The Issue Whether Invitation to Negotiate No. 12/13-010, issued by Respondent for the operation and management of Bay Correctional Facility, Graceville Correctional Facility, and Moore Haven Correctional Facility, is contrary to Respondent's governing statutes, rules, or policies.
Findings Of Fact Parties/Interested Persons Petitioner, CCA, is a private corporation specializing in the design, construction, expansion, and management of correctional facilities. CCA currently operates 61 facilities for the United States federal government and state governments. Respondent, DMS, is authorized to contract for private correctional services under specified circumstances. As a prerequisite to entering into a contract for private correctional services, DMS must find the contract will result in a 7% cost savings to the State over public operation of a substantially similar facility. DOC, a non-party, currently operates 48 public correctional facilities and contracts with private vendors for operation of seven private correctional facilities. With respect to privatized facilities, DOC has the duty and responsibility to calculate the cost per inmate per day (per diem rate) for public operation of a substantially similar correctional facility. The per diem rate must be based on the costs of operating a correctional facility of a similar size, type, and location as the facility sought to be privatized. Brief Background Per Diem Workgroup The Florida Legislature first authorized private correctional facility operation in 1993, adopting the Correctional Privatization Act, chapter 957, Florida Statutes (the Act). As adopted, the Act included a cost-savings requirement: the State must find that private operation of a correctional facility would result in a savings of at least 7% over public provision of a similar facility. In 2001, the Legislature created the Prison Per-Diem Work Group, composed of the staffs of the Auditor General, Office of Program Policy Analysis and Government Accountability (OPPAGA), and the Appropriations Committee of the Florida Senate and of the House of Representatives (the Work Group). The Legislature directed the Work Group to convene, beginning in 2002 and each year thereafter, for the purpose of developing consensus per diem rates for privately operated facilities. See ch. 01-379, § 2, Laws of Fla. In 2002, the Work Group published a Report of Consensus Per Diem Rates (the Report). The Report included a set of Overall Per Diem Rates for each of the three main population types (adult male, youthful offender, and female), as well as Alternative Per Diem Rates and Program Per Diem Rates. The Overall Per Diem Rates represent an average daily operating cost of all publicly operated facilities. The Alternative Per Diem Rates exclude the costs of operating specialty facilities such as death row and work release, which are not operated by private vendors. The Program Per Diem Rates represent the average cost to provide educational and substance abuse programs to inmates within each of the three population groups. By way of example, the 2002 Work Group developed an Overall Per Diem Rate of $50.53 to operate an adult male correctional facility. The 2002 Work Group explained that the Alternative Per Diem Rates provided examples of adjustments that could be made to the Overall Per Diem Rates to facilitate a more direct comparison between public and private correctional facility costs. The Work Group made a location adjustment to remove the cost associated with a Competitive Area Differential paid to correctional officers in South Florida. Further, the Work Group made a series of size adjustments to reflect the extent to which public facilities of similar size to private facilities are above the location-adjusted average operating per diem. By way of example, the 2002 Work Group calculated an Alternative Per Diem Rate of $44.93 for operation of an adult male correctional facility, a location-adjusted rate of $44.83, and size-adjusted rates of $47.71 on the low end, to $57.60 on the high end. The 2002 Work Group did not adjust the calculated consensus per diem rates to account for cost differentials in private correctional facility operation such as credits for property tax payments, corporate income and sales tax payments, and payments to a maintenance reserve fund. The Report notes that such adjustments were outside the scope of the Work Group’s responsibility, which was limited to identifying public facility operation costs. In 2005, the Work Group convened again and developed consensus per diem rates utilizing the same methodology as used in 2002. The Work Group developed the following Per Diem Rates for operation of an adult male facility: an Overall Per Diem Rate of $51.90; an Alternative Per Diem Rate of $44.84; and Size-Adjusted Per Diem Rates of $51.26 on the low end, to $52.66 on the high end. The 2005 Report on Operating Per Diem Rates does not mention further adjustment of the Adjusted Per Diem Rates to account for cost differentials in private facility operations such as credits for property tax payments, corporate income and sales tax payments, and payments to a maintenance reserve fund. However, the Report does include a note that public correctional facilities realize economies of scale by operating above their design capacity, an advantage that private facilities cannot obtain. Private facilities are limited, by both contract and the standards of the American Correctional Association, to operation at no greater than their design capacity. The 2005 Report notes that the Work Group had not attempted to estimate the impact of economies of scale unavailable to private facilities. In 2006, the Legislature removed the requirement that the Work Group convene on a yearly basis and replaced it with convention upon the call of the Speaker of the House of Representatives and the President of the Senate. See ch. 06-32, § 4, Laws of Fla. 2010 Procurement In 2010, DMS rebid the contracts for Moore Haven and Graceville, which were previously operated by GEO Group, as well as the contract for Bay Correctional Facility, which was operated by CCA. CCA was awarded the contract to operate all three facilities. To prepare the 2010 ITN, DOC first selected public correctional facilities similar in size, type, and location to the private facilities which were the subject of the ITN. DOC selected the New River Correctional Institution as similar to Bay and Moore Haven, and Wakulla Correctional Institution as similar to Graceville. DOC separated the programming costs of those facilities from the security and indirect costs, arriving at the base per diem operating costs for the two comparable facilities. Next, DOC added in the costs for educational, health, and other programs based on the level of service required by the contract in the ITN. CCA Deputy Chief Development Officer Lucibeth Mayberry testified that she did not recall whether CCA was aware of the methodology used to calculate the per diem rates for the 2010 ITN. She explained that the per diem rates are the bottom line of any competitive correctional facility procurement, and the 2010 rates allowed CCA to put in a competitive bid. No direct evidence was introduced as to the advertised per diem rates included in the 2010 ITN. However, Ms. Mayberry testified that the current per diem rates by contract for Bay and Moore Haven are around $48.00, while that for Graceville is around $34.00. Post-2010 Cost Reductions Since 2010, DOC has significantly reduced its cost to operate Florida’s public correctional facilities. According to an April 2013 report by OPPAGA, in Fiscal Year (FY) 2011-2012, per diem rates for operation of adult male correctional facilities housing inmates similar to the private facilities decreased an average of over 8% from the prior year. The average per diem rate for operation of an adult male public correctional facility for FY 2011-2012 was $42.00. The DOC operating cost reductions are the result of the closure of several public facilities, including three adult male non-specialty facilities; consolidation of inmates from closed facilities; and workforce eliminations and reductions. OPAGGA concludes that the primary cause of the decrease in per diem rates was the reduction in the amount contributed by the State to employee retirement. OPAGGA estimates that the statewide requirement for employee to contribute 3% to their retirement, together with the State decrease to special risk retirement, resulted in a savings of $88 million to DOC. DOC has also reduced costs at public correctional facilities by changing its operations. The State maintains an 8% vacancy rate in correctional officer positions, allowing wardens flexibility to staff security posts according to highest priority on a daily basis, while leaving lower priority posts vacant. In FY 2011-2012, DOC began working its housing officers on 12-hour shifts, which allowed for further reduction in security costs. By consolidating inmates from closed facilities with those in operational facilities, DOC has realized an economy of scale in some facilities where more inmates are housed without increasing security costs. The 2010 contracts for operation of Bay, Moore Haven, and Graceville correctional facilities expire in 2013. In January 2013, DMS released the per diem rates for operation of similar facilities to be included in the ITN at issue. The published rates are 17% lower than the rates CCA is paid under the current contract to operate those facilities. Hence, the present controversy. The 2012 Per Diem Development Process Michael Weber, DMS Bureau Chief of Private Prison Monitoring, contacted DOC Deputy Secretary Michael Crews on September 21, 2012, to obtain “key information” from DOC to prepare a document with which to solicit vendors for private correctional facility services at Bay, Moore Haven and Graceville correctional institutions. Key information includes the type of inmate (i.e., male, female, or youth), the custody level (i.e., close, medium, minimum, or community), inmate programs to be offered (e.g., re-entry and education, substance abuse), and the medical profiles of inmates to be housed at each of the three facilities. On October 3, 2012, DOC Director of Institutions James Upchurch responded to DMS with a chart showing inmate type, custody, medical profiles, and programmatic profiles for each of the three facilities operating under the current contracts. DOC later notified DMS of adjustments in both custody and programmatic services for the Bay and Moore Haven facilities during the next contract period. Eventually, DOC decided against changing custody type of inmates housed at those facilities. On October 9, 2012, DOC clarified the need to include within the ITN program services for up to 18% psychological grade three (S3) inmates at Bay and Moore Haven. No changes were made to correctional services provided at the Graceville facility under the current contract. On October 10, 2012, DMS issued the ITN. As issued, responses to the ITN were due November 13, 2012, at 11:00 a.m., Eastern Standard Time. The ITN includes the proposed contract and requires that proposals must be 7% less than the DOC-calculated per diem rate to be considered responsive. However, the ITN as issued did not contain the per diem rate for facilities substantially similar to Moore Haven, Bay, and Graceville. On October 22, 2012, DOC Secretary Kenneth Tucker sent a letter to the Auditor General requesting an audit and certification of an attached set of spreadsheets calculating the per diem rates for public provision of correctional services at facilities comparable to Bay, Moore Haven, and Graceville. The per diem rate for each facility was formulated by DOC in three steps: First, DOC selected a comparable facility; broke out the operating costs by security, administration, and programmatic services; and deducted costs for programmatic services (education, substance abuse, and health services) at the comparable facility. This calculation yielded a per diem rate for the comparable facility based solely on security costs and indirect, or administrative, costs. This rate is referred to as the “above-the-line” number for purposes of interpreting the spreadsheets for each of the three facilities. The above-the-line per diem rate for each facility, as submitted to the Auditor General, was as follows: Bay and Moore Haven -- $41.76; Graceville -- $36.62. Second, DOC multiplied the operations per diem for the comparable facility by the contracted population number for each facility. This calculation yielded operational costs for each of the three contracted facilities. DOC then added to that figure the costs associated with providing the programmatic services requested for the inmate population at each of the three facilities based on the proposed contract. This step yielded the unadjusted operational costs for each facility. Third, DOC adjusted the total cost to account for