The Issue The issue in these consolidated cases is whether the Department of Juvenile Justice (the "Department") assessed Petitioners and Intervenor counties for secure juvenile detention care for fiscal year 2008-2009 in a manner consistent with the provisions of section 985.686, Florida Statutes, and Florida Administrative Code Rules 63G-1.001 through 63G-1.009.1/
Findings Of Fact Parties The Department is the state agency responsible for administering the cost-sharing requirements of section 985.686, Florida Statutes, regarding secure detention care provided for juveniles. With the exception of Intervenor Florida Association of Counties, Inc., the Petitioners and Intervenors (collectively referenced herein as the "Counties") are political subdivisions of the State of Florida. The specific counties that have petitioned or intervened in these proceedings are not "fiscally constrained" as that term is defined in section 985.686(2)(b), Florida Statutes. Each county is required by section 985.686 to contribute its actual costs for predisposition secure detention services for juveniles within its jurisdiction. The Counties are substantially affected by the Department's determinations of the number of secure detention days that are predisposition, and by the Department's allocation of those days among the Counties, an allocation that further determines each county's share of the cost for pre-disposition secure detention. The Counties are further substantially affected by the allocation method itself, which they assert is not authorized by section 985.686. Statutory and rule framework Section 985.686(1), Florida Statutes, provides that the "state and counties have a joint obligation, as provided in this section, to contribute to the financial support of the detention care provided for juveniles." Section 985.686(2)(a), defines "detention care," for purposes of this section, to mean "secure detention."2/ Section 985.03(18)(a), defines "secure detention" to mean "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement." Section 985.686(3), provides in relevant part that each county "shall pay the costs of providing detention care . . . for juveniles for the period of time prior to final court disposition. The department shall develop an accounts payable system to allocate costs that are payable by the counties." In summary, section 985.686 requires each non-fiscally restrained county to pay the costs associated with secure detention during predisposition care, and the Department to pay the costs of secure detention during post-disposition care.3/ The Department is charged with developing an accounts payable system to allocate costs payable by the counties. Section 985.686(5), sets forth the general mechanism for this allocation process: Each county shall incorporate into its annual county budget sufficient funds to pay its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition. This amount shall be based upon the prior use of secure detention for juveniles who are residents of that county, as calculated by the department. Each county shall pay the estimated costs at the beginning of each month. Any difference between the estimated costs and actual costs4/ shall be reconciled at the end of the state fiscal year. Section 985.686(10), provides that the Department "may adopt rules to administer this section." Pursuant to this grant of authority, the Department promulgated Florida Administrative Code Rules 63G-1.001 through 63G-1.009, effective July 16, 2006. Rule 63G-1.004 provides the detailed method by which the Department is to calculate the counties' estimated costs: Each county's share of predisposition detention costs is based upon usage during the previous fiscal year, with the first year's estimates based upon usage during fiscal year 2004-05. Estimates will be calculated as follows: All youth served in secure detention during the relevant fiscal year as reflected in the Juvenile Justice Information System will be identified; Each placement record will be matched to the appropriate referral based upon the referral identification code. Placements associated with administrative handling, such as pick-up orders and violations of probation, will be matched to a disposition date for their corresponding statutory charge; The number of service days in secure detention is computed by including all days up to and including the date of final disposition for the subject referral. Each county will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. The estimated cost will be billed to the counties in monthly installments. Invoices are to be mailed on the first day of the month prior to the service period, so that an invoice for the August service period will be mailed on July 1. Rule 63G-1.008 provides the method by which the Department is to reconcile the estimated payments with the actual costs of predisposition secure detention: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. If a county's actual usage is found to have exceeded the amount paid during the fiscal year, the county will be invoiced for the excess usage. The invoice will accompany the reconciliation statement, and shall be payable on or before April 1. If a county's actual usage was less than the estimated amounts paid during the fiscal year, the county will be credited for its excess payments. Credit will be reflected in the April billing, which is mailed on March 1, and will carry forward as necessary. Under the quoted rules, the Department determines an estimate for each county's share of predisposition secure detention costs. This estimate is provided to the counties prior to the start of the fiscal year in order to allow each county to "incorporate into its annual county budget sufficient funds" to pay for the costs of predisposition secure detention care for juveniles who reside in that county. To prepare this estimate, the Department utilizes the county's actual usage of secure detention facilities for the most recently completed fiscal year.5/ The amount of this usage is shown as that county's percentage of the total usage of predisposition secure detention care by all