Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
Findings Of Fact In August 1986, petitioner was employed as a Detention Care Worker I at the Manatee Regional Juvenile Detention Center. On August 6, 1986, petitioner received a copy of HRS Pamphlet 60-1, entitled "Employee Handbook." The HRS policy concerning absences is set forth in the handbook as follows: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. On May 4, 1987, petitioner received a written reprimand for an absence without authorized leave which occurred on April 9, 1987. Petitioner was reminded that he had to call his immediate supervisor for approved leave prior to the beginning of his shift. On May 4, 1987, petitioner also received an oral reprimand for his excessive absences. By May 28, 1987, petitioner had accumulated 41 hours of leave without pay that were due to absences from work that were not approved in advance. Ms. Clark, petitioner's Shift Supervisor, held a conference with petitioner to discuss the problems he was having. As a result of the discussion with petitioner, Ms. Clark decided to retroactively grant petitioner leave with pay, or annual leave, for all of the hours of absences for which he had annual leave available. After using all of petitioner's accumulated annual leave, petitioner still had eight hours of "short time," which was treated as leave without pay. On May 29, 1987, petitioner was advised by written memorandum from John Simpson, the Assistant Superintendent of the facility, that petitioner had to personally call his shift supervisor for any future leave requested. He was also advised that such request might not be approved and that he should be prepared to report to his assigned shift. On June 12, 1987, petitioner did not go to work. He did not request leave, but his wife called to say that he would not be at work. The Manatee Juvenile Detention Center is a secured facility. Detention care workers must be present at the facility at all times and work in shifts. Due to the nature of the work, it is vital that a detention care worker notify his supervisor in advance of any proposed absence so that arrangements can be made for a substitute to take his shift. Petitioner appeared for work as scheduled at 11:00 p.m. on June 18, 1987, and worked until 7:00 a.m., June 19, 1987. He was scheduled to work again at 11:00 p.m. on June 19, 1987. He did not call, and he did not report for work. He also was scheduled to work the night of June 20th. At about 6:00 p.m. on June 20, he stopped by the facility to say that his wife was having a baby. He did not report to work that night. On June 21, petitioner called Ms. Clark at home at about 9:50 p.m. He said that he was at the hospital with his wife and baby. He indicated that his wife and baby were fine, although the baby was about five weeks premature. Petitioner testified that he asked Ms. Clark for five days off and that Ms. Clark agreed. Ms. Clark testified that petitioner asked that he be given leave for the night of June 21. Since petitioner did not have annual leave accumulated, the leave had to be without pay. A shift supervisor is not authorized to grant over one day of leave without pay. Ms. Clark was a credible witness, she clearly recalled the conversation she had with the petitioner, and her testimony is accepted. It is therefore found that petitioner was granted leave for the shift beginning at 11:00 p.m. on June 21 and ending at 7:00 a.m. on June 22, 1987. No additional leave was authorized. Petitioner was scheduled to work the shift beginning at 11:00 p.m. on June 22, 1987. He did not appear for work and did not call. Petitioner was not scheduled to work the nights of June 23 or June 24, 1987. On Thursday, June 25, 1987, petitioner was scheduled to work the 11:00 p.m. shift. He did not call and did not report to work. On Friday night, June 26, 1987, petitioner was scheduled to work. He did not call and did not report to work. On June 27, at about 5:30 p.m., petitioner called Ms. Clark to inform her that he was returning to work. Ms. Clark told petitioner that he needed to talk to Mr. Simpson. Mr. Simpson went to the facility to meet with petitioner. Petitioner did not report to work. On June 28, 1987, petitioner went to work. He was told that he had to see Mr. Simpson. Mr. Simpson gave petitioner the termination letter which advised petitioner that he had been absent from work on June 22, 25 and 26, 1987, without authorization, and that he was deemed to have resigned from his position as Detention Care Worker I effective 7:00 a.m. on June 27, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services and finding that Calvin Sloan abandoned his position as Detention Care Worker I and resigned from the Career Service. DONE AND ENTERED this 18th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. COPIES FURNISHED: Mr. Calvin Sloan 1207-25th Street East Palmetto, Florida 33561 Frederick Wilk, Esquire Department of Health and Rehabilitative Services District VI 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact At all times here relevant Shirley R. Bennett was employed by DHRS as a Detention Care Worker I. In August 1982 Bennett was injured at work while breaking up a fight between two inmates at the Detention Center. She was placed on workers' compensation and remained off duty until the doctor treating her said she was able to return to work. Petitioner remained away from her work station and called in to say she was too sick to come to work. On October 10, 1984, Jerry McDonald, Assistant Detention Superintendent, called Bennett and told her that for sick leave to be granted she had to bring in a certificate from a doctor. Bennett indicated she would do so. On October 11, 1984, McDona1d again called Bennett and repeated his message about her needing a doctor's certificate for sick leave to be granted. On October 16, 1984, McDonald again called Bennett about needing a doctor's certificate for sick leave to be granted and that if she remained on unauthorized absence for three consecutive days she would be terminated for having abandoned her position. At this time Bennett said she was too sick to come in. McDonald told her to mail in the doctor's certificate. No such certificate was ever received by the Respondent. October 16, 1984, was a workday for Petitioner and she was scheduled to be off duty on the 17th but to work October 19 through 22, inclusive. Petitioner failed to report for work on any of those days and never presented a doctor's certificate saying she was unable to work because of illness. By letter dated October 24, 1984, sent to Petitioner by certified mail, Petitioner was notified by Respondent that her resignation by reason of abandonment was being processed and of her right to petition for review within 20 days. Petitioner's request for review dated November 7, 1984, was timely filed.
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 is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character 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 correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
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 7th day of June, 2012, 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 7th day of June, 2012.
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