cost savings realized by DOC through its policy of 12-hour shifts (which private providers cannot match), and deducted costs associated with work camps and work squads at the comparable facilities (private corrections providers do not operate work camps). The total costs to operate were adjusted to provide a per diem rate for operation at a private correctional facility that is comparable to operation at a public correctional facility. This step yielded the total adjusted operational cost for each facility. The total adjusted cost was divided by the contract population for each facility to arrive at the adjusted per diem rate for each of the three facilities, as follows: Bay -- $43.22; Moore Haven -- $42.38; Graceville -- $40.51. For each facility, the adjusted per diem rate was slightly higher than the “above-the-line” per diem rate. On October 26, 2012, DMS published on the State VBS a copy of the October 22, 2012, DOC letter to the Auditor General requesting certification of the per diem rates. CCA staff testified they were shocked by the low per diem rates that DOC requested the Auditor General to certify. The published per diem for Bay and Moore Haven was 17% lower than the per diem certified by the Auditor General for the 2010 procurement in which CCA was awarded the current contract. On October 31, 2012, Ms. Mayberry sent a letter to DMS outlining concerns with the proposed per diem rates in the DOC October 22, 2012, letter to the Auditor General. On November 1, 2012, Petitioner’s competitor, GEO Group, sent a letter to DMS raising similar concerns. By letter dated January 24, 2013, the Auditor General’s office notified the Speaker of the House of Representatives and the President of the Senate of its completion of the audit of the DOC per diem rate calculations. In the intervening period, DMS issued 10 Amendments to the ITN, the majority of which extended the deadline for Responses from the original deadline of November 13, 2012. The Auditor General’s letter reads in pertinent part: The Auditor General performed selected procedures to evaluate the 2011-12 fiscal year operating costs provided by the Department for the State-operated Holmes and Okeechobee Correctional Institutions that were identified by the Department as substantially similar to the privately- operated facilities. Operating per diems are primarily a function of costs and inmate population. * * * Based on the procedures performed, we concluded, pursuant to Section 957.07(1), Florida Statutes, that the 2011-12 fiscal year Holmes Correctional Institution operating per diem of $41.76 provided by the Department was reasonably consistent with the State’s accounting and budgeting records . . . . The Holmes Correctional Institution operating per diem of $41.76 is an appropriate amount to which necessary adjustment may be made for variations in Bay Correctional Facility and Moore Haven Correctional Facility operations. The letter proceeds with the same findings regarding the FY 2011-2012 operating per diem of $36.62 for Okeechobee Correctional Institution as “reasonably consistent with the State’s accounting and budgeting records” and “an appropriate amount to which necessary adjustment may be made for variations in the Graceville Correctional Facility operations.” As such, the Auditor General’s process evaluated only the “above-the-line” per diem rates in each of the DOC spreadsheets and certified those amounts as the starting point for an adjusted per diem rate for each of the contract facilities. On January 24, 2013, DMS posted the Auditor General’s letter as Amendment 11 to the ITN, as well as a spreadsheet for each of the three contract facilities titled “Public Per Diem with Adjustments.” There are two substantive differences between this publication and the October 22, 2012, spreadsheets provided to the Auditor General by DOC. First, the health care per diem rate was adjusted for both Bay and Moore Haven to account for increased health care costs to house up to 18% S3 inmates at those two facilities. Second, that change increased the adjusted per diem rates for the two facilities. As published on January 24, 2013, adjusted per diem rates for the contract facilities were as follows: Bay -- $43.76; Moore Haven -- $42.91; Graceville -- $41.05. Notably, DMS published at the bottom of the spreadsheet for the Bay Correctional Institution, “Respondents must submit a per diem bid for the Bay Correctional Facility that is no greater than $40.69 to be considered responsive.” The spreadsheets for Moore Haven and Graceville contain the same language specifically incorporating the adjusted per diem rate as a term of the ITN and require bids be 7% below the adjusted per diem rate to be considered responsive. On Monday, January 28, 2013, at approximately 5:30 p.m., DMS again posted Amendment 11 and noted as follows: On January 24, 2013, the Department posted on the VBS two changes regarding the above- mentioned competitive solicitation. However, Amendment 11 was not completely posted. As such, the Department hereby posts Amendment 11 in its entirety.[1/] Petitioner filed a notice of intent to protest the specifications of the ITN on January 30, 2013, and filed its Formal Bid Protest Petition on January 31, 2013. Petition and Issues CCA challenges the ITN on both procedural and substantive grounds. Procedurally, CCA alleges DMS is authorized to procure contracts for the operation of private correctional facilities only by Request for Proposal (RFP) pursuant to section 957.07, Florida Statutes. Procedural Challenge/Waiver DMS maintains CCA is precluded from challenging DMS’ choice to procure the private correctional institutional contracts by ITN rather than RFP. The ITN was issued on October 10, 2012, and no intent to protest was filed within 72 hours. DMS argues that the issue of method of procurement has been waived. DMS is correct, as more fully explained in the Conclusions of Law. In order to challenge DMS’ choice to procure private correctional facility operation through ITN rather than RFP, CCA should have filed a notice of intent to protest within 72 hours of DMS posting the ITN on October 10, 2012. Since CCA did not file a notice of intent to protest until January 28, 2013, that issue has been waived. DMS also alleges that CCA waived many of the issues contained in its Petition because CCA did not file notice of intent to protest particular specifications of the ITN within 72 hours of DMS posting the amendments which incorporated those specifications. DMS maintains that CCA is limited in its challenge to whether the per diem rate published on January 28, 2013, accurately accounts for the cost of housing S3 inmates at Bay and Moore Haven. DMS reasons that the only change between the per diem amount published on October 26, 2012, and that published on January 28, 2013, is the small adjustment made to account for S3 inmates and, therefore, it is the only issue timely raised by CCA. DMS’ position on this issue is not supported by the facts. The DOC letter to the Auditor General was not posted as an Amendment to the ITN; did not contain a notice of rights, pursuant to chapter 120.57(3), Florida Statutes; and was not incorporated into the ITN as a term thereof. Neither the above- the-line nor the below-the-line per diem rates had been reviewed or certified by the Auditor General on October 26, 2013, and the certification process was not complete. In fact, the certification process was not completed until January 24, 2013, some 90 days later. DMS represents that CCA’s corporate representative admitted at hearing that CCA could have filed a bid specification protest on October 26, 2012, in response to DMS posting the letter to the Auditor General. However, the testimony of Ms. Mayberry does not bear that out: Q: Was that a discussion that was had internally with regard to different options and vendor relationships about how that might change with filing a protest as opposed to sending a letter? A: At that time, I don’t believe we had -– we knew a protest was possible in Florida and we had filed an intent to protest before which we had withdrawn. But at that time –- we didn’t have a certified per diem. We thought this was going to be fixed. We thought that when we raised concerns, that would be addressed. So I am giving you information because I don’t honestly remember exactly –- I don’t think a protest –- a protest seemed premature to us at that point because we didn’t have certified per diems, as that wasn’t –- we didn’t have the real per diem at that point. We just had the letter from DOC, which we felt certain was going to be adjusted.[2/] Ms. Mayberry did not admit that CCA had a point of entry to challenge the per diem rates in the October 22, 2012, letter; instead she insisted that the rates were not final and a challenge would have been premature. Even if Ms. Mayberry had admitted that CCA could have challenged the posting on October 26, 2012, her opinion would not have been binding on the undersigned because it would have been a legal conclusion. Substantive Challenge Next, CCA challenges the per diem rates included in the ITN through Amendment 11 on the following bases: The per diem rates are not based on the costs associated with comparable publicly operated correctional facilities. CCA maintains DOC acted arbitrarily in selecting the comparable facilities. DOC erred in adjusting the base per diem rate to account for costs associated with programmatic services to be provided under the contract in the ITN. CCA maintains that some adjustments were too high, while others were too low. DOC erred by not including adjustments to the base per diem rate to account for savings realized by operational changes at public institutions which cannot be made by a private vendor. Finally, CCA argues that the overall accounting methodology utilized by DOC is flawed. In summary, CCA argues that the per diem rates for all three facilities are too low because DOC did not correctly choose substantially similar facilities as the bases for public per diem rates, and DOC did not accurately adjust the base per diem rates to fairly account for differences in public and private correctional facility operations. The Contract Facilities CCA challenges DOC’s selection of the Holmes Correctional Institution for comparison to Bay and Moore Haven because Holmes is not “substantially similar” as required by the governing statute. Likewise, CCA challenges the selection of Okeechobee Correctional Institution for comparison to Graceville because it is not “substantially similar.” Under the governing statute, DOC is charged with selecting a public correctional institution which is similar in “size, type, and location” to the facilities sought to be managed by a private correctional institution. Size equates with inmate population of a correctional facility. Both Bay and Moore Haven have a design capacity of 985 inmates. Graceville is a larger facility designed to house 1513 inmates. All three facilities are under contract to operate at design capacity. There are three types of general correctional facilities: adult male, youthful offender, and female. There are also a number of specialty type institutions in the correctional system, such as reception and medical centers, maximum security, death row, and mental health. Adult male facilities may house inmates at different custody levels (close, medium, minimum, and community) and with different health profiles (medical grades 1, 2, and 3; psychological grades 1, 2, and 3; wheelchair; and special needs). Inmates from different custody levels and health profiles may be housed together without changing the primary mission of the facility to a specialty institution. Bay, Moore Haven, and Graceville are all adult male facilities, contracted for similar custody levels. Under the ITN, Bay and Moore Haven may accept inmates of medium, minimum, and community custody levels. Both are currently serving 100% medium custody inmates. Graceville is designated to accept close, medium, minimum, and community custody inmates and currently serves 40% close custody inmates. The three facilities are also designated to accept inmates with similar health profiles. Under the ITN, Bay and Moore Haven will accept 84% medical grades 1 and 2, 16% medical grade 3, 82% psychological grades 1 and 2, 18% psychological grade 3, 2% wheelchair, and 6% special needs inmates. Graceville is designated to accept the same percentages of psychological grade inmates and wheelchair inmates, but may accept up to 5% special needs inmates and a small percentage of medical grade 4 inmates. Location refers to the geographic location of a facility. DOC divides correctional facilities regionally. Both Bay (Bay County) and Graceville (Jackson County) are in Region 1. Moore Haven (Glades County) is located in Region 3. For purposes of comparing correctional facility costs, location is significant when a facility is located in South Florida, where