counties. The resulting percentage for each county is then multiplied by the "cost of detention care as fixed by the legislature" to arrive at the estimated amount due for each county. Rule 63G-1.002(1) defines "cost of detention care" as "the cost of providing detention care as determined by the General Appropriations Act." The term "cost of detention care" is used in rule 63G- 1.004, which sets forth the method of calculating estimnated costs. The term is not used in rule 63G-1.008, which addresses the annual reconcilation by which the Department purports to arrive at the "actual cost of the county's usage" for the fiscal year. The definition of "cost of detention care" references the Legislature's annual General Appropriations Act, which appropriates revenues for the operation of various state functions. An "appropriation" is "a legal authorization to make expenditures for specific purposes within the amounts authorized by law." § 216.011(1)(b), Fla. Stat. The General Appropriations Act for fiscal year 2008-2009 was House Bill 5001, codified as chapter 2008-152, Laws of Florida. Within chapter 2008-152, Specific Appropriations 1073 through 1083 set forth the appropriations for the juvenile detention program. These items included the cost of operating the secure detention centers and identified specific funding sources for the program. These funding sources were the General Revenue Fund ("General Revenue"), the Federal Grants Trust Fund, the Grants and Donations Trust Fund, and an amount identified under the Shared County/State Juvenile Detention Trust Fund ("Shared Trust Fund"). Section 985.6015(2), states that the Shared Trust Fund "is established for use as a depository for funds to be used for the costs of predisposition juvenile detention. Moneys credited to the trust fund shall consist of funds from the counties' share of the costs for predisposition juvenile detention." A total of $30,310,534 was appropriated from General Revenue to the Department for the operation of secure detention centers. This amount was intended to cover the Department's costs in providing post-disposition secure detention services, including the state's payment of the costs for detention care in fiscally constrained counties. See § 985.686(2)(b) & (4), Fla. Stat. A total of $99,583,854 was set forth as the appropriation for the Shared Trust Fund. This amount was not an "appropriation" as that term is defined by statute because it did not authorize a state agency to make expenditures for specific purposes. Rather, this number constituted the amount to be used in the preparation of the preliminary estimates that the Department provides to the counties for the purpose of budgeting their anticipated contributions toward the secure detention costs for the upcoming fiscal year. As will be discussed at length below, a refined version of this number was also improperly used by the Department as a substitute for calculating the counties' actual cost at the time of the annual reconciliation described in rule 63G-1.008. As set forth in rule 63G-1.004, the Department determines the estimate, then it notifies the counties of the estimated amount. The counties make their payments in monthly installments. Rule 63G-1.007 requires the Department to prepare a quarterly report for each county setting forth the extent of each county's actual usage. The counties receive their reports 45 days after the end of each quarter. Subsection (1) of the rule provides that the quarterly report "is to assist counties in fiscal planning and budgeting, and is not a substitute for the annual reconciliation or grounds for adjusting or withholding payment." At the end of the fiscal year, and no later than January 31, the Department must prepare an annual reconciliation statement for each county, to reconcile the difference, if any, between the estimated costs paid monthly by the county and the actual cost of the county's usage during that period. If the county's actual cost is more or less than the estimated payments made during the fiscal year, the county will be credited or debited for the difference. Fla. Admin. Code R. 63G-1.008. Because a county is billed prior to the start of the fiscal year, the Department's initial estimate obviously cannot be based on actual costs for that fiscal year. However, the amount ultimately owed by each county following the annual reconciliation should assess the county's actual costs for predisposition secure detention care during that year, in accordance with section 985.686(5). Prior DOAH litigation The Department's manner of assessing the counties for predisposition secured detention services has been the subject of five prior DOAH cases, all of them involving Hillsborough County. Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07- 4398 (Fla. DOAH Mar. 7, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough I") dealt with the methodology used by the Department to determine the amount that Hillsborough County owed for predisposition secure detention services for fiscal year 2007-2008. Administrative Law Judge Daniel Manry found that the Department's practice of calculating a per diem rate for service days in secure detention was inconsistent with the Department's rule 63G-1.004(2). Instead of limiting Hillsborough County's contribution to a percentage of the amount "appropriated"6/ by the Legislature to the Shared Trust Fund, the Department was including its own General Revenue appropriation in the calculation, which inflated the county's assessment. Hillsborough I at ¶ 24. Judge Manry's findings led the Department to conclude, in its Final Order, that the calculation of a "per diem" rate for the counties should be abandoned as inconsistent with rule 63G-1.004. In a companion case to Hillsborough I, Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 07-4432 (Fla. DOAH Mar. 10, 2008; Fla. Dep't of Juv. Just. June 4, 2008)("Hillsborough II"), Judge Manry dealt with Hillsborough County's challenge to the Department's determination of utilization days allocated to the county for predisposition care. In this case, Judge Manry found that the Department had