceeding. Mr. Herring testified as to a "disconnect" in the way the Department treats the Shared Trust Fund program. The Shared Trust Fund appropriation is not an amount of money; rather, it is an authorization to spend money from that trust fund. Mr. Herring found that the Department mistakenly "treats appropriations almost as though it were a revenue-raising requirement." Mr. Herring could not think of any other example in which a state legislative appropriation mandates that another governmental entity such a county spend its own funds.11/ The Department allocates 100% of the Shared Trust Fund appropriation to the counties and collects that amount, even though section 985.686(5) limits the Department's collections to "actual costs." Mr. Herring clearly and correctly opined that the Appropriations Act cannot amend a substantive law on any subject other than appropriations. Therefore, the Department cannot rely on the appropriation made in chapter 2008-152, Laws of Florida, as authority for substituting the appropriated amount for the "actual costs" that the substantive statutory provision allows the Department to collect. Mr. Herring found that it is "a huge stretch to say an appropriation means that I will, no matter what, collect that amount of money." He concluded: [O]ther than this program, I'm not aware of any place in the budget where somebody takes an appropriated amount, where it's not another State agency involved, and tries to true up at the end of the year to make sure that every penny of that . . . authorization to expend, that the cash has come in to match the authorization. * * * Again, an appropriation is not an authorization to levy taxes, fees, fines. It's not an authorization to raise revenues, to collect revenues. It may provide, where there are double budgets between two agencies or within an agency, it may be authority to move money from one pot within the State treasury . . . to another. But to go out and extract money from someone who's not a State agency, who's not subject to receiving appropriation, I don't know any place else that we do that. And I can't come up with another example. Fiscal year 2008-2009 challenges In a letter to the counties dated January 26, 2010, Ms. Davis wrote as follows, in relevant part: I am writing this letter to ensure everyone understands the proper procedure for handling any challenges to the annual reconciliation data sent to you in December 2009 for FY 2008-09 and any future year's reconciliation. As a result of the State of Florida, division of Administrative Hearings (DOAH) challenge in case no. 09-4340 between Hillsborough County (Petitioner) and the Department of Juvenile Justice (Respondent), the reconciliation completed for FY 2008-09 is considered "final" and adjustments can only be made to the reconciliation using the following steps. Counties have 21 days from receipt of the reconciliation to file their challenges to the reconciliation with the Department. The Department will review the challenges and determine if any adjustments need to be made and which counties will be affected by those potential changes. All affected counties will be notified of the potential adjustments even if those counties did not submit a challenge. If challenges to the reconciliation cannot be resolved with the concurrence of all affected counties, the Department will file a request for a hearing with DOAH. Affected counties will be able to present their case regarding the adjustments at the hearing. . . . Florida Administrative Code Rule 63G-1.009 set forth the Department's dispute resolution process. It provided that the quarterly report "marks the point at which a county may take issue with the charges referenced in the report," but that such an objection was not a basis for withholding payment. All adjustments based on a county's objections to quarterly reports would be made in the annual reconciliation. Fla. Admin. Code R. 63G-1.009(1). Though the rule was silent as to counties' ability to file challenges or disputes to the annual reconciliation, the Department interpreted the rule as allowing such challenges. Twelve counties, Pasco, Sarasota, Brevard, Lee, Polk, Broward, Santa Rosa, Pinellas, St. Johns, Hillsborough, Hernando, and Miami-Dade, filed disputes using the form prescribed by the Department, providing specific reference to the disputed charges and setting forth specific charges for the Department to reconsider. The remaining counties did not file challenges to the annual reconciliation. At least some of these counties, including Orange, Alachua and Escambia, had already accepted their overpayment credit in the manner required by the Department's December 7, 2009 letter. See Finding of Fact 46, supra. The record contains letters that Ms. Davis sent to Broward, Hernando, Hillsborough, Pinellas, and Santa Rosa Counties on different dates in January and February 2010, but containing substantially the same text. The letter sent to the deputy director of Broward County's human resources department, dated February 19, 2010, is representative: The Department has received challenges to the 2008-2009 reconciliation from 12 counties, including your challenge. In keeping with the Final Order from DOAH case no. 09-4340 [Hillsborough IV] the Department is evaluating all of the challenged assessments. If the Department determines there are any adjustments that need to be made, we will attempt to reach agreement with all of the counties affected by the changes. However, if we cannot reach agreement, the Department will combine all of the challenges and request an administrative hearing from the DOAH at which all of the issues can be resolved. Because of the number of challenges involved, and time constraints in working on next year's budget, we anticipate the review process taking about 30 days. This time period exceeds the general requirement for referring challenges to DOAH for those counties that have requested an administrative review. We are asking that the counties seeking administrative review will allow the Department additional time. If after the review it is necessary to proceed with an administrative hearing, we will notify all potentially affected counties so that one final resolution can be reached in a timely manner. The Department reviewed the disputes filed by eleven of the twelve counties. In reviewing the disputes, the Department looked only at challenges to specific cases and did not consider broader policy disputes raised by the counties. Ms. Davis testified that Miami-Dade's dispute was not reviewed because Miami-Dade failed to include specific individual records. Ms. Davis stated that Miami-Dade was making a conceptual challenge not contemplated by rule 63G-1.009. Barbara Campbell, the Department's data integrity officer, testified that she reviewed every record that was disputed by a county. Ms. Campbell stated that her review for Hillsborough County alone took about a month. Hillsborough County disputed 50,528 days in 6,963 entries for the following reasons: adults in juvenile status (493 days), charges not disposed (22,495 days), invalid disposition end date (5 days), non-adjudicatory charges (2,987 days), extended period of detention (763 days), invalid zip code (352 days), invalid address (63 days), out of county (88 days), institutional address (1,560 days), escape after disposition (78 days), guardian (21,552 days), transfer after adjudication (45 days), no criminal charge (13 days), and duplicated entry (34 days). Ms. Campbell concluded that Hillsborough County should remain responsible for 45,873 of the rejected 50,528 days. Despite Ms. Campbell's conclusion, the annual reconciliation assessed Hillsborough County for only 27,120 days. This discrepancy was not explained at the hearing. Ms. Campbell testified that one of the corrections she made for Hillsborough County related to the waiting list for placement of juveniles in committed status. At that time, the waiting list was used to determine the commitment date for billing purposes, but Ms. Campbell found that the list contained commitment dates that were several days after the actual commitment dates. This error resulted in a substantial number of extra days being billed to Hillsborough County.12/ Ms. Campbell testified that this sizable error as to Hillsborough County did not prompt a review of the records of all counties to determine if the error was across the board. The Department lacked the time and manpower to perform such a review for all counties. The Department was already stretched thin in reviewing the specific challenges made by the counties. In a letter to the counties dated March 23, 2010, Ms. Davis wrote as follows, in pertinent part: The Department has concluded it [sic] analysis of challenges submitted by counties for the 2008-09 final reconciliation for detention utilization. A total of twelve counties submitted challenges. After reviewing all the data, resulting adjustments affect a total of 45 counties, ten of which are fiscally constrained. Enclosed with this letter is a document outlining the specifics regarding adjustments as they pertain to your county. For counties that filed a challenge with the Department, each type of dispute category is addressed. Counties subsequently affected by the original twelve counties' challenges are impacted by either address corrections and/or as a result of their percentage of the total utilization being changed by adjustments made. An adjustment to a county's percentage of utilization occurs when days challenged are subsequently found to be the responsibility of the State or another county. Changes made based on address corrections are listed on the enclosed disc, if applicable to your county. Each county is asked to review the adjustments and respond back to the Department indicating agreement or disagreement with the findings. If a county has issue with the proposed adjustments they will need to file a petition with the Department to initiate proceedings with the Division of Administrative Hearings pursuant to 28-106-201 [sic] Florida Administrative Code. For the few counties that have already filed a petition with the Department, still complete the attached form and return to the Department but an additional petition is not required. Responses from the counties must be postmarked by April 9, 2010. . . . Ms. Davis' March 23, 2010, letter was the first notice given to non-disputing counties by the Department that twelve counties had filed disputes to the annual reconciliation. Thus, counties that believed they had closed their ledgers on fiscal year 2008-2009 were forced to reopen their books to deal with the Department's "adjustments" to the amounts of their final annual reconciliations. Attached to the letter was a spreadsheet containing the "08-09 Pending Challenge Adjustments" containing the following information for the Counties: Adjusted Adjusted Days Percentage Share of Trust Fund Miami-Dade 38,944 11.77% $11,229,123 Santa Rosa 1,980 0.60% $570,914 Alachua 5,581 1.67% $1,589,043 Orange 27,048 8.17% $7,799,027 Pinellas 15,523 4.69% $4,475,906 Escambia 6,734 2.04% $1,941,683 Hernando 1,327 0.40% $382,628 Broward 31,231 9.44% $9,005,154 City of Jacksonville 21,300 6.44% $6,141,647 Bay 3,830 1.16% $1,104,343 Brevard 8,816 2.66% $2,542,008 Seminole 8,965 2.71% $2,584,970 Okaloosa 3,613 1.09% $1,041,773 Hillsborough 22,465 6.79% $6,477,564 72. In addition to making adjustments to the accounts of the challenging counties, the Department modified the amounts set forth in the annual reconciliation for all 38 non-fiscally constrained counties.13/ A total of 9,010 days were reclassified as post-dispositional and therefore shifted from the counties' to the Department's side of the ledger. This shift did nothing to lessen the overall burden on the counties in terms of absolute dollars because the overall amount the Department intended to collect remained $95,404,579. Of the twelve counties that challenged the annual reconciliation, five did not contest the Department's adjustment and are not parties to this proceeding: Pasco, Sarasota, Lee, Polk, and St. Johns. The record does not indicate whether these counties notified the Department that they accepted the adjustment. Four counties that challenged the annual reconciliation, and are parties to this proceeding, notified the Department that they accepted the adjustment: Pinellas, Brevard, Hillsborough, and Santa Rosa. However, because all affected counties did not accept the adjustments, the Department did not refund monies to the counties that were awarded a credit by the adjustment. In correspondence with Pinellas County's Timothy Burns, Ms. Davis stated that the credit set forth in the adjustment would not be applied to the county's account "until the final decisions from the DOAH hearing." At the hearing, Ms. Davis explained the Department's action as follows: Each county's utilization is considered a percentage of the total utilization and that percentage is multiplied by the expenditures. So if you change one number in that