employees are paid a competitive area differential. Location is also a factor when an institution is remote from population centers, which may affect staffing and turnover rates. Substantially similar facilities James Upchurch, DOC Assistant Secretary for Institutions and Reentry, selected the public correctional facilities “substantially similar” to the three contract facilities for purposes of calculating the base per diem. Mr. Upchurch came to Florida as Chief of Security Operations for DOC in 1996 following 26 years in operation of public correctional facilities in Mississippi and Arizona. He served as a warden in three different Arizona correctional facilities, including a super max facility, and was a regional director for the State of Arizona as well. Mr. Upchurch was DOC Chief of Security Operations from 1996 until 2011, when, after a brief stint as warden at Franklin County Correctional Institution, he became DOC Director of Operations. In March 2012, Mr. Upchurch was promoted to Assistant Secretary of Institutions and Reentry and now supervises region directors, the deputy assistant secretary for institutions, and the deputy assistant secretary for reentry. Altogether, Mr. Upchurch has 17 years of experience in Florida’s correctional facility operations. After excluding the DOC specialty institutions, Mr. Upchurch identified two institutions similar to Bay and Moore Haven and two institutions similar to Graceville for further review. He asked Vicki Newsome, DOC Assistant Bureau Chief for Population Management and Classifications Services, to pull the facility profiles for comparison. Bay and Moore Haven In his initial analysis, Mr. Upchurch chose Holmes Correctional Facility and Lawtey Correctional Facility as comparable to Bay and Moore Haven and reviewed their facility profiles. Holmes, Bay, and Moore Haven are all located in Region 1 and house adult male inmates. Lawtey does not house S3 inmates and Holmes only houses one S3 inmate. Both Bay and Moore Haven will house up to 18% S3 inmates under the ITN. According to the data reviewed by Mr. Upchurch, Holmes houses 37% close custody inmates, while Lawtey houses no close custody inmates. Neither Bay nor Moore Haven is contracted to house close custody inmates. Holmes is not a stand-alone facility, but rather includes a work camp which is physically separated from the perimeter of the main facility. Lawtey is a stand-alone facility, as are Bay and Moore Haven. Bay and Moore Haven have similar layouts –- four large dorms housing between 250 and 400 inmates each, and one much smaller dorm housing a small number of segregated inmates. By comparison, Lawtey’s inmate population is spread among 10 dorms, one housing 200 inmates and the remainder housing roughly 80 inmates each. Much like Bay and Moore Haven, Holmes houses its population in a series of larger dorms, one housing 250 inmates, seven housing just under 150 inmates each, and one much smaller dorm housing around 60 segregated inmates. Lawtey is a faith- and character-based institution. Bay, Moore Haven, and Holmes are not faith- or character-based. For the 2010 procurement, DOC had chosen the New River facility as comparable, but that facility has since closed. Holmes and New River are 2 of 15 state correctional institutions built on a prototypical layout –- administration and support at the front of the compound, recreation wellness yard in the back, housing units in the middle, and a separate work camp on the grounds but physically separated from the perimeter of the main compound. In the final analysis, Mr. Upchurch selected Holmes as the facility most comparable to Bay and Moore Haven. He based this selection, in large part, on the fact that Holmes was so similar to the New River facility selected for the prior procurement. Mr. Upchurch ruled out Lawtey in his final analysis because it is a faith- and character-based institution, which he testified increases security costs. Further, the layout and dorm capacities of Lawtey are not as efficient as the larger dorms at Bay and Moore Haven. Mr. Upchurch did not verify that Lawtey actually had higher security per diems because it was faith-based. In fact, he explained that the only way to verify that mathematically would be to remove the faith- and character- based mission and compare the resultant costs with the prior costs. Identifying a public correctional institution substantially similar to Bay and Moore Haven is indeed a difficult task. At a contracted inmate population of 985 each, Bay and Moore Haven are significantly smaller than the average adult male public correctional facility. This was true in 2005 when the Per Diem Workgroup was convened to formulate a consensus per diem rate. This disparity in size has only increased in recent years as many public institutions have been closed and their populations consolidated. In FY 2011-2012, only 7 of the 30 public adult male facilities had an average daily population of fewer than 1,500 inmates. Both Lawtey and Holmes are among the seven. The populations of Lawtey and Holmes differ significantly, however. Holmes averaged 1,466 inmates per day in FY 2011-2012, while Lawtey averaged 805. The difference in population between Bay and Moore Haven and that of Lawtey is 185. The difference in population between Bay and Moore Haven and that of Holmes is 481. The evidence was uncontroverted that facility size is one of the most important variables in determining correctional facility costs. The larger the inmate population, the more security is needed. More security means more salaries and benefits. Mr. Upchurch selected Holmes as comparable to Bay and Moore Haven based on its similarity to New River, one of the same prototypes as Holmes, and the similar inmate housing patterns, which were known to him to require similar staffing patterns. Although Holmes has a work camp, which Bay and Moore Haven do not, Mr. Upchurch expected the security costs associated with the work camp (separate perimeter patrol and additional security staffing) would be removed from the per diem rate. Furthermore, Mr. Upchurch considered the security staffing requirements of Lawtey based on his experience not just in Florida, but in his entire 43-year career in public correctional facility operation. Mr. Upchurch’s decision to select Holmes as substantially similar to Bay and Moore Haven was not made without thought or reason or in an illogical manner. Graceville For Graceville, Mr. Upchurch narrowed the decision down to Everglades and Okeechobee correctional institutions, both adult male facilities in Region 4. Everglades and Graceville are similar in population size and inmate profiles. Both facilities house over 1500 inmates. Both house large percentages of close custody inmates (Everglades –- 54%; Graceville –- 42%), and both house S3 inmates, although at different percentages. Mr. Upchurch eliminated Everglades for two reasons. First, based on its location, the facility has experienced high staffing turnover, which has increased hiring and training costs. Second, Everglades has a higher percentage of S3 inmates (24%) than contracted for at Graceville (18%).3/ The evidence was uncontroverted that S3 inmates increase per diem rates because of the cost of psychotropic drugs administered to those inmates. Mr. Upchurch also testified that the presence of S3 inmates can increase security costs. S3 inmates have more disciplinary problems, are more spontaneous, and are more difficult to manage. Mr. Upchurch testified that when a large number of S3 inmates are housed together, they “feed off one another” and create more disturbance. When asked specifically what percentage of S3 inmates would create an increased security cost, Mr. Upchurch estimated around one-third of the population. The number of S3 inmates housed at Everglades does not rise to that level. Mr. Upchurch selected Okeechobee as the facility most substantially similar to Graceville for comparison. The facilities have similar inmate populations –- both house over 1500 inmates with high percentages of medical grades 1 and 2 inmates, similar numbers of special needs inmates, and no wheelchair inmates. However, as emphasized by CCA, Okeechobee serves no S3 inmates. Mr. Upchurch focused on the design efficiencies of the two facilities. Both Okeechobee and Graceville house a large number of inmates in a small number of dorms. The six “T building” dorms at Okeechobee house up to 230 inmates each. The four main dorms at Graceville house approximately 400 inmates each. This design is intentional and creates efficiencies in the officer-to-inmate ratio. Many of the other DOC facilities have multiple smaller “open bay” dorms with less efficient operation.4/ More inmates in fewer dorms equates with lower security costs. Mr. Upchurch also noted that both Okeechobee and Graceville are stand-alone facilities, meaning only one correctional facility is contained within the perimeter.5/ Upchurch testified that, where possible, it is preferable to compare the per diem rates of stand-alone facilities. Mr. Upchurch disagreed with DOC’s selection of the Wakulla Correctional Facility as comparable to Graceville for the 2010 procurement process. The Wakulla facility is actually three different institutions within one: Wakulla Correctional, Wakulla Annex, and Wakulla Work Camp.6/ The facility operates three separate perimeter security details, three separate control rooms, and three sets of security supervisors. Mr. Upchurch testified that he objected to the selection of Wakulla because no adjustment was made to the Wakulla security per diem rate in 2010 to account for the higher security per diem at Wakulla. Thus, he disagreed that Wakulla was comparable. CCA assigns error to Mr. Upchurch’s choice of Okeechobee over Everglades as comparable to Graceville. CCA highlights that Okeechobee houses no S3 inmates, and, therefore, does not incur costs associated with psychotropic drugs for those inmates. Further, CCA notes that between the two comparable facilities, Mr. Upchurch chose the one with the lower total per diem rate -- $33.23 at Okeechobee versus $45.82 at Everglades. The higher per diem rate at Everglades is a factor in both a higher security per diem and a higher health per diem than at Okeechobee. Everglades’ security per diem is $28.00 while Okeechobee’s is $23.99. Higher recruiting and training costs due to turnover likely account for that difference. The health per diem at Everglades is also higher -- $17.14 compared with $8.64 at Okeechobee. The treatment of 24% S3 inmates likely accounts for this higher rate. Mr. Upchurch was aware that the contract with Graceville required the facility to house up to 18% S3 inmates. He did not ignore that requirement in selecting Okeechobee over Everglades. Mr. Upchurch was aware of the process of adjusting the per diem rate of the selected comparable facility to account for the specific programs under the contract. The cost of housing S3 inmates at Graceville was accounted for in the adjustment process. Mr. Upchurch selected Okeechobee as substantially similar to Graceville based upon his significant knowledge regarding the operations of all the DOC facilities. The choice was informed by the size, type, and location of the facilities, as well as the physical layout, size of dorms, efficiencies of staffing, and similarity of inmate profiles. For FY 2011-2012, DOC operated 30 adult male facilities. Of those, 18 had an average daily inmate population of 1500 or higher, as does Graceville. Both Graceville and Okeechobee are stand-alone facilities housing large numbers of inmates in few dorms, which increases staffing efficiencies. Overall, the undersigned does not find that Mr. Upchurch’s choice of Okeechobee was arbitrary, capricious, or erroneous. CCA further assigns error to DOC’s selection of substantially similar facilities because DOC did not undertake a formal process or analytical exercise to select those facilities. It is true that Mr. Upchurch did not review documentation on all 48 DOC correctional facilities, or otherwise consult DOC records, prior to narrowing the choices to two facilities similar to Bay and Moore Haven and two facilities similar to Graceville. Mr. Upchurch relied upon his 17 years of experience in state correctional facility operations, including his knowledge of the facilities’ design, layout, staffing and programming. Once he narrowed the choices, he requested and reviewed the inmate profiles for comparable facilities to the private facilities. As such, his selections were not arbitrary or capricious. Errors Calculating Program Costs Having identified Holmes as substantially similar to Bay and Moore Haven, and Okeechobee as substantially similar to Graceville, DOC began with each facility’s base security per diem plus administrative costs, and multiplied that figure by the contracted population for each of the contracted facilities. To that base operational cost figure, DOC added costs