failed to comply with the requirements of section 985.686(6), which provides: Each county shall pay to the department for deposit into the Shared County/State Juvenile Detention Trust Fund its share of the county's total costs for juvenile detention, based upon calculations published by the department with input from the counties. (Emphasis added). The Department had allocated 47,714 predisposition utilization days to Hillsborough County, which was reduced to 47,214 after the reconciliation process. The county argued that the correct number of predisposition days was 31,008. The Department identified 16,206 challenged days under nine categories: contempt of court; detention orders; interstate compacts; pick up orders; prosecution previously deferred; transfer from another county awaiting commitment beds; violation of after care; violation of community control; and violation of probation. Hillsborough II, ¶¶ 25-27. Judge Manry found that the Department had allowed input from the counties during the rulemaking workshops for chapter 63G-1, but had "thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation." Id. at ¶ 28. The data provided by the Department to the county each year did not include final disposition dates, making it virtually impossible for the county to audit or challenge the Department's assessments. Judge Manry also found that the absence of disposition dates deprived the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that the Department had categorized as "predisposition." Id. at ¶ 30. Judge Manry rejected the Department's contention that the county's allegation of misclassification was a challenge to agency policy. He found that the issue of the correct disposition date was a disputed issue of fact not infused with agency policy or expertise that could be determined through conventional means of proof, including public records. Id. at ¶¶ 31-32. The Department failed to explicate "any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days." Id. at ¶ 34. Judge Manry made the following findings of significance to the instant proceeding: The trier-of-fact construes the reference to placement in Subsection 985.03(18)(a) to mean residential placement. Secure detention includes custody in a detention center for both predisposition and post-disposition care. Predisposition care occurs prior to adjudication or final disposition. Post-disposition care occurs after adjudication or disposition but prior to residential placement. Post-disposition care also includes custody in a detention center after final disposition but prior to release. Although this type of post-disposition care comprises a small proportion of total post-disposition care, references to post-disposition care in this Recommended Order include care after final disposition for: juveniles waiting for residential placement and juveniles waiting for release. (Emphasis added). Judge Manry found that "secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care." Id. at ¶ 36. He recommended that the Department enter a final order assessing the county for the costs of predisposition care within the county "in accordance with this Recommended Order and meaningful input from the County." The Department adopted Judge Manry's recommendation. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-1396 (Fla. DOAH June 30, 2009; Fla. Dep't of Juv. Just. Sept. 17, 2009) ("Hillsborough III"), the dispute between Hillsborough County and the Department centered on 9,258 detention days that the Department had assigned to the county for which no disposition dates were available. Hillsborough III at ¶ 2. The Department took the position that it could identify disposition dates for all juveniles who had been transferred to its care and supervision, and that the "no date" cases indicated that those juveniles had not been transferred to the Department and were therefore the responsibility of the county. Id. at ¶¶ 4-5. Hillsborough County contended that any court order in a juvenile detention case is a dispositional order, after which the Department becomes responsible for the expenses related to retaining the juvenile. Id. at ¶ 5. Administrative Law Judge William F. Quattlebaum found that neither section 985.686 nor previous Final Orders suggest that fiscal responsibility for a juvenile is transferred to the Department upon the issuance of any court order. Id. at ¶ 6. He concluded that it is . . . reasonable to presume that the [Department] would have disposition information about juveniles who had been committed to [its] custody, and it is likewise reasonable to believe that, absent such information, the juveniles were not committed to the [Department's] custody. The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Id. at ¶ 13. However, the evidence also indicated that in some of the "no date" cases, the Department's records identified addresses of record that were facilities wherein the Department maintained offices. Id. at ¶¶ 7-8. Judge Quattlebaum recommended that the Department amend the annual reconciliation to give the Department responsibility for the disputed cases which lacked disposition dates but included Department addresses, and to give Hillsborough County responsibility for those cases with no disposition dates and no Department addresses. In its Final Order, the Department accepted the recommendation to the extent that cases lacking disposition dates were properly assigned to Hillsborough County. However, the Department concluded that "there is no legal authority to assign responsibility for detention stays based upon proximity to a Department office location," and therefore declined to amend the annual reconciliation as recommended by Judge Quattlebaum. In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-4340 (Fla. DOAH Dec. 18, 2009; Fla. Dep't of Juv. Just. Jan. 20, 2010) ("Hillsborough IV"), the issue was the Department's authority to issue multiple annual reconciliations. On January 30, 2009, the Department issued an annual reconciliation to Hillsborough County along with an invoice for a sizable credit due the county for having made estimated payments in excess