mathematical calculation, it has a rippling effect and will affect the other-- in this case it's 45 counties. So all of the counties had to accept those changes and agree to the modifications, those pending adjustments, if we were going to modify the reconciliation, the agency's final action. To restate, the following are the estimates, the annual reconciliation each County: amounts, and the adjustment amounts for Miami-Dade: 47,450 8.56% $8,522,140 38,925 11.45% $10,926,117 38,944 11.77% $11,229,123 Santa Rosa: 5,213 0.94% $936,268 2,555 0.75% $717,180 1,980 0.60% $570,914 Alachua: 10,957 1.98% $1,967,905 5,511 1.62% $1,546,919 5,581 1.67% $1,589,043 Orange 43,330 7.81% $7,782,177 25,286 7.44% $7,097,695 27,048 8.17% $7,799,027 Pinellas 32,627 5.88% $5,859,892 19,218 5.65% $5,394,428 15,523 4.69% $4,475,906 Escambia 15,044 2.71% $2,701,940 6,734 1.98% $1,890,211 6,734 2.04% $1,941,683 Hernando 2,978 0.54% $534,856 1,383 0.41% $388,203 1,327 0.40% $382,628 Broward 38,490 6.94% $6,912,901 31,339 9.22% $8,796,752 31,231 9.44% $9,005,154 City of Jacksonville 28,957 5.22% $5,200,750 21,246 6.25% $5,963,681 21,300 6.44% $6,141,647 Bay 5,409 0.98% $971,470 3,824 1.13% $1,073,384 3,830 1.16% $1,104,343 Brevard 13,760 2.48% $2,471,331 10,598 3.12% $2,974,823 8,816 2.66% $2,542,008 Seminole 12,857 2.32% $2,309,150 8,944 2.63% $2,510,551 8,965 2.71% $2,584,970 Okaloosa 4,612 0.83% $828,327 3,613 1.06% $1,014,157 3,613 1.09% $1,041,773 Hillsborough 44,577 8.04% $8,006,142 27,120 7.98% $7,612,493 22,465 77. Overall, the 6.79% Department $6,477,564 had estimated there would be 538,836 predisposition utilization days for all counties. The actual number of predisposition days indicated in the annual reconciliation was 339,885, some 198,951 fewer days than estimated. The number of actual days was further decreased to 330,875 in the Department's March 23, 2010, adjustment. Nonetheless, the absolute number of dollars assessed by the Department against the counties remained unchanged because the only variable in the Department's formula for ascertaining a county's "actual costs" was the county's percentage of the total number of predisposition days. The $95 million set forth in the General Appropriations Act for the Shared Trust Fund remained unchanged. Thus, even if a county's actual number of predisposition days was several thousand fewer than the Department originally estimated, the county's assessment could be higher than the estimate because that lesser number of days constituted a higher percentage of the overall number of predisposition days. The City of Jacksonville, for example, was found by the adjustment to owe $940,897 more than the original estimate despite having actual usage that was 7,657 days fewer than the original estimate. The Counties forcefully argue that Department's use of the General Appropriations Act as a substitute for calculating the counties' actual costs results in a gross disparity between the amounts per day paid by the state and those paid by the Counties for the same services at the same facilities, echoing the argument made by Hillsborough County in Hillsborough V. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: Q. But in terms of the actual cost of detention, there's no difference in the cost of a predisposition detention day and a post-disposition detention day? A. None. They receive the same services: food, clothing, supervision, mental health, medical, all of those issues. Every youth receives the same services in detention. Ms. Davis testified that the General Appropriations Act provided the Department with General Revenue sufficient to cover roughly 20% of the cost of all secure detention.14/ Ms. Davis conceded that approximately 38% of the secure detention utilization days were post-disposition days that were the Department's responsibility. She further conceded that through the Shared Trust Fund the counties are paying the 18% difference for the state's portion of secure detention. Evidence introduced at the hearing established a downward trend in the use of predisposition detention utilization since fiscal year 2005-2006, but no corresponding decrease in the amount that the counties pay for detention services. Mr. Herring, the appropriations expert, testified that as a result of the manner in which the Department allocates costs, counties pay approximately $284 per day for detention services, whereas the state pays only $127 per day. Mr. Burns, bureau director of Pinellas County's Department of Justice and Consumer Services, calculated that an average per diem rate for all detention days, predisposition and post-disposition, would be $229.56. Ms. Davis testified that if the utilization ratio and the budget ratio were the same--in other words, if the Legislature fully funded the state's share of detention services--then the per diem rates for the counties and the Department would be almost the same. Despite the fact that the counties were partially subsidizing the state's share of secure detention for juveniles, the Department nonetheless reverted $9,975,999 of unspent General Revenue funds back to the state's general revenue in fiscal year 2008-2009. Of that amount, approximately $874,000 had been appropriated for secure detention. Section 985.686(3) requires the counties to pay the costs of providing detention care for juveniles prior to final court disposition, "exclusive of the costs of any pre- adjudicatory nonmedical educational or therapeutic services and $2.5 million provided for additional medical and mental health care at the detention centers." (Emphasis added). The underscored language was added to the statute by section 11, chapter 2007-73, Laws of Florida, the appropriations implementing bill for fiscal year 2007-2008. Vickie Joan Harris, the Department's budget director, testified that the Legislature appropriated an additional $2.5 million for medical and mental health care in 2007-2008, but that no additional money has been appropriated for those services since that fiscal year. For fiscal year 2008-2009, the counties shared these costs with the Department. The Counties are correct in pointing out that the cost of a utilization "day" is the same whether it occurs predisposition or post-disposition, and their desire for a per diem basis of accounting is understandable from a fiscal planning perspective. If the Department announced a per diem rate at the start of the fiscal year, then a county could roughly calculate its year-end assessment for itself without the sticker shock that appears to accompany the annual reconciliation. However, there are two obstacles to such an accounting method, one practical, one the product of the Department's purported understanding of the term "actual cost" as used in section 985.686(5). The practical objection is that the actual cost of maintaining and operating the Department's secure detention system is not strictly related to the number of days that juveniles spend in detention facilities. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: For whatever reasons, detention population has decreased significantly over the last few years. However, we have to maintain the capability of providing adequate and proper services for 2,007 beds. In our system, we do not staff centers based on the number of beds or the number of youth who are in the center. We typically follow a critical post staffing process. We know that within center, there are certain posts that have to be manned 24/7, such as intake. We have to be able to provide staff to perform intake duty should a youth be delivered to the center for detention. We have to provide someone in our master control unit 24/7. Those people are responsible for outside communications, directing staff to where they are needed within the center, answering the phones inside the center for requests for assistance, monitoring the camera system to provide assistance. So that position, that post has to be staffed 24/7, whether we have one kid in the center or 100 kids. It's irrelevant. Mr. Dunn went on to describe many other fixed costs of operating a secure detention facility for juveniles. He also discussed the Department's ongoing efforts to identify redundant facilities and streamline the program in light of falling usage, but the point remains that the Department's actual costs do not fluctuate significantly due to usage. Simply keeping the doors open carries certain costs whether one child or 100 children come into the facility, and a pure per diem assessment approach might not cover those costs. While the evidence establishes that there is a significant degree of county subsidization of the state's share of juvenile detention costs, there is a lack of credible evidence that a pure per diem approach would capture a given county's "actual costs" in keeping with the mandate of section 985.686.15/ It is apparent that the Counties have seized on the per diem concept not merely because it was the measure used by the Department prior to Hillsborough I, but because the system used for fiscal year 2008-2009 gave the Counties no way to even roughly predict their annual expenses for predisposition secure juvenile detention. At the start of the fiscal year, a non-fiscally constrained county received an estimate of its predisposition days and its estimated portion of the Shared Trust Fund. The county made monthly payments based on those estimates. As the year progressed, it became apparent to the county that its actual usage was proving to be far less than the estimate. The annual reconciliation confirmed that the county had fewer predisposition days than the Department had estimated, which led the county to expect a refund. In defiance of that expectation, the county was presented with a bill for additional assessments. In the case of Miami-Dade and Broward Counties, the additional bill was for millions of dollars despite the fact that their actual usage was several thousand days fewer than the Department's estimate. The Counties were, not unreasonably, perplexed by this turn of events. This perceived anomaly points to the second obstacle to the Counties' proposed per diem accounting method: the Department's working definition of "actual costs" is unrelated to anything like a common understanding of the term "actual costs." It is a fiction that renders nugatory any effort by the Counties to limit their assessed contributions to the Shared Trust Fund to the money that was actually spent during the fiscal year. As to fiscal year 2008-2009, the Department simply made no effort to ascertain the counties' actual costs or, if it did, it failed to disclose them to the counties. "One of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the Legislature." City of Venice v. Van Dyke, 46 So. 3d 115, 116 (Fla. 1st DCA 2010), citing Reform Party of Fla. v. Black, 885 So. 2d 303, 312 (Fla. 2004). The Legislature did not define the term "actual cost" in section 985.686. "Actual cost" is not a term of art.16/ The Florida Statutes are replete with uses of the term "actual cost" that rely on the common meaning of the words and do not attempt further definition.17/ Those few sections that do provide definitions of "actual cost" indicate that the Legislature is capable of limiting that common term when appropriate to its purposes.18/ Nothing in Section 985.686 gives any indication that the Legislature intended the words "actual costs" to carry anything other than their plain and ordinary meaning. By statute, the Department is obligated to reconcile "any difference between the estimated costs and actual costs . . . at the end of the state fiscal year." § 985.686(5), Fla. Stat. By rule, this reconciliation is to be performed on a county by county basis: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. Fla. Admin. Code R. 63G-1.008(1). Nothing in the statute or the implementing rules authorizes the Department to base its annual reconciliation on the anything other than actual costs. Section 985.686(5) speaks in terms of the individual county, not in terms of "counties" as a collective entity. Rule 63G-1.008(1) states that the Department will provide a reconciliation statement to "each paying county." That statement must reflect the difference between the estmated costs "paid by the county during the past fiscal year and the actual cost of the county's usage during that period." Like the statute, the rule speaks in terms of the individual county; the rule does not purport to authorize the Department to treat the 67 counties as a collective entity. Neither the statute nor the rule supports the rationale that the Shared Trust Fund liability of one county should in any way depend upon the costs incurred by any other county. At the end of the fiscal year, the amount collected in the Shared Trust Fund should be no more or less than the amounts of the counties' actual costs. Nothing in the statute or the implementing rules authorizes the Department to tether the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009, as opposed to paying a reconciled amount based on each county's