for health services, educational, substance abuse, and behavioral/transition services based on the draft contract in the ITN. DOC program staff specializing in each area calculated the cost to provide the contracted services. Errors were made in those calculations which were admitted to at the final hearing. The health services per diem of $7.82 added to the Bay security per diem was in error. The correct rate is $8.28. As such, the per diem rate published in Amendment 11 for Bay was incorrect. The health services per diem for Graceville was calculated incorrectly as $12.46 rather than $12.56. As such, the per diem rate published in Amendment 11 for Graceville was incorrect. Next, DOC calculated the mental health programmatic costs associated with housing S3 inmates at Bay and Moore Haven as required by the ITN. CCA alleges DOC made an error in calculating that amount because it relied upon FY 2011-2012 pharmacy expenditure data to determine the amount spent on psychotropic drugs, rather than relying on the data from the state accounting system known as FLAIR. Mark Tallent, DOC Director of Budget and Finance, testified that the pharmacy data is a more accurate accounting of the actual amount DOC spent on psychotropic drugs than the FLAIR data. The state accounting system appropriated approximately $11 million for psychotropic drugs and the FLAIR data shows DOC spent over $6 million out of that category. However, Mr. Tallent testified that DOC paid bills for other types of drugs, such as infectious disease drugs, out of that category, so the number is inflated and unreliable as it relates to psychotropic drugs exclusively. He testified that the pharmacy system is more accurate because it correlates each individual prescription with an inmate at a particular facility, allowing for an accurate accounting of the institutional costs for each specific type of drug. Mr. Tallent’s testimony is accepted as credible and reliable. DOC did not err when it calculated the per diem cost of psychotropic drugs based on the figure of $5,045,018 from FY 2011-2012 pharmacy data. Errors in Additional Adjustments The governing statute requires DOC to “calculate all the cost components that determine the inmate per diem in correctional facilities of a substantially similar size, type, and location that are operated by the Department of Corrections, including administrative costs associated with central administration.” § 957.07(1), Fla. Stat. The statute also directs DOC to make some adjustments to account for the public nature of the operation. DOC must include in the per diem an equivalent cost of services that are provided to DOC by other governmental agencies at no direct cost to the agency. Id. Also, the statute requires DOC to include as a cost savings in the calculation of the per diem rate “reasonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as a private rather than public entity,” including corporate income and sales tax payments. § 957.07(2), Fla. Stat. DOC made a number of additional adjustments to account for operations unique to public correctional facilities to arrive at a per diem rate more comparable to that of a private facility. While all these adjustments are not required by statute, they are examined for their accuracy. 12-hour shifts DOC adjusted the per diem to account for the cost savings realized at Holmes and Okeechobee by operating housing security personnel on 12-hour shifts. In calculating the 12-hour shift adjustment, DOC failed to add back in the cost of providing security staff at the private facilities associated with covering the 4 hours essentially unmanned when the cost of the 12-hour shifts were removed. In other words, DOC deducted too much cost when making this adjustment. As such, the per diems published in Amendment 11 for Bay, Moore Haven, and Graceville were incorrect. Work Squads DOC also adjusted the per diem by backing out the costs associated with the work squads at Holmes. A correctional facility work squad may perform services such as landscaping, maintenance, or other jobs both on the facility grounds and “outside the fence.” DOC removed the costs associated with work squads under the mistaken impression that none of the private facilities operate work squads. However, Bay and Moore Haven operate work squads in the community, which require supervisory security personnel. As such, the per diem amount published in Amendment 11 for Bay and Moore Haven was incorrect. Work Camps Holmes operates a work camp on its grounds, although it is physically separate from the main unit. The work camp requires both separate perimeter security and supervisory security. DOC adjusted the per diem rate for Bay and Moore Haven to exclude the security costs attributable to the work camp at Holmes. CCA argues that DOC erred by deducting only the security costs attributable to the Holmes work camp, but not other costs associated with the inmate population at the work camp, since private correctional facilities do not operate work camps. Mr. Tallent testified there is no way to back out the costs associated with the work camp at Holmes, other than the salaries and benefits of the security officers, because it is the same budget entity as Holmes Correctional Institution and the costs cannot be separated. No evidence was presented regarding the specific costs CCA expected to be removed, or the amount of those costs. Given the accounting structure of the DOC system, and the uncontested fact that security costs are the driving factor in calculation of correctional facility per diem rates, the undersigned does not find that DOC erred in removal of only the security costs at Holmes. Additional Alleged Errors CCA assigns error to DOC for failure to make additional adjustments to the per diem rates in the ITN. 1. Utility service charge Moore Haven pays a monthly utility service charge of $25,000, which is extraordinarily high. This service charge was not disclosed to CCA by the predecessor operator, GEO Group, and CCA did not take it into account in preparing its response to the 2010 ITN. No evidence was presented to establish that this utility surcharge is paid by the operator of Moore Haven because of its status as a private rather than public entity. If it were, DOC would be required by law to include it as a cost savings when calculating the per diem rate. Without that evidence, the undersigned cannot find that DOC erred by not adjusting the per diem to account for it. DOC has offered to make an adjustment in the per diem to account for this service charge. However, DOC’s offer to make an adjustment during negotiations does not prove an error on its part. 2. Lapse Factor/Vacancy Rate Next, CCA argues DOC erred by not adjusting the per diem rate to account for the DOC “lapse factor.” Contradictory evidence was introduced as to the meaning of “lapse factor” and the related term “vacancy rate.” Based on the preponderance of the evidence, the lapse factor is the percentage of DOC security positions which are temporarily vacant due to normal turnover, during which time recruitment and training of new officers occurs. Mr. Upchurch testified that DOC generally runs a 3% lapse factor. A vacancy rate, on the other hand, is the percentage of positions which remain intentionally unfilled due to a hiring freeze or other cost-saving measure. DOC operates with roughly an 8% vacancy rate as part of its budget cutbacks. For the purpose of the contract sought via the ITN, a vacant position is defined to occur “when the employee assigned to that position has resigned, been terminated, or is reassigned to another position.”7/ The terms of the draft contract do not allow the private correctional facility operator to run a blanket vacancy rate. In fact, the operator will incur a vacancy deduction for positions not filled with permanent employees or contracted staff within 30 days after a position becomes vacant, unless a waiver has been granted.8/ Petitioner argues that DMS erred in not adjusting the per diem rate to account for operation of the public correctional facilities with across-the-board vacancies. DMS testified, and has apparently agreed, that such an adjustment would be fair to account for vacancy rates above the normal 3% lapse factor. Moreover, Petitioner argues that the adjustment should be high enough to account for vacancies in actual posts at comparable institutions. Each warden at each public correctional facility has the flexibility to leave positions, or posts, unfilled on a given day based on the security priority of the post. DOC classifies posts into level 1, 2, and 3 priority positions. Level 1 posts are critical to daily operation of a shift. Level 2 posts are essential to the daily normal operation of a facility and allow all activities and programs to be marginally staffed. Level 3 posts are necessary for long term normal operations. In order to fill a level 1 post, a warden may move to a level 1 post an officer assigned to a level 2 or 3 post for that day; limit non-critical activities, such as recreation or work squads; or pay overtime to fill the level 1 post. Level 3 posts are generally utilized prior to level 2 posts to fill level 1 vacancies. Jinanne West, CCA Senior Director of Financial Planning and Analysis, analyzed the security post charts and daily rosters for the Holmes and Okeechobee facilities. She found that for FY 2011-2012, Holmes had an average security post non-fill rate of 17%, with level 3 posts vacant 73% of the time and level 2 posts vacant 39% of the time. During the same time period, Okeechobee ran an average non-fill rate of 26% with level 3 posts vacant 94% of the time and level 2 posts vacant 72% of the time. CCA’s argument, however, assumes private facilities are required to staff their facilities exactly as public facilities do. The draft contract included as part of the ITN does not bear out that assumption. With respect to security staffing, the contract provides, in pertinent part, as follows: Security Staff Utilization: CONTRACTOR shall develop and implement Security staff utilization in accordance with DC policy and procedure that includes, but is not limited to the following: A table of organization for the security staff for the maximum inmate population for the Facility and the position qualifications, job descriptions, pay levels, number of persons per post, distribution by shift, and security staff to inmate ratio in each housing unit by shift. 5.28.6.2 A detailed Security Post Chart outlining how key functions/duties will be staffed. 6.3 PERSONNEL. * * * CONTRACTOR will provide the Department with a finalized staffing pattern prior to the Service Commencement Date. Positions will be staffed with qualified employees in accordance with the staffing pattern attached hereto as in [Exhibit , to be provided by the CONTRACTOR]. CONTRACTOR’S staffing pattern must be submitted and approved by the Contract Manager prior to the Service Commencement Date. Any modifications to the position requirements or the staffing pattern must be approved in writing by the Contract Manager. * * * Sufficient certified security staff shall be employed at all times to assure that all positions identified as critical complement on the approved staffing pattern, are manned, at all times, for each shift, unless a departure from the staffing pattern has been approved in writing by the Contract Manager. . . . CONTRACTOR shall be required to fill critical complement positions by using overtime or other qualified staff members to ensure that staffing levels do not decrease below the established critical complement. (emphasis added) The private contractor is charged with developing the security staffing pattern for its facility, including the job descriptions, pay levels, number of persons per post, distribution by shift, and security staff to inmate ratio per housing unit. While the contract may penalize the private operator for vacant positions left unfilled after 30 days, no evidence was introduced from which the undersigned can infer that private operation lends itself to any higher than normal lapse rate. It is illogical to count as a cost to the private operator the savings realized by public sector cutbacks. The Legislature intends to ensure more efficient private operation by including the 7% cost-saving requirements. CCA also argued that DOC has an advantage because it maintains high vacancies in individual posts at the level 2 and 3 positions, which private operators cannot do without incurring a vacancy deduction penalty. Again, the contract does not bear that out. The vacancy deduction is tied to vacancies of positions due to resignation, termination, or reassignment. There is no evidence from which to conclude that private operators are separately penalized by running vacancies in individual posts at an institution. In fact, the contract specifically provides for flexible staffing of the private correctional facility similar to that of the public