actual costs of providing predisposition secure detention services for juveniles within its jurisdiction.19/ Nothing in the statute or the implementing rules has changed in such a way as to vitiate Judge Quattlebaum's conclusion in Hillsborough IV that "the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding" pursuant to section 120.569, Florida Statutes. See Finding of Fact 37, supra. Therefore, the December 7, 2009, annual reconciliation constituted final agency action as to all counties that did not contest the reconciliation in accordance with the Department's January 26, 2010, letter. The Department did not have the statutory authority to recalculate the amounts set forth in that annual reconciliation for the 55 counties that did not file challenges.20/ As regards the parties to this proceeding, the following Counties did not contest the December 7, 2009, annual reconciliation: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa. As to these Counties, the annual reconciliation should have constituted final agency action and spared them further involvement in litigation. The amounts set forth for these Counties in the annual reconciliation should be reinstated and their accounts reconciled on that basis, as follows: Reconciled Share of Trust Fund Alachua $1,546,919 Orange $7,097,695 Escambia $1,890,211 City of Jacksonville $5,963,681 Bay $1,073,384 Seminole $2,510,551 Okaloosa $1,014,157 105. The following Counties did contest the reconcilation pursuant to the Department's January 26, 2010, letter: Brevard, Broward, Santa Rosa, Pinellas, Hillsborough, Hernando, and Miami-Dade. By letter dated March 23, 2010, the Department informed all 67 counties that it had completed its analysis of the challenges21/ submitted by 12 counties and was instituting adjustments to the accounts of 45 counties, including 10 that were fiscally constrained. For the reasons stated above, the March 23, 2010, adjustment was effective only as to the 12 counties that challenged the annual reconciliation. Of those 12, seven are parties to this litigation. Of the seven Counties, four accepted the adjustment announced by the March 23, 2010, letter: Pinellas, Brevard, Hillsborough, and Santa Rosa.22/ As to these four Counties, the Department's March 23, 2010, adjustment letter should have ripened into final agency action without need for further litigation.23/ The amounts set forth for these counties in the adjustment letter should be reinstated and their accounts reconciled on that basis, as follows:24/ Share of Trust Fund Santa Rosa $570,914 Pinellas $4,475,906 Brevard $2,542,008 Hillsborough $6,477,564 To this point, the resolution of the amounts owed has been based on the simple principle of administrative finality as to 10 of the Counties that are parties to this proceeding: proposed agency action that is accepted, affirmatively or tacitly, by a party becomes final agency action as to that party and as to the agency upon the expiration of the time for requesting an administrative hearing. However, there remain three Counties that challenged the annual reconciliation, contested the later adjustment, and continue to assert their statutory right to be assessed only the "actual costs" associated with predisposition secure detention: Hernando, Miami-Dade, and Broward. During the course of this litigation, some of the parties asked the Department to perform an alternative calculation of the fiscal year 2008-2009 reconciled amounts. In an email dated January 12, 2011, the Department transmitted to the Counties a speadsheet that the Department titled "2008/2009 Secure Detention Cost Sharing Data Analysis," taking care to point out that the document was "not an amended or revised reconciliation."25/ Several Counties, including the three whose contributions to the Shared Trust Fund remain unresolved, have urged this tribunal to adopt this most recent analysis as the most accurate available measure of their pre-disposition detention days and actual costs of detention. In its Proposed Recommended Order, the Department also argues that it should be allowed to employ this "more accurate methodology" to amend the annual reconciliation as to all counties. Ms. Campbell, the Department's data integrity officer, testified as to several changes in programming that are reflected in the results of the January 12 analysis. The dispositive change for purposes of this order is that the analysis was performed in accordance with the Department's new rule 63G-1.011(2), which provides: "Commitment" means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation. Ms. Campbell stated that in previous reconciliations and adjustments, the Department stopped billing the counties at the point a final disposition was given by the court. Under the new rule, the Department would continue billing the counties if the disposition did not result in the child's commitment to the Department. Florida Administrative Code Rule 63G-1.011 became effective on July 6, 2010, well after the close of fiscal year 2008-2009 and well after the Department's annual reconciliation and adjustments for that fiscal year were performed. Aside from the increased accuracy claimed by the Department, no ground has been cited for its retroactive application in this case. Further, rule 63G-1.011 has recently been found an invalid exercise of delegated legislative authority on the precise ground that its narrow definition of "commitment" is in conflict with section 985.686(5), Florida Statutes, which limits the counties' responsibility to "the period of time prior to final court disposition." Okaloosa Cnty. et al. v. Dep't of Juv. Just., Case No. 12-0891RX (Fla. DOAH July 17, 2012).26/ In other words, the Department's prior practice was more in keeping with its statutory mandate than was the "correction" enacted by rule 63G-1.011. In fairness to the Department, it should be noted that its revised definition of commitment was at least partly an outcome of Hillsborough III. In that decision, Judge Quattlebaum concluded, "The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Nothing in the statute or the previous Final Orders indicates otherwise." Hillsborough III at ¶ 13. On this point, however, Hillsborough III adopts the position of the Department that was not seriously challenged.27/ However, section 985.686(3) requires the county to pay "the costs of providing detention care... for the period of time prior to final court disposition." The statute does not state that "final court disposition" is equivalent to "commitment to the Department."28/ Okaloosa County provides a more comprehensive analysis statute: the Department is responsible for the expenses of all post-disposition detention, not merely detention of juveniles who are committed to the Department. The evidence in the instant case made it clear that probation is another post- disposition outcome that may result in detention, and that the Department has made a practice of charging the counties for detentions related to this disposition. Judge Anthony H. Johnson, the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit, testified as to the procedures that a circuit court follows after the arrest of a juvenile charged with delinquency: Okay, we'll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are . . . detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it's regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That's also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it's possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past the 21 days. That's relatively unusual. It's usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they're found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—- there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It's really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it's the judge, but it's not really.29/ And that decision is made—- is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention-- let me not say scores. If it's a level eight or above, then the child will remain detained. If it's not that, the child will be released and told to go home on home detention awaiting placement. Here's where things get, I think, probably for your purposes, a bit complex. Let's say at the disposition, the child-- the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child's on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I'm going to handle this by holding the child in contempt for disobeying the court's order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Judge Johnson testified that "by definition, anything after the disposition hearing would be post-disposition." He went on to explain: You know, the problem here, I think, is we have a couple of different dispositions. We have one disposition that's the initial disposition. And if the child is put on probation, and then violates the probation, then you have a whole other hearing as to whether or not there was a violation of probation. And, if so, you have a whole new disposition hearing as to what the sanction ought to be for violation of probation. The probation issue was a key point of contention between the Counties and the Department. The Department does not consider itself responsible for detentions of juveniles who been given a disposition of probation. Thus, when a juvenile is picked up for a violation of probation, the Department considers that detention to be "pre-disposition" and chargeable to the county. The Counties contend, more consistently with section 985.686(3), that probation is a consequence of "final court disposition," and any subsequent detentions arising from violation of probation should be considered post-disposition and paid by the Department. Aside from the legal barriers, there are practical considerations that render the January 12, 2011, analysis unsuitable as a measure of the Counties' actual costs. Ms. Davis testified that the analysis is "a little deceiving because it only includes an analysis based on commitment." She noted that the analysis did not take into account the adjustments that had been made in light of the twelve counties' challenges to the annual reconciliation. Ms. Davis stated: "We simply ran an analysis per the request of the counties as to what the days would be based on commitment only, using our new programming that we do today. . . [W]e couldn’t submit it as a reconciliation because it's not correct. There are some address errors. We didn't fix those." Ms. Davis testified that the Department never had any intention that the January 12 analysis should be considered a reconciliation. The programming and the data set had changed since the annual reconciliation. The information in the analysis was not the same information that was analyzed in the reconciliation. Comparing the reconciliation to this analysis would be "apples to oranges" in many respects, according to Ms. Davis. Based on the foregoing, it is found that the January 12, 2011, analysis does not establish the "actual costs" of the remaining counties and is not an accurate basis for settling their final accounts for fiscal year 2008-2009. It is further found that, because the Department has never attempted to ascertain the Counties' actual costs and provided no such data to this tribunal, the record of this proceeding offers insufficient evidence to establish the actual costs for secure juvenile detention care for fiscal year 2008- 2009 for Hernando, Miami-Dade, and Broward Counties. The Department conceded that its annual reconciliation and the adjustment thereto were based on inaccurate data and included significant errors. The January 12, 2011, analysis was based on a definition of "commitment" that has since been found in derogation of section 985.686(5), Florida Statutes. None of the analyses performed by the Department went beyond the calculation of the number of detention days to the calculation of any county's actual costs of providing detention care. The Department bears the burden of providing a reconciliation to each of these three counties that reflects their actual costs of providing secure juvenile detention care. Hernando, Miami-Dade, and Broward Counties are each entitled to an accounting of their actual costs without regard to the costs of any other county.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that: Reinstates the amounts set forth in the Department's December 7, 2009, annual reconciliation letter for the following Counties: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa; Reinstates the amounts set forth in the Department's March 23, 2010, adjustment letter for the following Counties: Pinellas, Brevard, Hillsborough, and Santa Rosa; and Provides that the Department will, without undue delay, provide a revised assessment that states the actual costs of providing predisposition secure juvenile detention care for fiscal year 2008-2009 for the following Counties: Hernando, Miami-Dade, and Broward. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 22nd day of August, 2012.
The Issue Whether Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against female employees of the Wakulla County Sheriff’s Office so as to create an intimidating, hostile, or offensive work environment, and whether Respondent committed battery on female employees of the Wakulla County Sheriff’s Office, on the dates alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement and correctional officers in Florida. § 943.12, Fla. Stat. (2013). Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, including those requiring that a certified officer maintain good moral character, and to take disciplinary action against officers found to have failed to maintain those qualifications. On September 9, 2005, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 251492. On November 16, 2010, Respondent was certified as a law enforcement officer, and holds Law Enforcement Certificate Number 294018. Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. Respondent was credibly described as a stickler for rules. He was a strict supervisor and harsh with subordinates, but was recognized as knowing policy and getting things done. By all credible accounts, the Wakulla County jail was, during the period in question, a place at which flirtation, cutting up, joking around, playing pranks, and horseplay between employees of the WCSO was routine. Deputy Metcalf testified that the flirtatious behavior included male and female officers hugging and rubbing one another’s shoulders. The rough and crude humor, language, and practical jokes were a means by which the employees in a stressful occupation could burn off steam. The evidence suggests that Respondent was an active participant in the horseplay and, though his workplace behavior was not entirely out of place in the social context of the Wakulla County jail, he would occasionally take it to extremes, particularly in his interactions with female subordinates. He was known to place female officers in an “arm-bar” (also called an “arm-lock”), an incapacitating maneuver by which the person’s arm is twisted and brought behind their body. He would also poke the female officers in the ribs with a force that could cause a bruise, or pull their hair.3/ All in all, the evidence suggests that Respondent occasionally acted without the degree of restraint and decorum that one would expect of a supervisory officer of the WCSO. However, except as otherwise specified herein, there is little to suggest that the acts were sexually motivated. The Jail Security System Prior to 2011, the system of security cameras at the Wakulla County jail was inadequate and in disrepair. There were numerous locations in the jail facility that were out of camera range, and some of the cameras that were in place were inoperable. The old system did not record audio. In 2011, the security system was substantially upgraded. The new system covers most of the “holes” left by the old system, and records audio. The system is motion-activated, so that anytime motion is detected in a coverage area, the cameras and audio activate and record any activity. All activity recorded by the security system is stored on a hard-drive, and can be reviewed by authorized officials of the WCSO. As the hard-drive is filled, it records over the oldest data on a continuous loop. Once data is recorded over, it cannot be recovered. The evidence was vague as to the length of time that data can be recovered from a particular camera, and the length varies depending on the rate of activity in an area covered by a particular camera. The most persuasive evidence indicated that recorded activities can be reviewed for a period of at least 30 days in an area of heavy activity. Since the control room is manned at all times, and is generally a hub of activity with officers coming and going at all times, the video and audio recordings for that area are generally continuous. Thus, activities occurring in the control room are recorded and available for review for at least 30 days. Although there are a few nooks and corners in which one may be out-of-sight of the cameras, they are few in number. In addition, several areas are not under video monitoring, including the quartermaster’s office. The control room contains monitors that display the video feeds from each of the security cameras at the jail. Live video is continuous, although it is recorded only when movement was detected. Although audio operates under the same parameters as video, it can be turned on or off in the control room live feed. In addition to the monitors in the control room, the offices of higher-ranking officers, including those of Captain Taylor and Major Miller, have monitors on which the security camera feeds may be viewed at the officer’s discretion. The officers occasionally use the security cameras to monitor the jail staff to ensure they are not loafing. The WCSO officers and employees are well aware that actions taking place in the jail are under surveillance. They know where the cameras are located, and understand the capability of the system to observe and record their actions. The evidence was persuasive that the general time limit on the availability of recordings was also known by jail personnel, particularly those in supervisory positions. The security camera system is frequently used to resolve complaints regarding prisoners and staff. If a prisoner has made a complaint against a WCSO staff person, it is a simple matter to go to the date and time of the incident, and review the tape. If an incident is detected, a permanent DVD copy can be made to preserve the evidence. The system is also used if cell inspections reveal unauthorized materials in the possession of the prisoners. The security camera recordings have been used to detect who on the WCSO staff were providing “contraband,” including extra food and blankets, to the prisoners. The ability to use the security camera system for one of its primary purposes is dependent upon complaints being made within a reasonable time from the occurrence of the event, so as to allow for the security camera recordings to be accessed before being recorded over. In the event of any sort of complaint, the first responsibility of a supervisor is to “lock in” the date and time of the incident and review the security camera recordings. Training at the Academy From February 2010 through November 2010, Respondent attended the Field Training Officer’s Program at the Pat Thomas Law Enforcement Academy (Academy). Other attendees included then-Sgt. Lindsay Maxwell, then-Sgt. Julie Martin, Ashley Alexander, Lisa Hummell, Gibby Gibson, Michael Zimba, Jason Barksdale, and John David Metcalf. Transportation to and from the Academy was provided by the WCSO using one of two vans. Deputy Gibson was the normal driver for the trips between the Wakulla County jail and the Academy. He was generally regarded as a fast driver, being heavy on the gas and the brakes, and known for cornering at high speed. As a result, it was easy to get thrown around if not seated and buckled in. Attendance at the Academy was generally necessary for accreditation and career advancement as a law-enforcement officer. However, several of the officers selected to attend the Academy believed attendance to be mandatory, and were dissatisfied with the fact that they were not being paid for the hours spent in travel and attendance. They were vocal in their dissatisfaction. Several of the attendees believed Respondent to be a “snitch” or a “tattletale,” relating their conversations in the van to higher-ranking officers. Deputy Hummell blamed Respondent for word of their dissatisfaction with not being paid for attendance, among other conversations, making its way to Captain Taylor. As a result of the general air of dissatisfaction expressed by attendees, Captain Taylor gave them the option to quit the training. None did so. In order to confirm the nature of the training, each of the participants was thereafter required to sign a statement agreeing that their attendance was voluntary. Over time, some of the attendees opted to ride in personally-owned vehicles rather than the WCSO van. After the completion of training, then-Sgt. Martin was promoted to the rank of lieutenant, and was thereupon assigned to supervise one of the jail shifts. Overlapping Shifts The Wakulla County jail, being a facility that is in use 24 hours per day, is manned in shifts. Officers are assigned to a shift, and get to know those persons sharing that shift. Starting in early 2011, and continuing until March 2012, Lieutenant Martin and Respondent supervised separate shifts. Lieutenant Martin generally assigned deputies to a duty station and allowed them to routinely work that station. There was no evidence that deputies in Lieutenant Martin’s shift were moved around to other stations. Deputy Jacques was in Lieutenant Martin’s shift, as were Deputy Hummell and Deputy Metcalf, among others. Respondent had a practice of assigning deputies in his shift to different duty stations for the purpose of making sure that each deputy was familiar with each duty station. The deputies in Respondent’s shift were used to the protocol. In March, 2012, Respondent suggested that he and Lieutenant Martin overlap their shifts, so that each of the command officers could get to know the deputies on the other’s shift. Lieutenant Martin agreed that was a good idea and the shift overlap was implemented. When the shift overlap was implemented, Respondent began to assign deputies in Lieutenant Martin’s shift to different duty stations when they were under his supervision. Respondent would ask deputies to identify which area they believed to be the worst to work, and would then assign them to that area. The reassignments, though logical, were unpopular with the officers in Lieutenant Martin’s shift, who were not used to Respondent’s style of supervision. After the overlapping shifts were implemented, Deputy Jacques was occasionally assigned to the Station 1 control room, away from her normal duty station in the control room for the “B side” of the jail, which housed female inmates and local inmates. Respondent’s reassignment of Deputy Jacques was consistent with his practice of rotating shifts to familiarize deputies with all duty stations. The Precipitating Incident and Report On April 6, 2012, Deputy Middlebrooks, an acting shift supervisor, had called in sick. Respondent was called in to supervise the 5:00 a.m. shift. He assigned Deputy Jacques to Station 1. Deputy Metcalf, who was normally assigned to Station 1, was assigned to visitation. During the course of the morning, Respondent moved from his seat at the “lieutenant’s desk” in the control room to sit next to Deputy Jacques at the control panel. While there, Respondent was seated close to Deputy Jacques, and was observed by Deputy Metcalf to be touching her shoulders and hair. Deputy Jacques testified that Respondent was seated too close to her for comfort, and would touch her leg, pull on her hair, and poke her in the side. Deputy Jacques asked him to stop without success. Later in the day on April 6, 2012, Deputy Metcalf was told by Deputy Jacques that Respondent’s sitting so close made her feel uncomfortable. Deputy Metcalf related that conversation to Lieutenant Martin. Lieutenant Martin approached Deputy Jacques on April 7, 2012 and asked her about the incident. Deputy Jacques denied that Respondent had acted inappropriately towards her, stating that “we’re fine, we’re good,” and that if Lieutenant Martin had any questions she “could go review the cameras.” Lieutenant Martin reported the allegation to Captain Taylor. Lieutenant Martin testified that she merely related the incidents as reported to her, and that she never said “sexual harassment.” Lieutenant Martin further testified that Captain Taylor advised that “it's not considered sexual harassment until she tells him to stop several times.” Captain Taylor testified that Lieutenant Martin came to his office and advised him that Deputy Metcalf saw Respondent sitting very close to Deputy Jacques in the control room, and that Deputy Jacques subsequently advised Deputy Metcalf that it made her feel uncomfortable. Lieutenant Martin further advised Captain Taylor that Deputy Jacques did not want to file a complaint. Captain Taylor denied Lieutenant Martin’s assertion that he dismissed her report because sexual advances must be rebuffed several times before it becomes sexual harassment. His testimony is credited. There being no complaint, and nothing related by Lieutenant Martin that would necessitate a review of the security cameras, a review was not made. At some point, though the date was not specified, Deputy Johnson advised Lieutenant Martin that Respondent had fondled Deputy Jacques in the jail’s medical unit. There is not a shred of evidence, from Deputy Jacques or otherwise, to support that allegation. Deputy Johnson also told Lieutenant Martin that Respondent offered to drop an incident involving the provision of extra bed linens to inmates in exchange for a kiss. Despite the seriousness of the unsubstantiated account