facility –- filling critical complement posts at all times, authorizing the movement of employees from other posts and the use of overtime if necessary.9/ 3. Reception and Medical Center Cost Next, CCA argues that the per diem rates published in Amendment 11 are artificially low and should be further adjusted to account for health care administered to inmates at public reception and medical centers (RMCs). RMCs are public correctional facilities which conduct initial health screening of inmates at intake and may provide medical care to existing inmates as well. Inmates at public institutions may receive health care at RMCs, but the state pays for that health care out of a budget separate from the institution’s budget. In other words, public correctional facilities may send an inmate to an RMC for care and not pay for that care out of the facility’s budget. CCA argues that since it will be charged with the cost to treat inmates at an RMC, the per diem rate should account for that difference as a savings to the public correctional facility. What CCA fails to include in the discussion is the fact that a private correctional facility operator is authorized to use the RMC as a cost-saving measure. Private correctional facilities are required to provide health care, including emergency care, to its inmates offsite only when the onsite Chief Health Officer determines an inmate cannot be treated properly in the facility itself. Only then is the private facility authorized to seek offsite hospitalization or other offsite treatment. The vendor is solely responsible for the costs of the offsite treatment, including the security costs of treating or hospitalizing an inmate offsite. The transfer agreement authorizes the private correctional facility to use the RMC, when space is available, as an alternative to minimize security costs for offsite treatment of the private correctional facility’s inmates. Under these facts, the undersigned cannot find that DMS erred by not including an adjustment to the per diem rate to account for treatment costs of private correctional facility inmates at RMCs. 4. PILOT Fees Next, CCA argued that the published per diem rates are in error because they were not adjusted to account for the fees paid by the private correctional facility to the local government as Payments in Lieu of Taxes (PILOTs). A PILOT is made to compensate local governments for the tax revenue lost by virtue of the public correctional facility property being used for a governmental function. DOC does not pay property taxes or PILOT fees related to Holmes, and no such fees are included in the Holmes per diem rates. However, the Bay and Moore Haven facilities are subject to PILOT fees required to be paid to local governments. Such fees are deducted from payments due to private correctional facility operators pursuant to the ITN, and are paid directly to the local governments assessing such fees. Pursuant to section 957.07(2), Florida Statutes, [r]easonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as private rather than a public entity, including, but not limited to, corporate income and sales tax payments, shall be included as cost savings in all such determinations. PILOT fee payments for Bay and Moore Haven are clearly included within the definition of section 957.07(2), Florida Statutes. Accordingly, PILOT fee payments for Bay and Moore Haven should have been included as an adjustment in the Amendment 11 per diem rate spreadsheets. Because PILOT fees were not included in the per diem rates published in Amendment 11 for Bay and Moore Haven, the rates were incorrect. 5. Major Maintenance and Repair Fund The ITN requires payments to be made by private correctional facility operators to the Major Maintenance and Repair Fund (MMRF). MMRF monies are used by the private facilities for maintenance, repairs, and renovations. Payments to the MMRF are deducted by DMS from payments due to private correctional facility operators, thereby reducing the per diem rate paid to private contractors. CCA argues that the per diem rates published in Amendment 11 are erroneous since those rates were not adjusted for MMRF payments. However, if the entire MMRF amount were credited to the private correctional facility, the per diem would not include any costs associated with regular repairs, maintenance, or other facility improvements. The amount paid into the MMRF is returned to the private correctional facility when repairs and maintenance are needed and conducted. There may be better ways to account for the maintenance costs of the private correctional facilities, but the undersigned finds no error in the per diem rate calculation on that basis. 6. Fleet Payments CCA contends the per diem rates should be adjusted to account for the requirement that the private correctional facility acquire a vehicle fleet for each of the three facilities, and that DMS erred in excluding the vehicle fleet costs for Holmes and Okeechobee when calculating the per diem rates. In calculating per diem rates, DMS excluded the one- time fleet cost of $573,986 associated with the purchase of the State vehicle fleet to operate the comparable public correctional facilities. The uncontroverted testimony of Mr. Tallent was that those costs were excluded because the fleets were acquired at the time the Holmes and Okeechobee facilities were first constructed. For example, the Holmes fleet was acquired 24 years ago. Because vehicle costs have changed dramatically during the intervening years, any adjustment to account for fleet cost would be insignificant. Additionally, Mr. Tallent testified that adjusting the per diem rate to account for the fleet charge would provide a windfall to a company, such as CCA, which was currently operating one of the facilities if it was awarded the contract again. At one point, CCA expressed that they were not actually concerned with whether the fleet acquisition cost had been incorporated into the per diem, but rather whether ongoing maintenance costs were included.10/ Mr. Tallent’s testimony was uncontroverted that the operating per diem of the public facilities includes all vehicle maintenance and fuel costs.11/ As such, the undersigned finds that DMS did not exclude vehicle fleet maintenance and fuel costs. The ITN requires private correctional facility operators to provide a fleet of vehicles for use at the Bay, Graceville, and Moore Haven facilities.12/ Given the greater weight of the evidence, the undersigned finds that excluding the fleet costs from the per diem rates incorporated as Amendment 11 was not erroneous. 7. Economies of Scale Last, CCA argues that the per diem rates should be adjusted to account for the economies of scale realized at Holmes and Okeechobee because these facilities are operated above design capacity. CCA maintains this adjustment is necessary since Bay, Moore Haven, and Graceville may not exceed design capacity under the contract. Mr. Upchurch agreed that an economies of scale adjustment would be appropriate if a reasonable way to calculate that adjustment could be determined. The 2005 Per Diem Workgroup was convened to establish per diem operating rates for private correctional facilities which would be comparable to operation of public facilities. The report provides, “[t]he workgroup has not attempted to estimate the impact of economies of scale that are not available to private facilities. The workgroup, however, was provided with two estimates ranging from $6.66 per day from the Auditor General’s office to $7.10 per day from Geo Group.”13/ Although the Workgroup report refers to the Auditor General's estimate as an attachment thereto, the estimate was not attached to the report introduced into evidence. Further, no testimony was presented relating to whether the estimates from either the Auditor General or GEO Group were reasonable or otherwise reliable. Given the lack of evidence on whether, and by what methodology, an economies of scale adjustment could be calculated, the undersigned does not find that DMS erred by excluding an adjustment for economies of scale. Accounting Error Jinanne West is CCA’s Senior Director for Financial Planning and Analysis. Ms. West has a master’s degree in accounting and is a certified public accountant. Prior to joining CCA, Ms. West worked for Arthur Andersen for three years, and then taught college accounting. Ms. West evaluated the spreadsheets used to calculate the public comparable per diem rates for Bay, Moore Haven, and Graceville and found fundamental accounting errors. To determine DOC’s per diem cost to operate the Bay and Moore Haven facilities, the Amendment 11 per diem rate spreadsheets divided Holmes’ operating costs by its average inmate population of 1,466 to arrive at a per diem rate, but then multiplied the per diem rate by the Bay and Moore Haven inmate populations of 985 to determine the daily costs associated with programming at those facilities. As a result, all operating costs attributable to Holmes were reduced by 33% (1,466 minus 985 divided by 1,466) to arrive at DOC’s projected operating costs to operate a 985-bed facility similar to Holmes. DOC then deducted from the remaining 67% of the Holmes operating costs 100% of the Holmes costs related to Holmes work squads and Holmes work camp staff, and additionally deducted 100% of the savings expected at Holmes due to the transition to 12-hour shifts. However, costs attributable to Holmes work squads and Holmes work camp staff and savings attributable to the 12-hour shift adjustment had already been reduced by 33% in the Amendment 11 per diem rate spreadsheets, given the difference in population between Holmes and the Bay and Moore Haven facilities. By deducting 100% of these costs and expected savings from the remaining 67% of the Holmes operating costs, DOC in effect incorrectly deducted 133% of Holmes’ costs and anticipated savings from the per diem rates. A similar error was found in the spreadsheet for Graceville. The inmate population at Okeechobee is slightly smaller than that at Graceville, leading to erroneous adjustments to the per diem for program costs and adjustments made to account for operational differences at Okeechobee. Due to this error in accounting methodology, the per diem rates published in Amendment 11 for Bay, Moore Haven, and Graceville were incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Management Services, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein, and withdraw ITN 12/13-010 for the Operation and Management of Bay Correctional Facility, Graceville Correctional Facility, and Moore Haven Correctional Facility. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
Findings Of Fact On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist. While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face. Officer Winkle then grabbed Mr. Kitchens and put him on the floor. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed. DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of January, 1992.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER 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 13th day of August, 1993.