of fondling, Lieutenant Martin did not approach Deputy Jacques to ascertain its validity, nor did she attempt to review any tapes to substantiate the allegation.4/ Lieutenant Martin did not report the new information of either incident to any higher authority. “A while later,” Lieutenant Martin spoke with Karen Ward, who indicated that Deputy Jacques was considering leaving the WCSO due to Respondent’s behavior. As a result of that conversation, Lieutenant Martin again spoke with Deputy Jacques. During that conversation, Deputy Jacques was told by Lieutenant Martin “that I was not alone, that it happened to her, too, and there's others . . . . I felt like if she's going to say something, I'm going to say something, too.”5/ Deputy Jacques thereafter advised Lieutenant Martin of the incidents that appear in the written complaint in this case, including the allegation that on April 6, 2012, Respondent placed Deputy Jacques in a headlock and attempted to drag her into the control room bathroom. Despite her professed concern for Deputy Jacques, and despite her knowledge that “you can't go back more than a month or month-and-a-half” to review security camera recordings, Lieutenant Martin still did not file a complaint, and made no effort to review the security system recordings of the alleged incident. Rather, Lieutenant Martin went on a two-week vacation commencing on or about May 1, 2012. Lieutenant Martin returned from her two-week vacation on May 18, 2012, and returned to work on May 19, 2012. She then went to Major Miller regarding Deputy Jacques’ allegations. Major Miller advised her to file a complaint, which Lieutenant Martin finally did on May 23, 2012. The Investigation After Lieutenant Martin filed her complaint with Major Miller, it was assigned to then-Captain Carroll to initiate a supervisor’s inquiry. The evidence establishes that Captain Carroll coordinated the early stages of the investigation with Lieutenant Martin. Lieutenant Martin approached witnesses to instruct them that they were wanted in Captain Carroll’s office. On more than one occasion, the nature of the inquiry was divulged by Lieutenant Martin, though there is no evidence of any lengthy conversation. During Captain Carroll’s interview of Deputy Jacques, she related the March 14, 2012, offer to drop the contraband blanket issue in exchange for a kiss, and the April 6, 2012, incident in the control room. At the conclusion of her interview, Captain Carroll advised Deputy Jacques that “probably when you get your notes, there's going to be a lot more that you remember.” Deputy Jacques’ notes reflect no other incidents. There is no evidence to suggest that Deputy Jacques discussed or disclosed the incidents of touching, poking, and grabbing that formed the basis for much of her testimony in this case. At the conclusion of the supervisor’s inquiry, the matter was reviewed by Major Miller and the undersheriff. They authorized a further investigation of the complaint. On June 11, 2012, the investigation was assigned to Lieutenant Deal, a WCSO Internal Affairs investigator. At the time, the allegations involving Deputy Jacques consisted only of the two incidents as related to Captain Carroll. During the course of the investigation, Lieutenant Deal was provided with a series of text messages exchanged between Deputy Jacques and Karen Ward. Although the text messages, which were sent within days of the alleged incident, contained statements that could be construed as exculpatory, there was no effort made to inquire of Deputy Jacques as to the context or circumstances of the text messages. Lieutenant Deal questioned the witnesses who appeared at the supervisor’s inquiry, two additional witnesses, Respondent, and three witnesses identified by Respondent pertaining to an allegation as to the motive of Major Miller in encouraging the complaint. As a result of his interviews, Lieutenant Deal ultimately expanded the investigation to include allegations of improper conduct made by Lieutenant Martin, Deputy Hummell, Deputy Hughes, and Ms. Boyatt. As a result of his investigation, Lieutenant Deal concluded that there were “sustained charges.” However, in keeping with the absolute lack of specificity of the facts upon which the allegations in this case were based, Lieutenant Deal was unable to identify what the “sustained charges” may have been, other than they were “[c]onduct, policy charges. I don't have the file exactly before me right now to tell you what they were, but they were conduct charges, harassment, and I think threatening and bullying others were the two charges.” Surprisingly, Lieutenant Deal’s investigative report was not made a part of the record.6/ The Effect of Delay on the Availability of Evidence Security camera recordings are routinely made part of investigations of activities occurring at the jail. Lieutenant Deal testified that, except for the instant case, he has “always been able to get video if I initiated the cases or they were in my hands within a couple of days.” In this case, by the time the complaint was assigned to Captain Carroll, the tapes of the incident had been recorded over. When Lieutenant Martin approached Deputy Jacques on April 7, 2012 to inquire about the incident, Deputy Jacques rightly suggested to Lieutenant Martin that “[i]f you really want to see what happened to me, review the cameras.” The video and audio recording would have been easily and readily available, and would have constituted the best and most accurate account of the incident. Despite Deputy Jacques’ suggestion that she look at the cameras, Lieutenant Martin declined to “lock in” the date and time of the incident and review the security camera recordings. She reported to Captain Taylor only that Deputy Metcalf thought Respondent was sitting too close to Deputy Jacques, that Deputy Jacques denied the incident, and that Deputy Jacques would not file a complaint. On or about April 11, 2012, Deputy Jacques, in an effort to discourage Respondent’s attentions, advised Respondent that she had received a call from “higher-ups” inquiring whether Respondent had acted inappropriately, though in reality she had not. In response, Respondent requested that Captain Taylor conduct an investigation to clear his name, which would have, almost of necessity, involved reviewing the security camera recordings. For reasons that were unexplained, the request was not acted upon, and the security camera recordings were not reviewed or preserved. Even when Lieutenant Martin obtained the additional information that ultimately formed the basis for the complaint, including the serious and inflammatory allegation that Respondent placed Deputy Jacques in a headlock and attempted to drag her into the bathroom, she did not promptly file a complaint or advise anyone of the allegations so that the tapes could be preserved.7/ Rather, despite her professed concern for Deputy Jacques’ safety, she went on a two-week vacation to St. Georges Island. The preponderance of the evidence suggests that when Lieutenant Martin left for her vacation, tapes of the incident involving Deputy Jacques would not yet have been recorded over. Lieutenant Martin waited until May 23, 2012 to file the complaint, well beyond the time that recordings of the incident would have been recorded over. There was no rational explanation offered as to why Lieutenant Martin waited to file the complaint, particularly since some of the allegations in this case involve Respondent’s alleged acts towards Lieutenant Martin, acts that allegedly occurred over many years, and since Lieutenant Martin purportedly knew of others who were subject to Respondent’s advances. It is of significant concern to the undersigned that the report of the incident was made only after the time for which a video record would be available had elapsed. The incident that precipitated the investigation occurred on April 6, 2012. There were no witnesses other than Deputy Jacques and Respondent, thus leading to a “he said, she said” scenario upon which Respondent’s professional license rests. However, the unblinking eye of the security system was available for its intended use of resolving complaints and disputes had it been promptly reviewed. Paragraph 2.(a) - Julie Martin In paragraph 2.(a) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2006 and June 7, 2011, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Lieutenant Martin began her employment with the WCSO on September 14, 1999 as a dispatcher. In 2004, she was transferred to corrections for about one year, after which she was assigned to the booking room, a position she held until 2010. In 2010, she was transferred to Respondent’s shift at the jail. In February of 2010, Lieutenant Martin, who then held the rank of sergeant, was selected to attend the Academy. At the conclusion of training, she was promoted to the rank of lieutenant, the rank she has held since. At one time, Lieutenant Martin and Respondent were friends, socializing and dining with one another at their respective houses. Hands Down the Pants The most serious “allegation” (see Endnote 1) involving Lieutenant Martin was an incident that allegedly took place in the van in which Respondent “stuck his hands down my pants -- his fingers down my pants.” Lieutenant Martin testified that she was sitting next to Deputy Hummell, and Respondent and Deputy Metcalf were sitting in the back seat. She testified that Respondent stuck his hand between her shirt and her pants, and that the act was witnessed by Deputy Hummell. Deputy Hummell’s description of the incident was generally consistent with that of Lieutenant Martin. She testified that Lieutenant Martin and she were seated together on one of the bench-style seats. Lieutenant Martin was “leaned up,” talking to Deputy Alexander. Deputy Hummell testified that she turned to say something to Lieutenant Martin when she observed Respondent grab Lieutenant Martin by her belt and the top of her pants and pull her back. Deputy Hummell indicated that Lieutenant Martin “turned around and swatted at [Respondent] and told him to stop it.” Deputy Metcalf recalled the incident slightly differently, testifying that he was seated by himself in the back row of seats, and Respondent was seated next to Lieutenant Martin in a middle row. Lieutenant Martin was leaned forward in her seat talking to Ms. Hummel, who was seated in the next row forward. Deputy Metcalf admitted that leaning up over the seat in front could be dangerous if the driver, Deputy Gibson, was to slam on the brakes. They were all talking, when Deputy Metcalf observed Respondent stick his hand, palm facing out, inside the back of Lieutenant Martin’s pants. Respondent did not deny grabbing Lieutenant Martin by the top of her pants. He testified that Lieutenant Martin was leaned forward in her seat to see what the people in front were doing. Respondent testified credibly that he “reached up and grabbed her belt loop and told her to sit down before I have to do an incident report on why somebody got hurt and wasn't wearing a seat belt.” Respondent’s general description of the incident, though not the motive, is consistent with that of Lieutenant Martin and Deputy Hummell. Respondent’s account of the incident and his motive for grabbing Lieutenant Martin’s pants finds substantiation in Lieutenant Martin’s explanation of the reason that she stopped riding in the van, which was that “I had to work with him all day long and then I had to go to school with him, and I didn't want him to grab my pants and pull me back in my seat and tell me that, you know, it's a security risk that I'm sitting too far up in my seat, that I needed to be seated back. And I didn't want to have to deal with that every day.” That explanation corresponds perfectly with both the act and the intent described by Respondent. The evidence in this case, taken as a whole, demonstrates that the incident at issue was motivated by issues of safety and as a forceful means of getting Lieutenant Martin to stay seated in the van. The suggestion that it was for more salacious purposes is rejected. Lieutenant Martin also testified to a second incident in which she was leaning forward in her seat talking to another passenger. Respondent put his finger in her belt loop, pulled her back, and said that she needed to sit back in her seat. No other witness testified as to that incident. The incident as described, which is not itself sexual in nature and which was unaccompanied by sexual comments or innuendo, appeared, again, to be related to safety and Respondent’s desire to avoid the work of having to write an incident report. Other Alleged Incidents The remainder of Lieutenant Martin’s testimony regarding Respondent’s interactions with her consisted of a litany of incidents that occurred sporadically over the years. Lieutenant Martin testified that, in 2006 when she worked in booking, Respondent occasionally placed her in an arm bar,8/ that he would, on occasion, grab and pull her hair, and that one time Respondent poked Lieutenant Martin hard in the ribs and said “I bet Tommy [Lieutenant Martin’s husband] will like this bruise.” The incidents included no sexually suggestive comments or innuendo. Lieutenant Martin testified that on one occasion in 2010, while riding in the van to the Academy, she was lying down on the bench seat. Respondent reached over the seat and poked her in the stomach wanting her to wake up and “saying that I was not tired, I did not need to be sleeping on the van.” The evidence is not clear and convincing that the act of poking Lieutenant Martin in the stomach as described, which is not itself sexual in nature, and which was unaccompanied by sexual comments or innuendo, constituted sexual harassment. Furthermore, Lieutenant Martin testified that she never revealed that allegation until she was seated in the witness box testifying at the hearing. Therefore, that allegation could not have formed the basis for any allegation in the Administrative Complaint. At some time while she was under Respondent’s supervision, Lieutenant Martin was stationed in the control room. Respondent came in and sat next to her. Lieutenant Martin testified that Respondent pulled her chair around to face him and grabbed the top of her legs above the knee and squeezed. Lieutenant Martin did not report that incident to Captain Carroll during the course of his investigation. She further testified to another incident when Respondent came up behind her and grabbed her ponytail. Though Lieutenant Martin’s allegations were not specific as to time, it can be reasonably inferred that the incidents occurred at some time during the five-and-a-half year period alleged. However, there is no evidence that either incident formed the basis for any specific allegation in the Administrative Complaint. The incidents described included no corroboration, were not specific as to time, and none resulted in any contemporaneous report of the conduct to a responsible authority. The incidents described by Lieutenant Martin formed no basis for the May 23, 2012, complaint filed on behalf of Deputy Jacques. Many of the incidents described by Lieutenant Martin are consistent with the descriptions of the general level of workplace behavior that existed in the social atmosphere of the Wakulla County jail, and were not grossly out of line from the air of rude and crude horseplay and flirtatiousness that existed at the jail. The incidents described, if true, suggest that Respondent’s behavior was, at times, childish and unprofessional. However, this proceeding is not based on allegations that Respondent may have acted like a jerk,9/ but is based on allegations that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position. The incidents described, occurring over a period of years, did not involve unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. The evidence was insufficient to demonstrate that the incidents were severe or pervasive enough to create an objectively hostile or abusive work environment, or were so objectively offensive as to alter the conditions of Lieutenant Martin’s employment. As to paragraph 2.(a) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2006 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin. Paragraph 2.(b) - Lindsay Jacques In paragraph 2.(b) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Deputy Jacques was first employed by the WCSO in 2006, when she was assigned to records, a position she held for approximately one year. She was then assigned to road patrol for a year and a half, and then to criminal investigations for approximately two years. Deputy Jacques was assigned to corrections in March 2010. The evidence suggests that, at one time, Deputy Jacques and Respondent were friends. When Deputy Jacques was on road patrol, she would occasionally ask Respondent to meet her outside when she was in the vicinity of the jail, where they would talk. Their conversations over time included, in addition to more mundane topics, matters of a personal nature. Deputy Jacques’ supervisor during the period in question was Lieutenant Martin, except when she was supervised by Respondent during the periods when shifts were being overlapped. Deputy Jacques’ primary duty station was Station 4, the control room for the “B side” of the jail, which housed female inmates and local inmates. Deputy Jacques understood that flirting at the jail was commonplace, and she participated along with other deputies. It was not unusual for deputies and employees to engage in banter in the nature of “hey, you look pretty today,” and “you're looking hot today.” Deputy Jacques did not consider that level of flirtatiousness to be of a sexual manner or inappropriate. Station 4 was in proximity to the quartermaster’s office, to which Respondent was assigned at some point after January 2011. Deputy Jacques testified that on a typical day, she would walk by the door to the quartermaster’s office more than 20 times. Respondent frequently called Deputy Jacques into the quartermaster’s office. Most of the times were for innocuous reasons, e.g., to look at emails he had received, or to show her pictures of his children or his dogs. Deputy Jacques testified that on some of the occasions she was summoned into the quartermaster’s office, Respondent would grab her knee, pull her hair, or place her in an arm bar. Deputy Jacques was sufficiently uncomfortable with Respondent’s conduct towards her that she instructed Deputy Metcalf to call her or come get her after 10 or 20 seconds if he saw her enter the quartermaster’s office. On or about March 14, 2012, Respondent called Deputy Jacques into the quartermaster’s office to advise her that she had been observed providing female inmates with extra blankets, which were considered to be contraband, but that if she gave him a kiss everything would go away. Deputy Jacques’ contemporaneous notes of the incident indicate that her response was “fuck you, write me up then.” There were no witnesses to the alleged incident, and the incident was not reported. The fact that Deputy Jacques could respond to a superior officer in that manner without retribution, and the fact Deputy Jacques was not disciplined for providing inmates with extra blankets despite the refusal of Respondent’s “offer,” suggests that the incident was one in keeping with the general flirtatiousness that was commonplace at the jail. On April 6, 2012, while filling in as Supervisor, Respondent assigned Deputy Jacques to Station 1, and Deputy Metcalf to visitation. The reassignments were consistent with Respondent’s practice of rotating shifts to familiarize employees with all duty stations. There were routinely two chairs positioned in the control room in front of the control board. It was not unusual for two people to be seated there, because “[i]t’s nice to have some help sometimes.” The evidence is persuasive that the control room, being a hub of activity at the jail and with people constantly coming in and out, usually had four to six chairs or more scattered about for officers to sit in. On the morning of April 6, 2012, Respondent came to sit next to Deputy Jacques at the control panel. While there, Deputy Jacques testified that Respondent was touching her leg and shoulders, pulling her hair, and poking her in the side. Respondent’s actions made Deputy Jacques feel very uncomfortable, and she asked him to stop without success. At some point during the day, as Deputy Jacques was standing near the Station 1 coffee machine, Respondent approached and placed her in an arm-bar while asking “does it hurt? Does it hurt?” Other than his hand, no other part of Respondent’s body was touching Deputy Jacques. Deputy Jacques asked Respondent to leave her alone. In response, Respondent placed her in a headlock from the side. Other than Deputy Jacques and Respondent, there was no live witness to the incident. Deputy Jacques testified that Respondent performed the headlock in an effort to pull her into the bathroom. She inferred that the move was for sexual purposes, an assertion vigorously denied by Respondent. The undersigned finds that, given the known presence of video and audio surveillance in the control room, and the frequency with which jail personnel came in and out of the control room, it is implausible to the point of disbelief that Respondent was attempting to drag Deputy Jacques into the bathroom in order to sexually force himself on her. Rather, as with many of the other incidents described herein, the pervasive sense was that Respondent was taking the roughhousing and horseplay that normally occurred at the jail to a degree that was more related to boorish and/or bullying behavior than to sexual behavior. On April 7, 2012, Lieutenant Martin was advised by Deputy Metcalf that he had observed Respondent sitting too closely to Deputy Jacques at the control panel, a situation that seemed inappropriate. Lieutenant Martin called Deputy Jacques to inquire about the incident, and later went to see Deputy Jacques for the same purpose. Deputy Jacques denied that anything untoward happened, but invited Lieutenant Martin “to look at the cameras” if she wanted to see what happened. On April 9, 2012, Lieutenant Martin related her discussion with Deputy Jacques to Captain Taylor. There is no evidence that Lieutenant Martin advised Captain Taylor of anything other than the allegation that Respondent was sitting too close to Deputy Jacques. She advised Captain Taylor that Deputy Jacques indicated that everything was “cool,” and did not want to file a complaint. There is no suggestion that any conduct involving arm-bars or the headlock was related to Captain Taylor. Lieutenant Martin did not suggest that the security tapes should be reviewed, and they were not. On April 11, 2012, Respondent approached Deputy Jacques in “A side Medical” to talk. There, in an effort to discourage Respondent’s childish and tiresome behavior, Deputy Jacques told Respondent that “higher-ups” had called her to inquire about Respondent’s harassment. Her statement, which was not true, had the desired effect, as Respondent engaged in no conduct felt by Deputy Jacques to be inappropriate after April 11, 2012. Between April 12, 2012 and April 17, 2012, Deputy Jacques engaged in a series of text messages with Karen Ward. On April 12, 2012, Deputy Jacques stated that “I could handle it..he [Respondent] never cross the line..u [sic.] know like vulgar or anything like that but it was extremely uncomfortable.” She further stated that “[b]ut look if station is being recorded they can c [sic.]...how he was acting and see that the shift was not exag[g]erating.” Deputy Jacques testified that she made the exculpatory comments because Ms. Ward “has a big mouth,” and she didn’t want her telling things to Lieutenant Martin. Believing she had put an end to Respondent’s behavior, Deputy Jacques just wanted the incident to go away. On April 17, 2012, Deputy Jacques texted Ms. Ward and stated that “I know how to kid around..we all flirt at the office..but when it's inappropriate, I say something n [sic.] I try to stop it.” At some point prior to the filing of the complaint, Lieutenant Martin approached Deputy Jacques to advise her that there were other officers to whom Respondent had acted inappropriately. As a result of that conversation, Deputy Jacques determined that she was not the only person who was the subject of Respondent’s inappropriate conduct. As a result, Deputy Jacques was emboldened, deciding that “I felt like if she's going to say something, I'm going to say something, too.” The evidence in this case is compelling that Respondent’s conduct towards Deputy Jacques was childish, boorish, and oft-times overly physical. The evidence is equally compelling that Deputy Jacques was justifiably sick of Respondent’s behavior. However, as will be discussed in greater detail herein, in order to find that Respondent violated professional standards, the evidence, taken as a whole, must produce a firm belief or conviction, without hesitancy, that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position that rose to the level necessary to demonstrate that Respondent was not of good moral character. In this case, there are factors that prevent the establishment of the “firm belief or conviction” that Respondent’s interactions with Deputy Jacques rose beyond boorish and inappropriate behavior to the level of sexual harassment, i.e., sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, necessary to sustain the violations alleged. First are Deputy Jacques’ contemporaneous text messages that indicate Respondent never crossed the line or did anything that she considered to be vulgar. Second, is the social milieu of the Wakulla County jail, in which flirtatious behavior, horseplay, and pranks, often of a physical nature, were the norm, and was behavior engaged in by Deputy Jacques. In addition to the foregoing, Deputy Jacques testified that Respondent made inappropriate comments such as “you look good,” or “I love the way you bend over” on numerous unspecified occasions. She further testified that Respondent once made a sexual comment involving Deputy Jacques’ difficulty with conceiving children. Given the general theme of Respondent’s conduct, the undersigned is convinced that the comments as related by Deputy Jacques were accurate. However, Petitioner failed to elicit testimony as to when those comments were made. Given the burden of proof in this case, as discussed herein, that critical element of the allegations against Respondent -- as pled -- cannot be inferred. As indicated herein, the undersigned accepts that Respondent engaged in conduct that those in civilian life would find unacceptable in the workplace. However, the issue in this case is not whether Respondent acted in a manner unbefitting a supervisory officer of a sheriff’s department, but rather whether Petitioner met its burden of proving that Respondent’s conduct was “sexual harassment,” as defined, by clear and convincing evidence. As to paragraph 2.