Findings Of Fact The Petitioner herein, Michael J. Hunter, was employed by the Apalachee Correctional Institution (ACI) in Sneads, Florida in November, 1979. Immediately after his employment he was given five weeks training at Raiford, Florida and served as a correctional officer at ACI from that point until July 7, 1983. The four performance reports rendered on him during the period of employment were all satisfactory or above and other than the instant case, he was subject to no disciplinary action during the entire period he worked for the Respondent. His function as a corrections officer was to maintain order in the dormitories, security for the area, and to protect inmates' safety. He worked the evening shift from 4 pm to midnight for three years and on the midnight shift from midnight to 8 am for 6 months. During the period of his employment he was instructed, and it was his understanding, that a corrections officer may touch a prisoner in the line of duty only to maintain order, to break up a fight, and to protect the safety of himself, the prisoner, or others but not to abuse a prisoner or to administer punishment. On June 3, 1983, he was instructed by his supervisor, Sgt. Hines, to proceed to the basement of the dormitory in which he was working to open up the TV room and the clothing line. When he arrived there, he found that the people assigned to operate the clothing line had not shown up yet so he went to the TV area to check on it. When he came back to the clothing room, he saw that two inmates, Wilkins and Ashbury, had broken into the room and stolen some underwear. He apprehended them and told all the prisoners in the area to go upstairs. All did except prisoner Watkins, the victim of the alleged assault in issue here who refused to go. It has been Petitioner's experience that some inmates refuse to obey the directions of anyone holding a rank less than sergeant. In any case, Petitioner was able to convince Watkins to go to the guard room upstairs and while there, Watkins and Petitioner got into a verbal dispute. Just as they were arguing, Petitioner's supervisor, Sgt. Hyatt, came into the office. At this point, Watkins jumped up and yelled at him and accused Petitioner of hitting him. Petitioner categorically denied striking Watkins. He admits telling Watkins he could have his "ass" for this but he does not believe that in the context of which that statement was used and the circumstances under which the situation took place, use of that word was necessarily inappropriate. It is Mr. Hunter's belief that a corrections officer such as he was would be ineffective and ignored if from time to time he did not use this type of language. He based this on his knowledge of the background and character of the inmates as well as their education level for the most part. According to Hunter, when Hyatt came in, Watkins jumped up and moved off to the side and yelled at Sgt. Hyatt to get Hunter "out of his face." Though Mr. Hunter denies intentionally touching Watkins, he admits it is possible that his finger may have touched Watkins' nose because at the time, they were very close. Young John Allen, another corrections officer at ACI, was on duty in the general area of this incident on the night in question. He overheard a disturbance downstairs and thereafter walked into the dormitory office. When he did, he saw 15 inmates come up from downstairs, excited, to see the duty sergeant. In response, Allen called Sgt. Hyatt who came into the room and started talking to the inmates. Just then, according to Allen, Hunter came in. At this point Hunter and Watkins started arguing. Hunter walked up to Watkins and talked to him in strong terms. Allen overheard Hunter say, "Boy, I want you bad." and put his finger in Watkins' face. During this time, the other inmates surrounding the individuals were becoming more and more excited. At this point, according to Allen, Hyatt called Hunter but Hunter did not respond. Notwithstanding Hunter's denial that he hit Watkins, Allen indicates that he saw Hunter hit Watkins with a short, quick punch to the left side of abdomen. Admittedly, this punch was not hard enough to knock Watkins down. While this was all going on, Allen heard Hyatt call to the Petitioner several times to no avail. Finally, Hyatt told Watkins to go outside and sit down. He also got Hunter to come back to the rear of the office. Once this was done, Petitioner again went out to where Watkins was sitting and again called him "Boy" and put his finger in Watkins' face. At this point, another officer came up and prevailed upon the Petitioner to leave. Allen contends that he was in the room with Hunter and Watkins at the time of the incident. Hunter contends that Allen was standing outside the room in the dormitory looking in through a wide glass window. He says that though he was at all times looking directly at Watkins, his peripheral vision is such that he was able to see Allen off to the side where he was standing. Allen contends he was approximately 6 to 8 feet away, slightly off to the side, and there were no obstructions to his view of the incident even though there were a lot of people in the room. Allen also contends that throughout this entire fracas, Watkins never jumped at Petitioner as is claimed but was trying to break away at all times. Watkins was sent for medical evaluation immediately after the incident as a part of standard procedure and it was determined that he received no injuries as a result of it. Watkins, sometime after the incident, but within a short time, came to Allen indicating his displeasure with the way Allen had handled the situation. In this conversation, Watkins indicated to Allen he did not want to see Petitioner fired on the basis of this incident. The structure of the guard force at ACI is quite similar to that of a military organization. The guards do wear uniform but do not carry weapons inside the prisoner area because of the volatile situation that can rapidly develop into a confrontational situation. While the use of bad language is not unusual, corrections officers generally have to, if at all possible, maintain their equilibrium because when an officer is upset and becomes involved in a scene, inmates also get upset. Because no weapons are carried, therefore, the officers have to be careful not to create, encourage, or maintain an explosive situation wherein they or someone else could get hurt. Within the guard structure the lowest or first level is that held by both Petitioner and Mr. Allen, corrections officer 1. Hyatt is a corrections officer 2, equivalent to the rank of sergeant, and in a lead worker position. Both CO 1 and CO 2 positions are in the same collective bargaining unit. A CO 2 has no disciplinary action authority and is not considered to be management. As such, a CO 2 can neither hire nor fire but may recommend either discipline or termination of employment. The supervisory level starts with CO 3, a grade equivalent to that of a lieutenant. This individual can approve leave, assign personnel, and effectively recommend disciplinary action which, ordinarily, is taken by the superintendent of the facility. Al Cook has been the superintendent of ACI for 9 years and as such has the authority to discipline and terminate employees in accordance with Department of Corrections rules and the appropriate statutes. After an investigation into the incident in issue here, he ultimately discharged Petitioner for striking an inmate. During his 15 years as a superintendent at one institution or another he has discharged one other corrections officer for physical abuse. Petitioner here was, he believes, however, the first. The other, a white officer, was discharged for kicking an inmate. Race was not in issue in the dispute here. Hunter and Watkins are both black. After the incident in question, Hyatt allowed Hunter to go see the lieutenant who gave him the opportunity to either go back to work or go home for the evening. Because he did not wish to work with Hyatt any more that evening, Petitioner chose to go home and report the following morning. When he did he was again told to go home, this time for several days, and return the following Tuesday. At this time he was interviewed by Colonel Jones who advised him to come back and see the superintendent on Wednesday, which he did. After waiting all day on Wednesday to see the superintendent, he was told to come back on Thursday. When he did, after waiting another hour, he was interviewed by Mr. Cook who heard his story. When he was finished, Cook indicated that he believed the other officers' stories over Hunter's and gave him the option to either resign or be fired. When Hunter refused to resign, he was discharged on July 7, 1983. Later that day he was shown the statements signed by 5 inmates and the other officers including Hyatt who said they saw him hit Watkins. These statements were not introduced into evidence at the hearing. However, Petitioner admits in his testimony that he saw them and that they exist. He also admits having come close to Watkins in an altercation which involved the use of bad language and which resulted from high feeling. Though he admits that his finger may have touched Watkins' nose, he denies punching him. However, the testimony of Mr. Allen, if believed, tends to indicate that he did. The inconsistency between the testimony of Petitioner and that of Allen as to where Allen was standing can be resolved easily in favor of Mr. Allen because, in light of the circumstances involving high feeling and the fact that Petitioner admits he saw Allen only out of the corner of his eye, it is most probably that Allen was in the room and not outside as Petitioner contends. In any case, in this specific as in the specific as to whether or not Watkins was hit by Petitioner, the resolution of the dispute if not clear from the evidence must be made on an analysis of the evidence on the basis of, inter alia, who has the most to gain or lose by telling the truth or a falsehood. In this case, it is clear that Petitioner has the most to lose by telling the truth because under the statute in question, if he did in fact unlawfully strike Watkins, he is subject to termination. Another factor to consider is the demeanor of the witnesses while on the stand. Here both Allen and Petitioner appeared to know what it was they were saying and did not appear to be rehearsed. Their testimony appeared spontaneous and was believable. In light of the above, it can be concluded, therefore, considering the nature of the altercation and the high feeling involved, that Petitioner did in fact strike Watkins.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED THAT the Petition of Michael Hunter, to be reinstated to his position of employment and to be awarded back and front pay, benefits, and costs and attorney's fees be denied. Recommended in Tallahassee, Florida, this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Preston T. Everett, Esquire Asst. General Counsel Dept. of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32315 Dana Baird, Esquire 325 John Knox Road Suite 240, Bldg. F Tallahassee, Florida 32303 Ben R. Patterson, Esquire O. Box 4289 Tallahassee, Florida 32315 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, Florida 32301 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION OF HUMAN RELATIONS MICHAEL HUNTER, EEOC Case No. 046842030 Petitioner, FCHR Case No. 84-0316 DOAH Case No. 84-2891 vs. FCHR Order No. 86-015 STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Respondent. / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter: Commissioner John J. Sulik, Panel Chairperson, Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. APPEARANCES For Petitioner Michael Hunter: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32325 For Respondent State of Florida, Department of Corrections: Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Preliminary Matters Michael Hunter, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 197, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that State of Florida, Department of Corrections, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black). In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On June 29, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred. On July 31, 1984, the petitioner filed a Petition for Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on January 3, 1985, in Chattahoochee, Florida, before Arnold H. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on February 19, 1985. Petitioner filed exceptions to the Recommended Order. Respondent filed a response. Pursuant to notice, oral argument was originally held on April 19, 1985, at which time the parties were advised that the Commission was unable to locate the record in this proceeding. The parties ultimately produced a copy of the record 2 and the deliberation was rescheduled to February 28, 1986, in Tallahassee, Florida before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition. Petitioner's Exceptions and Respondent's Response Petitioner excepts to the Hearing Officer's failure to find that confrontations with inmates involving Correctional Officers Foran and Mayo were not comparable to Petitioner's confrontation. Petitioner further excepts to the Hearing Officer's failure to consider Petitioner's statistical evidence showing that 17 percent of Respondent's workforce is black, whereas 75 percent of the individuals terminated in 1982 through 1984 at Petitioner's worksite, Apalachee Correctional Institution, were black. Respondent counters by asserting that the confrontations involving Correctional Officer's Foran and Mayo were not comparable to the confrontation involving Petitioner inasmuch as Respondent's internal investigations supported the respective disciplinary actions taken. Respondent further asserts that Petitioner's statistical computations, based upon only four terminations, were meaningless. Analysis and Discussion The record reveals that the Hearing Officer limited the scope of the proceeding to incidents which had occurred at Respondent's Apalachee Correctional Institution where Petitioner was employed at the time of termination. In his findings of fact, the Hearing Officer found that Petitioner was one of two correctional officers to be terminated by the superintendent of the institution for abuse to inmates. Petitioner was the first correctional officer discharged by the superintendent for such offense. The other correctional officer was white. We believe that the Hearing Officer improperly limited the evidence to incidents of like nature at Apalachee Correctional Institution. Petitioner claimed that white correctional officers had engaged in behavior similar to that with which Petitioner was