(b) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques. Paragraph 2.(c) - Lisa Hummell (n/k/a Lisa Hummell Crum) In paragraph 2.(c) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Detention Deputy Hummell was first employed by the WCSO in 2004. She began her career as a dispatcher, and then moved to the purchasing department. In 2006, she attended the Wakulla Correction Institute, and received her certification as a correctional officer. She then served as a detention deputy at the Wakulla County jail. Deputy Hummell was selected to attend the Academy from February 2010 until November, 2010. While attending the Academy, she was assigned as a road patrol deputy. While attending the Academy, Deputy Hummell rode in the van provided by the WCSO. The van was scheduled to leave the Wakulla County jail at 4:30 p.m. so as to allow time for the riders to get something to eat, and make it to the Academy for the start of classes at 6:00 p.m. On a number of occasions, Deputy Hummell was late arriving at the jail after completing road patrol. Respondent, who was the ranking officer in the van, rarely waited for Deputy Hummell, even when she called to let them know she was going to be running only five or ten minutes late.10/ As a result, Deputy Hummell would drive her patrol car to the Academy, and later ended up driving her personal vehicle. Deputy Hummell believed that Respondent did not want her riding in the van, which made her feel as though she was not part of the team. At one time, during a conversation with Deputy Hummell’s trainer and supervisor in the field training program, Captain Ganey, Deputy Hummell complained about Respondent directing the van to leave if she was late. During that conversation, Deputy Hummell stated that "[t]here's that Barwick. He's a snitch. Everything we say on that bus he goes back to Captain Taylor with.” Deputy Hummell felt as though Respondent treated her unfairly, which caused her significant aggravation. Deputy Hummell received her law enforcement certification on November 16, 2010, and returned to duty at the Wakulla County jail. She has been assigned to the Wakulla County jail since that time. At some time after having received her law enforcement certification, and after returning to duty at the jail, Deputy Hummell was assigned to Station 1 with Respondent. During the shift, she left her phone in the control room while attending to business elsewhere in the jail. When she returned, Respondent suggested he had reviewed photographs on her phone. According to Deputy Hummell, the photographs on her telephone included two of her in an unclothed state that she had taken to send to her boyfriend. Respondent insinuated that he had forwarded the photographs to himself. Over the next months, on five or six occasions, if Deputy Hummell had a disagreement with Respondent, or said something “smart-alec” towards him in a group, Respondent would pat his pocket where he kept his phone or say something like “you know what I got.” Respondent denied having accessed photographs from Deputy Hummell’s telephone. Deputy Hummell never saw the photographs on Respondent’s phone, and there was no physical evidence that Respondent actually saw or obtained the photographs of Deputy Hummell’s breasts. Deputy Hummell could recall no witnesses to any of the events regarding Respondent’s alleged access to her telephone, or to his implied threats to reveal the photographs. Deputy Hummell never complained about the incident to the WCSO human resource officer despite policies in place that “[s]exual harassment, battery-type -- anything in general that you didn't feel was comfortable” was to be documented and reported. Respondent’s alleged access of Deputy Hummell’s telephone involved no inappropriate touching. Based on the record of this proceeding, the evidence is not clear and convincing that the alleged incident occurred as described by Deputy Hummell. On a subsequent occasion, Respondent had access to Deputy Hummell’s telephone. The circumstances are in dispute, and in any event are not material. At the end of the incident, Respondent sent a text message from Deputy Hummell’s telephone to Karen Kemp, a WCSO dispatcher. The substance of the text was to the effect of “hey, I think you're sexy, we need to get together.” As it turned out, Ms. Kemp had given her old telephone to her 14-year-old son, who received Respondent’s message. Upon learning of the recipient, Respondent sought out Ms. Kemp to apologize and explain that the message was intended as a joke. The evidence suggests that all involved recognized the text as an act of obnoxiousness on the part of Respondent rather than a serious act of a sexual nature. Though Respondent’s act of texting Ms. Kemp from Deputy Hummell’s telephone was childish, it was not an act that constituted sexual harassment involving physical contact or misuse of position by inappropriate touching. Under the facts of this case, the text message to Ms. Kemp could not reasonably have created an intimidating, hostile, or offensive work environment for Deputy Hummell. During the hearing, testimony was elicited from Deputy Hummell regarding allegations of other incidents including Respondent’s response to a practical joke involving a photograph taken while he was sleeping on-duty with a coffee filter having been placed on his head by fellow officers, of Respondent placing Deputy Hummell in an arm-bar, of Respondent grabbing Deputy Hummell’s keys, and of Respondent “flicking” the antenna of Deputy Hummell’s radio, which she wore on her belt. There was no competent, substantial, and credible evidence that any of those incidents occurred on or between January 1, 2011 and April 7, 2012. As to paragraph 2.(c) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell. Paragraph 2.(d) - Vickie Hughes In paragraph 2.(d) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Deputy Hughes has served as a detention deputy since 2005. In the period since, she has moved around, and has served a period at the Wakulla County jail during which Respondent was her supervisor. The period during which Deputy Hughes was supervised by Respondent was not specified. On two or three occasions over the years, Respondent brushed Deputy Hughes’ breast with his elbow. Each incident occurred at the doorway of Station 1. The area at the doorway of Station 1 is very narrow due to the location of the lieutenant’s duty desk and the edge of the control panel desk, which has created an opening to and from the control room through which two persons could not pass without turning sideways. Lieutenant Deal testified, credibly, that “if you turn sideways and you pass, you most likely are going to brush against each other.” The incidents described by Deputy Hughes were few in number, widely spaced in time, and were unaccompanied by any sexually suggestive comments. Deputy Hughes felt they were intentional because Respondent did not apologize but rather “had a smart look on his face and laughed about it.” Deputy Hughes’ impression of Respondent’s actions may have been influenced by the palpable animosity that she exhibited towards Respondent. In any event, there was insufficient evidence to infer any intent on Respondent’s part to brush Deputy Hughes’ breast in passing, and no clear and convincing evidence that the act constituted sexual harassment involving physical contact or misuse of position on the part of Respondent. Deputy Hughes could not place when the alleged breast brushes may have occurred. When asked specifically if they occurred after January 1, 2011, Deputy Hughes testified that “I don't know exactly when it -- I mean, I don't know exactly when it happened, the years. It could have happened before. It might have happened before. I mean, I've been there since 2005, so I don't know exactly when it happened.” Thus, there is insufficient evidence to support a finding that the incidents occurred between January 1, 2011 and April 7, 2012, as alleged. Deputy Hughes further testified that on one occasion, Respondent stated that “his goal was to get into her pants.” She did not write down an account of the incident “because I blew it off,” and did not otherwise report the incident. There were no witnesses to the incident, and it was denied by Respondent. Deputy Hughes testified that the incident occurred “way before the complaint was filed” on May 23, 2012, perhaps years before. Thus, there is insufficient evidence to support a finding that the alleged statement, even if made, was made between January 1, 2011 and April 7, 2012. As to paragraph 2.(d) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes. Paragraph 2.(e) - Charlie Boyatt In paragraph 2.(e) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Ms. Boyatt was hired as an employee of the WCSO starting on December 25, 2009. In February 2010, she became a corrections officer assistant at the jail. She was moved back to dispatch in September 2010, back to corrections in January 2011, and back to dispatch in January 2012, a position that she remained in up to the time of the hearing. Ms. Boyatt was under Respondent’s supervision from February, 2010 until June or July 2010. When she started at the jail in February 2010, Ms. Boyatt did her training in the control room. After her training, and until her transfer to dispatch in September 2010, Ms. Boyatt was assigned to the control room during every shift. After Ms. Boyatt completed her training in 2010, Respondent would occasionally sit next to her at the control panel and monitors to talk. Ms. Boyatt testified that Respondent would occasionally reach across her chest to get something. Ms. Boyatt was not clear as to whether he may have brushed her breast when doing so, though she admitted that Respondent never deliberately grabbed her breasts. If she moved to get up, Respondent would catch her leg in between his knees. Ms. Boyatt further testified that on other occasions, Respondent would poke her in the ribs or under the arm at a pressure point. Ms. Boyatt’s descriptions of the incidents, which were denied by Respondent, were suggestive of boorishness rather than sexuality. During the period of Ms. Boyatt’s supervision by Respondent, she testified that Respondent squeezed her knee on several occasions while “messing around” with her, and placed her in an “arm-lock” on five or six occasions. Other than the incidents described, Respondent made no sexually suggestive comments, did not touch Ms. Boyatt’s breasts or buttocks, or engage in other acts that might be construed to be sexual harassment. Shortly after she started at the jail in February 2010, Ms. Boyatt testified that she was told by Lieutenant Martin that Respondent had bragged to Lieutenant Martin’s husband that he was having sex with Ms. Boyatt. There is no direct evidence of Respondent having made that comment other than Lieutenant Martin’s third-hand and hearsay statement. Ms. Boyatt never asked Respondent if he made the statement. Respondent denied that he made any such statement. Later, Ms. Boyatt testified that Respondent told her that his wife and children were out of town for spring break, and that he had the house to himself. Ms. Boyatt did not testify that there was any suggestion of an invitation in the comment. Though Ms. Boyatt testified that Respondent made her uncomfortable, “there really wasn't a whole lot I could do being under his supervision.” The evidence is clear and convincing that the incidents described by Ms. Boyatt, even assuming their truth, occurred in 2010 during the period that Ms. Boyatt was under Respondent’s supervision. After her return to the jail in January 2011, Ms. Boyatt was not under Respondent’s supervision. She was assigned by her supervisor to the control room every once in a while, but her normal duty station for the period from January 2011 until January 2012 was on “A-side” with the immigration inmates. There was no competent, substantial, and credible evidence of Ms. Boyatt having any contact with Respondent while assigned to the jail in 2011. Ms. Boyatt testified that “just a few times” after her return to dispatch in January 2012, at which time she was pregnant, Respondent would “pop up” and grab her shoulders. She would tell him to “quit or go on, because I would be working.” There was nothing in the testimony or otherwise of any sexual intent on Respondent’s part, or that Ms. Boyatt ascribed any sexual meaning to the visits. The act of grabbing Ms. Boyatt by the shoulders was not inconsistent with the social norms that existed at the Wakulla County jail as described by several credible witnesses, including Deputy Metcalf who indicated that such was commonplace. Ms. Boyatt could not identify any “exact date” on which those incidents occurred. Respondent never reported any of the incidents described in her testimony. The greater weight of the competent, substantial, and credible evidence in this case demonstrates that the events described in paragraphs 128 through 133 occurred prior to January 1, 2011. The evidence is not clear and convincing that the incidents during which Respondent grabbed Ms. Boyatt by the shoulders in 2012 occurred on or before April 7, 2012. Furthermore, the evidence is not clear and convincing that those incidents, which are not themselves sexual in nature, and which were unaccompanied by sexual comments or innuendo, were such to constitute sexual harassment. As to paragraph 2.(e) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt. Paragraph 2.(f) - Lisa Hummell (n/k/a Lisa Hummell Crum) In paragraph 2.(f) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Lisa Hummel, by actually touching or striking Lisa Hummell or intentionally causing bodily harm to Lisa Hummell against her will. As set forth in paragraphs 109 through 115 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Deputy Hummell at any time on or between January 1, 2011 and April 7, 2012. Thus, as to paragraph 2.(f) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Deputy Hummell against her will. Paragraph 2.(g) - Charlie Boyatt In paragraph 2.(g) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Charlie Boyatt, by actually touching or striking Charlie Boyatt or intentionally causing bodily harm to Charlie Boyatt against her will. As set forth in paragraphs 128 through 133 and paragraph 136 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Ms. Boyatt at any time on or between January 1, 2011 and April 7, 2012. Rather, the evidence clearly establishes that most of the incidents described by Ms. Boyatt occurred in 2010. As to the incidents in which Respondent “grabbed” Ms. Boyatt by the shoulders in 2012, the evidence does not establish that the incidents occurred on or before April 7, 2012. Thus, as to paragraph 2.(g) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Ms. Boyatt against her will.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of May, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 30th day of May, 2014.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
The Issue The issue in this case is whether the Department of Juvenile Justice (Respondent) properly assessed secure juvenile detention center costs charged to Hillsborough County, Florida (Petitioner), pursuant to Section 985.686, Florida Statutes (2009).
Findings Of Fact This dispute involves costs charged to the Petitioner for juveniles residing in Hillsborough County and detained in centers operated by the Respondent during the 2007-2008 fiscal year. The Petitioner is required by statute to pay the cost of "pre-disposition" secure detention for such juveniles. The Respondent is required by statute to pay the cost of "post- disposition" secure detention for such juveniles. The significance of "disposition" is not relevant to this proceeding. The Respondent also pays the cost for secure detention for juveniles residing in "fiscally constrained counties" and for juveniles with residence addresses outside the State of Florida. Responsible counties are prospectively assessed for projected costs in advance of each fiscal year, based on actual experience in the preceding fiscal year. By statute, the Respondent is required to determine on a quarterly basis whether the funds being remitted by counties are sufficient to meet their obligations under the statute. Counties may raise objections to the quarterly report, but the statute prohibits any adjustments on the basis of the quarterly report. The Respondent is also required by statute to reconcile differences between estimated costs and actual costs at the end of the state fiscal year. The statute provides that adjustments cannot be made until the annual reconciliation occurs. By administrative rule, an annual reconciliation statement must be issued on or before January 31 of each year reflecting the estimated and actual costs applicable for the preceding fiscal year. On January 30, 2009, the Respondent issued an annual reconciliation to the Petitioner that assigned 37,528 pre- disposition utilization days to the Petitioner and stated that the Petitioner was due a credit of $460,039.83. The Respondent issued an invoice reflecting the stated credit. On February 24, 2009, the Respondent issued a second annual reconciliation to the Petitioner that increased the Petitioner's assigned pre-disposition utilization days to 37,549 and decreased the credit to $455,579.28. The Respondent issued an invoice reflecting the revised credit. On March 18, 2009, the Petitioner directed a letter to the Respondent requesting that the two reconciliations be clarified. The Respondent did not respond to the request. On May 1, 2009, the Petitioner directed a letter to the Respondent disputing a portion of the assigned utilization days. The Respondent did not respond at that time, but on May 14, 2009, the Respondent issued a third annual reconciliation to the Petitioner that increased the Petitioner's assigned pre-disposition utilization days to 37,661 and decreased the credit to $431,789.64. On June 4, 2009, the Respondent issued a fourth annual reconciliation to the Petitioner that decreased the Petitioner's assigned pre-disposition utilization days to 34,163 and decreased the credit to $321,677.91. On July 17, 2009, the Respondent replied to the Petitioner's letter of May 1, 2009 (wherein the Petitioner disputed a portion of the assigned utilization days), by advising the Petitioner to file an administrative challenge to the allocation. On August 7, 2009, the Petitioner issued a letter to the Respondent objecting to the assigned pre-disposition utilization days, as well as the calculation of the per diem rate. The Respondent did not respond to the letter. Neither party offered evidence at the hearing related to the accuracy of allocated utilization days or the per diem rate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent issue a final order adopting the annual reconciliation dated January 30, 2009. DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of December, 2009. COPIES FURNISHED: Stephen M. Todd, Esquire Hillsborough County Attorney’s Office Post Office Box 1110 Tampa, Florida 33601 Brian Berkowitz, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2032 to Daniel Memorial, Inc. (Daniel), is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2032 on April 2, 2007. The RFP solicited proposals for a “20-slot day treatment program for youth placed on Probation, being released from a residential program, transitioning back into the community or classified as minimum risk, and a 100-slot service- oriented Intervention program with comprehensive case management services for youth which the programs are currently located in Pinellas and Pasco Counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $948,308, and prospective providers were required to propose a price at or below that amount EYA and Daniel submitted timely, responsive proposals in response to the RFP. Daniel’s proposal offered a slightly lower price than EYA’s proposal.1 On June 11, 2007, DJJ posted notice of its intent to award the contract to Daniel. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to Daniel. The RFP provides that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and Daniel, the prospective provider operated other DJJ-contracted non-residential programs in Florida. The proposals could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP provides that the proposal that receives the highest total points will be awarded the contract. Daniel’s proposal received a total of 600.13 points, which was the highest overall score. Daniel received 176 points for Attachment C, including 30 points for Part III. EYA’s proposal received a total of 573.46 points, which was the second highest overall score. EYA received 143.7 points for Attachment C, including zero points for Part III. EYA contends that Daniel should not have received any points for Part III, which would have resulted in Daniel’s overall score being 30 points lower, or 570.13, and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Council on Accreditation (COA). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by COA, but its non-residential juvenile justice programs are not accredited. EYA is currently seeking COA accreditation for the services provided in its non-residential programs based, in part, on DJJ’s scoring of Daniel’s proposal in this proceeding. Daniel listed three programs in its response to Part III: a behavioral management program in Circuit 4; a conditional release program in Circuits 6 and 13; and a behavioral management program in Circuit 7. The documentation provided by Daniel to show that the listed programs are accredited was a letter from COA dated August 18, 2006. The letter confirms that Daniel is accredited by COA; that the accreditation runs through September 30, 2010; and that the accreditation includes “the following programs:” Mental Health Services Psychosocial and Psychiatric Rehabilitation Services Employee Assistance Program (EAP) Services Case Management Services Foster and Kinship Care Services Supported Community Living Services Residential Treatment Services The letter does not on its face refer to the three programs listed by Daniel in its response to Part III. The letter does not on its face reflect whether the listed services were accredited in non-residential programs (as compared to residential programs) or in juvenile justice programs (as compared to adult programs or juvenile programs that do not involve the juvenile justice system). Each of the three programs listed by Daniel in its response to Part III is a non-residential program operated under contract with DJJ. Those programs were also listed by DJJ contract number in Daniel’s response to Part I of Attachment C. Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C, was familiar with the three programs listed in Daniel’s response to Part III. He knew from his experience and his review of Part I of Attachment C that the programs were non-residential juvenile justice programs and he knew that the programs provided case management services and mental health services. Mr. Hatcher acknowledged that the COA letter does not specifically mention the three listed programs. He nevertheless considered the letter to be sufficient documentation of accreditation for the three programs because the letter indicated that Daniel, as an organization, was accredited and that it had specific accreditation for the services provided at the three listed programs. COA accredits organizations and services, not specific programs.2 On this issue, Dr. Hilda Shirk, a member of the COA Board of Trustees and an experienced COA peer reviewer, testified that “COA accreditation applies to the entire organization and the services that it provides” and that Daniel’s accreditation includes all of its programs that fall under the service areas listed in the COA letter, which is consistent with Mr. Hatcher’s interpretation of the letter. COA does not separately accredit services provided in residential and non-residential settings, nor does it separately accredit services provided to adults or juveniles. The standards used to evaluate case management services and mental health services, for example, are the same notwithstanding the setting or the type of client being served. COA performed its on-site accreditation review of Daniel in April 2006. It is unlikely that two of the three programs listed by Daniel in response to Part III -- the conditional release program in Circuits 6 and 13 (DJJ Contract No. P2013 and the behavior management program in Circuit 7 (DJJ Contract No. G8101 -- were evaluated by COA as part of that review because those programs had just started. That does not mean, however, that those programs are not accredited. Indeed, Dr. Shirk testified that an organization is not required to submit each new program to COA for review if the services offered in the program fit within a service area for which the organization has been accredited.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order dismissing the EYA’s protest and awarding the contract for RFP No. P2032 to Daniel. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 14th day of December, 2007.