terminated, but the white correctional officers were not similarly punished. If white correctional officers had been engaged in similar improper conduct known to Respondent and those correctional officers were not similarly punished, an inference is raised that Petitioner was disciplined for reasons other than improper conduct. Petitioner should have been allowed to present such evidence before the Hearing Officer because it would have tended to indicate that Respondent's reasons were pretextual. Support for this conclusion is derived from McDonnell Douglas Corporation v. Green, 411 U.S. 972, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the black plaintiff had been accused of illegal activity against the employer. The employer cited such unlawful conduct as a legitimate, nondis- criminatory reason for the adverse employment action. The supreme Court accepted this reason, but then held that the plaintiff had to be given the opportunity to rebut the legitimate reason. Plaintiff must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who is engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Id. at 804. In this cause, Petitioner should similarly be afforded a fair opportunity to show that Respondent's stated reason for Petitioner's termination, corporal punishment of an inmate, was a pretext. The statutory provision governing corporal punishment of inmates which had been in effect from 1957 through the date of Petitioner's termination reads: Corporal punishment prohibited; penalty. It is unlawful for any corporal punishment, any cruel or inhuman punishment, or any punishment by which the flesh of the body is broken, bruised, or lacerated to be inflicted upon any prisoner at any time. Any person who violates the provisions of this section shall be discharged immediately and shall not again be employed in any capacity in connection with the correctional system and shall be punished as provided by law for whatever offense he may have committed in perpetrating the act. No prisoner shall be punished because of any report or represen- tation which he may have made to any inspector. Section 944.35, Fla. Stat. (1983). Inasmuch as this statutory provision had statewide application, the discipline given for corporal punishment of inmates should have been evenhandedly applied at Respondent's various correctional institutions. Moreover, evidence of Respondent's application of this statutory provision throughout its various institutions becomes especially relevant where the terminations at Apalachee Correctional Institution reflect a proportionately greater number of blacks being terminated at the institution than whites, but where Petitioner was the first person terminated at such institution for that particular offense. Therefore, petitioner should be afforded the opportunity to present evidence that white employees violated the above-cited statutory provision but were nevertheless retained. Remand Accordingly, the panel remands this cause to the Hearing Officer for further evidentiary proceedings consistent with this Order. It is so ORDERED. DATED this 24th day of September, 1986. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Robert L. Billingslea; and Commissioner Robert R. Joyce. Commissioner John J. Sulik, Panel Chairperson, dissenting. I would limit the scope of the evidentiary inquiry to Apalachee Correctional Institution and/or its superintendent and adopt the Hearing Officer's recommendation of dismissal. FILED this 30th day of September, 1986, in Tallahassee, Florida. Betsy Howard, Clerk of the Commission
Findings Of Fact Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in administrative confinement, he did not receive any incentive gain time during that period. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months. In a prior period of administrative confinement, he claims he was not told why he was there officially. Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time, (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed. The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00 P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: l. The Petitioner, Terry Wooden, a black male, was hired by the Respondent, State of Florida, Department of Corrections, on December 5, 1980 as a Correctional Officer I at River Junction Correctional Institution. River Junction Correctional Institution (RJCI) is a secure facility responsible for the care, custody and control of certain inmates. Correctional Officers are assigned to security posts which are located throughout the facility. Some "inside" security posts are located within inmate dormitories. Outside perimeter security posts, which are small tower-like buildings, are located along the perimeter fence and are the last observation posts between containment and possible inmate escape. For security reasons, the Respondent prohibits sleeping on the job and requires its correctional officers to remain alert at all times. Supervisors (generally employees holding the rank of sergeant) often make "rounds" of the facility wherein security posts are visited to ensure that the officer on, duty at that post is alert. RJCI procedure requires that an officer on duty at a security post "challenge" a supervisor or other correctional officer who approaches the security post. When a supervisor enters a dormitory, the officer assigned to that post is required to challenge that person by immediately leaving the officer's station (located within the dormitory) to meet the approaching person. If the officer is on the telephone or engaged in some activity, it is acceptable for the officer to wave his hand to the approaching person or indicate in some other manner that he is aware that someone has entered the area. When a supervisor approaches an outside security post, the officer on duty is required to meet the approaching individual at the door of the building. Discipline of employees at RJCI is based on a progressive system. During the time the Petitioner was employed at RJCI, a sergeant was required to report a sleeping/unalertness violation by a correctional officer to the shift lieutenant (supervisor of all employees on a particular shift). There were no written guidelines and the reporting officer was required to exercise some discretion in determining whether he believed that an offense had been committed. On the first incident, the shift lieutenant would counsel the employee about the infraction, but no written report was made. On the second report of an offense to the shift lieutenant, a written report of the incident would be prepared by either the reporting officer or the shift lieutenant. The shift lieutenant would interview the employee about the alleged violation and refer the report to the department head (correctional officer chief). The department head would then submit the written report to the personnel manager with recommendations. Upon receiving a written report of an infraction from the department head, the personnel manager would gather information pertaining to the offense and give it to the superintendent, along with recommendations for disposing of the case. The superintendent would then schedule a "predetermination conference", confront the employee with the allegations and determine the disciplinary action to be taken. Prior to 1979 and until June 1982, L. C. McAllister, a white male, was superintendent at RJCI; from June 1982 to December 10, 1982, George Ragans, a white male, was acting superintendent at RJCI; from December 13, 1982 through August 1983, Ken Snover, a white male, was superintendent at RJCI. Each superintendent was responsible for determining the particular penalty to be imposed using guidelines set forth in Chapter 33, Section 9 of the Rules of Personnel. Generally, the employee's first sleeping/unalertness violation reported to the personnel manager, and ultimately, the superintendent, would result in counseling (oral reprimand); the second violation would result in a written reprimand; the third violation would result in a suspension; the fourth violation would result in a longer suspension or dismissal; and, the fifth violation would result in dismissal. Major Miles, a white male, is a department head and functions as the overall supervisor of correctional officers at RJCI. Miles assigns posts and shifts to correctional officers. Major Miles usually assigns new correctional officers to midnight shift after they complete orientation. After Petitioner completed his orientation period, he was placed on midnight shift (12:00 p.m. to 8:00 a.m.) and assigned to Post 23 in "G" dormitory. The Petitioner completed his one year probationary period on December 5, 1981. The Petitioner was assigned an overall rating of "satisfactory" by his shift supervisor, Lieutenant Carter, a black male. The evaluation stated that Petitioner got along well with supervisors and fellow employees. In December of 1981, Lieutenant Childs, a white male, became the Petitioner's shift supervisor. Initially, the Petitioner and Lieutenant Childs enjoyed a friendly relationship. Lieutenant Childs drove the Petitioner to work on several occasions and both men shared a common interest in sports. On December 13, 1981 an officer made a routine check of "G" dormitory and found Petitioner asleep in the officer's station. The Petitioner was counseled about this first infraction. Shortly after Petitioner's sleeping incident of December 13, 1981, Major Miles changed Petitioner's post assignment from dormitory to Perimeter Post 3. Major Miles changed Petitioner's post because several inmates had complained to him that a lot of stealing was taking place and that Petitioner was not watchful enough to prevent it. The inmates also complained that Petitioner's counseling style seemed like harassment. After Petitioner's post was changed from "G" dormitory to Perimeter Post 3, his relationship with Lieutenant Childs began to turn sour. The Petitioner was "concerned" because he believed that Lieutenant Childs had input into Major Miles' decision to reassign him. On May 10, 1982, Lieutenant Childs found the Petitioner unalert at Perimeter Post 3. The Petitioner received a written reprimand for this second infraction. On August 19, 1982, Sergeant Pollock, a black male, found Petitioner unalert while on duty at Perimeter Post 3. Sergeant Pollock reported the incident to Lieutenant Childs but suggested that Petitioner be counseled rather than "written-up". Sergeant Pollock believed that a lesser punishment might encourage Petitioner's improvement. Lieutenant Childs told Pollock to think about it for a couple of days. On August 21, 1982, Sergeant Parks and Sergeant Tharpe found Petitioner unalert at his post. When Sergeant Pollock discovered this incident, he changed his mind about his previous recommendation to Lieutenant Childs. Childs told Pollock to submit a written report. The Petitioner was suspended for 3 days for these third and fourth sleeping/unalertness infractions. On September 2, 1982, Lieutenant Childs completed an employee rating evaluation on Petitioner for the period September 1, 1981 to September 2, 1982. Petitioner was given an overall rating of "satisfactory", but Lieutenant Childs noted several areas of concern. Lieutenant Childs mentioned that Petitioner seemed to interpret counseling sessions "as personal threats conspired, for no bonafide reason to harass him." However, Lieutenant Childs went on to note that Petitioner's attitude and work performance was improving and that Petitioner was "making a definite and positive effort to correct his shortcomings." On October 28, 1982 an inmate escaped from RJCI. At the time of the inmate's escape, Petitioner was on duty at Perimeter Post-3 and William Chessher, a white correctional officer, was on duty on Perimeter Post 2. Major Miles, the department head, recommended that both men be disciplined for being unalert. Because the inmate's escape route took him through Perimeter Post 3's primary area of responsibility, Major Miles recommended that Petitioner be dismissed; Miles recommended that Chessher be reprimanded or suspended because the escape route was along Perimeter Post 2's secondary area of responsibility. On November 18, 1982, Acting Superintendent George Ragans held a predetermination conference concerning Petitioner's October 28, 1982 unalertness charge. Mr. Ragans found that the offense was substantiated but did not follow Major Miles' recommendation that Petitioner be dismissed. Ragans suspended the Petitioner for fifteen (15) days for this fifth sleeping/unalertness violation. Immediately following the November 18, 1982 predetermination conference, Ragans suggested to Petitioner that Petitioner should request a shift change. However, Petitioner explained to Ragans that he had a new baby at home, was taking college courses and did not want a shift change at that time. When Petitioner returned to work on December 16, 1982 after his fifteen (15) day suspension he had decided that he wanted a shift change. Petitioner went to the control room to find out how to submit a shift change request. In the control room, Petitioner spoke with a female officer concerning the procedures for requesting a shift change. The female officer agreed to type a shift change request for Petitioner. The female officer typed the request and gave Petitioner a copy. Shift change requests are directed to the shift lieutenant, in this instance, Lieutenant Childs, who then passes the request to Major Miles for final action. The female officer told Petitioner that she would put the original request for shift change in Lieutenant Childs' box in the control room. For some reason, Lieutenant Childs never received Petitioner's written request for shift change. In January 1983, the Petitioner spoke with the new superintendent, Ken Snover, regarding a shift change. Mr. Snover told Petitioner to proceed through the change of command and if he was still not satisfied, to return and speak with him again. One night, while on duty sometime after December 16, 1982 Petitioner asked Lieutenant Childs about a shift change. Lieutenant Childs told Petitioner that there were going to be a lot of changes made. Petitioner spoke to Major Miles on one occasion after December 16, 1982 and asked about a shift change. Major Miles told Petitioner to submit a written request. Major Miles never received a written request for shift change from Petitioner. Sometime prior to August 1, 1983, Petitioner was temporarily assigned to "G" dormitory and worked with officer Gano, a white male. Gano complained to Lieutenant Childs that Petitioner was sleeping on duty. Before Gano complained to Childs, Childs had received allegations of Petitioner being asleep from other correctional officers. Because of those complaints, Childs had instructed two sergeants to closely review Petitioner's dormitory work habits. On one occasion, the sergeants told Lieutenant Childs that Petitioner appeared to be asleep while on duty. On August 1, 1983, Lieutenant Childs instructed officer Gano to let him know if Petitioner was sleeping by giving a pre-arranged signal. Officer Gano found Petitioner asleep or "non-alert" and gave the pre-arranged signal. Lieutenant Childs entered the dormitory without Petitioner challenging him and found Petitioner unalert. Lieutenant Childs wrote a report on Petitioner's sixth sleeping infraction. Superintendent Ken Snover held a predetermination conference concerning Petitioner's August 1, 1983 unalertness charge. Snover ordered the Petitioner's dismissal, effective August 18, 1983. Steve Williams, a white Correctional Officer I, was caught sleeping on April 20, 1981 and was given an oral reprimand for this first offense. Williams was caught sleeping again on June 21, 28, and July 31, 1981. Because of the personnel manager's vacation a predetermination conference letter could not be sent until after the third occurrence and all three violations were addressed at the same conference. Williams was given a written reprimand for this second sleeping infraction. Thomas Jackson, a black Correctional Officer I, was caught sleeping on October 29, 1982 and was given an oral reprimand for this first offense. On May 13, 1983, Jackson was caught sleeping a second time and was given an official reprimand. On August 10, 1983, Jackson was caught sleeping a third time and was suspended for one week (5 working days). Jackson was offered and accepted a shift change, from midnight to evening shift. Dennis Edwards, a white Correctional Officer I, was caught sleeping in July 1982 and was counseled for this first offense. In Apri1 1983, he was caught sleeping again and was given a written reprimand. In July 1983, Edwards was suspended for 5 working days because of his third offense of sleeping while on duty. Larry Garrett, a black Correctional Officer I, was counseled for sleeping on duty for his first offense, but no documentation was made to his personnel file. On September 5, 1981 Garrett was caught sleeping a second time and was given a written reprimand. On December 3, 1981, Garrett was caught sleeping a third time and was suspended for three days. Garrett was offered a shift change, but declined because he was taking classes and had a newborn baby. On December 16, 1981, Garrett was caught sleeping for the fourth time and was terminated. Michae1 Weeks, a white Correctional Officer I, was caught sleeping on June 9, 1981 and was given a written reprimand for this first offense. On May 10, 1982 he was caught sleeping a second time and was given a written reprimand. Weeks was caught sleeping again on August 1, 8 and 10, 1982. Weeks was given a predetermination conference letter, but before the hearing was held, he was caught sleeping again on August 18, 1982. Weeks voluntarily resigned on August 18, 1982. Warren Harris, a black Correctional Officer I, was caught sleeping on November 29, 1979 and was given a written reprimand for this first offense. On June 13, 1981, Harris was caught sleeping again and was given another written reprimand. On September 9, 1981, Harris was caught sleeping for the third time and was suspended for three days. Harris was caught sleeping again on October 28 and 29, 1981 for his fourth offense. Harris was given a letter of termination, but resigned before the termination took effect. Harold Bailey, a white Correctional Officer I, was caught sleeping on June 14, 1982 and was counseled for this first offense. Bailey was caught sleeping again on July 17, 1982 and was given a written reprimand. On January 5, 1983 Bailey was caught sleeping on duty for the third time and was suspended for five days. On April 2, 1983, Bailey was charged with a fourth offense but Superintendent Snover found the allegations "unsubstantiated." Nevertheless, Bailey was counseled and documentation of the incident was placed in his personnel file. Bailey was offered a shift change but he refused it. Bailey's shift was later changed. In an effort to assist employees who were working midnight shift and having problems staying awake, the personnel manager and the superintendent would sometimes offer the employee a shift change or encourage the employee to seek a shift change. At various times, both black and white employees were offered, or encouraged to seek shift changes when they were having trouble on midnight shift. From time to time, correctional officers would submit requests for shift and/or post changes. Major Miles, the department head, usually made shift or post changes based on an individual's written request and the needs of the institution to have certain security posts staffed. Major Miles made some shift and post changes without a written request and over the objection of the employee if it was required by the needs of the institution. Shift and post changes at RJCI were given to both white and black employees in a substantially similar manner. Lieutenant Childs, upon receiving a request for a shift or post change, was required to forward the request to Major Miles for final action. Lieutenant Childs would forward a request for shift or post change with a favorable recommendation only if he believed the employee "earned" the recommendation by good performance on his current shift or post. As shift lieutenant, Childs was authorized to make some temporary post re-assignments for employees on his shift. During the last several months of Petitioner's employment, Petitioner was permanently assigned to Perimeter Post 3, but Lieutenant Childs temporarily assigned him to a post in "G" dormitory. While Petitioner was temporarily assigned to "G" dormitory, Lieutenant Childs became aware through "the grapevine" that Petitioner wanted to have Mondays and Tuesdays off, rather than Tuesdays and Wednesdays. Because different post assignments, carried different days off, a change in days off would have required a post change. Lieutenant Childs told Sergeant Pollock to tell Petitioner that he would arrange for Petitioner to have the desired days off as soon as possible if Petitioner's work performance improved. In January 1983 a new Department of Corrections directive required that certain correctional officers receive 160 supplementary hours of training. A majority of the staff at RJCI was required to complete the supplemental training. From January 1983 through August 1983, personnel at RJCI were engaged in the on-going training program. One set of training classes were scheduled from 9:00 a.m. to 1:00 p.mand another set of classes were scheduled from 6:30 p.m. until 10:30 p.m., five days a week. During the period from January 1983 through August 1983, shift and post changes were made primarily to allow correctional officers the opportunity to attend the training sessions as required. As superintendent of RJCI, Ken Snover conducted "predetermination conferences" wherein he was required to review allegations, determine whether or not the charges were substantiated and then decide what disciplinary action to take. Superintendent Snover did not apply a lesser standard of proof at predetermination conferences where Petitioner was charged with sleeping/unalertness violations than he applied when white officers were involved. On one occasion Snover found that the allegations of sleeping were not sufficient to warrant disciplinary action against two white employees, Harold Bailey and Walter Dean, where the allegation was made by one sergeant but denied by both correctional officers. At the predetermination conferences that Snover conducted where Petitioner was charged, the allegations were all substantiated by one or more individuals and denied only by Petitioner. Perimeter Post 3 as well as other perimeter posts, are isolated outside security posts and are generally not considered to be the most desirable security post assignments. Both black and white officers were assigned to Perimeter Post 3 and other perimeter posts. A slight majority of the correctional officers permanently assigned to perimeter posts were black. There was no indication that correctional officers were assigned to Perimeter Post 3 on a racial basis nor as a "set up" to achieve dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Terry Wooden. DONE and ORDERED this 8th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day September, 1986. COPIES FURNISHED::: Drucilla E. Bell, Esq. Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Marva Davis, Esq. 379 E. Jefferson Street P. O. Drawer 551 Quincy, FL 32351 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esq. General Counsel Florida Commission on. Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 3230 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 21. The first sentence is rejected as a recitation of testimony. The second sentence is rejected as not supported by Competent substantial evidence. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 20 and 30. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 4. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence and/or misleading. Rejected as not supported by competent substantial evidence. 14A. Rejected as subordinate. 14B. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. 15A. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 15B. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 16A. Adopted in Finding of Fact 20. 16B. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 5. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as misleading and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 25 and 26. Partially adopted in Findings of Fact 27,^ 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 26, 27, 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 39, and 41. Matters not contained therein are rejected as subordinate, misleading and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as not supported by competent substantial evidence. (No paragraph 34). Partially adopted in Finding of Fact 43. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 48. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as subordinate. Adopted in Findings of Fact 12 and 15. Partially adopted in Findings of Fact 16 and 17. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 5 and 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. - Adopted in Findings of Fact 19 and 20. Partially adopted in Finding of Fact 17. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 27. Matters not contained therein are rejected as subordinate. Rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 27, 28 and 29. Adopted in Finding of Fact 44. Adopted in Finding of Fact 48. Partially adopted in Finding of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 39 and 47. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 36. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 33. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 38.
Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 2nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