of its actual costs for fiscal year 2007- 2008. The county did not object to this reconciliation statement. Hillsborough IV at ¶ 8. On February 24, 2009, the Department issued a second annual reconciliation that increased the county's assigned predisposition days and decreased the county's credit. Id. at ¶ 9. On March 18, 2009, the county sent a letter to the Department requesting clarification as to the two annual reconciliations. The Department did not respond to the letter. Id. at ¶ 10. On May 1, 2009, the county sent a second letter to the Department disputing a portion of the assigned utilization days. The Department did not respond to the letter. However, on May 14, 2009, the Department issued a third annual reconciliation to the county that again increased its assigned predisposition days and reduced its credit. Id. at ¶ 11. On June 4, 2009, the Department issued a fourth annual reconciliation. This reconciliation decreased the county's assigned predisposition days but nonetheless again reduced the county's credit. Id. at ¶ 12. On July 17, 2009, the Department finally responded to the county's May 1, 2009, letter by advising the county to file an administrative challenge to the allocation of predisposition days. Id. at ¶ 13. With these facts before him, Judge Quattlebaum reviewed section 985.686 and the Department's rules and then arrived at the following conclusions: There is no authority in either statute or rule that provides the [Department] with the authority to issue multiple annual reconciliation statements to a county. The [Department] is required by Florida Administrative Code Rule 63G-1.008 to issue an annual reconciliation statement on or before January 31 of each year. The rule clearly requires that March bills (payable in April) reflect any excess payment credit due to a county and that any additional assessment related to excess usage must be paid by a county on or before the following April 1. Absent any evidence to the contrary, the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding.... * * * 28. At the hearing, the parties suggested that the issuance of multiple annual reconciliation statements is the result of the resolution of objections filed by counties in response to the annual reconciliation statement. The resolution of such objections can result in additional costs allocated to another county. There was no evidence that counties potentially affected by resolution of another county's objections receive any notice of the objections or the potential resolution. The county whose allocated costs increase through the resolution of another county's objections apparently receives no notice until the [Department] issues another annual reconciliation statement for the same fiscal period as a previous reconciliation statement. * * * 30. Perhaps the most efficient resolution of the situation would be for the [Department] to require, as set forth at Section 120.569, Florida Statutes (2009), that protests to quarterly reports and annual reconciliations be filed with the agency. Such protests could be forwarded, where appropriate, to DOAH. Related protests could be consolidated pursuant to Florida Administrative Code Rule 28-106.108. Where the resolution of the proceedings could affect the interests of a county not a party to the proceeding, the county could be provided an opportunity to participate in the proceeding (and be precluded from later objection) pursuant to Florida Administrative Code Rule 28-106.109. As is apparent from the lengthy inset quotation, Hillsborough IV touched upon the subject of the Department's "tethering" of the counties, explained at Findings of Fact 50- 53, infra, though the validity of the practice was not directly at issue. Judge Quattlebaum addressed the due process concerns in counties' having no notice of administrative proceedings that could result in the allocation of additional costs to those counties, but did not address the underlying issue of the Department's authority to reallocate costs in the manner described. Judge Quattlebaum recommended that the Department issue a Final Order adopting the January 30, 2009, annual reconciliation for fiscal year 2007-2008. The Department adopted the recommendation and directed that "all successive reconciliations for that fiscal year shall be disregarded and expunged." In Hillsborough Cnty. v. Dep't of Juv. Just., Case No. 09-3546 (Fla. DOAH Feb. 26, 2010; Fla. Dep't of Juv. Just. Mar. 23, 2010) ("Hillsborough V"), the main issue was Hillsborough County's contention that the Department had unilaterally and without authority increased the counties' per diem rate for detention care. The undersigned found that the Department had abandoned the calculation of a per diem rate in light of the findings in Hillsborough I, and that the increased "per diem" rate alleged by the county was simply the result of the Department's recalculation of the counties' estimated costs in accordance with its own rule.7/ Fiscal year 2008-2009 assessments and reconciliation By letter dated June 3, 2008, the Department issued its calculation of the amounts due from each county for their estimated share of the predispositional detention costs for fiscal year 2008-2009, which would run from July 1, 2008, through June 30, 2009. As noted at Finding of Fact 19, supra, the predispositional budget was estimated at $99,583,854. The estimate was based on county utilization during the most recently completed fiscal year, 2006-2007, and the amount identified in the chapter 2008-152, Laws of Florida. The Department made the following estimates for the Counties' shares of predispositional days and costs: Days Percentage of Days Estimated Cost Miami-Dade 47,450 8.56% $8,522,140 Santa Rosa 5,213 0.94% $936,268 Alachua 10,957 1.98% $1,967,905 Orange 43,330 7.81% $7,782,177 Pinellas 32,627 5.88% $5,859,892 Escambia 15,044 2.71% $2,701,940 Hernando 2,978 0.54% $534,856 Broward 38,490 6.94% $6,912,901 City of Jacksonville8/ 28,957 5.22% $5,200,750 Bay 5,409 0.98% $971,470 Brevard 13,760 2.48% $2,471,331 Seminole 12,857 2.32% $2,309,150 Okaloosa 4,612 0.83% $828,327 Hillsborough 44,577 8.04% $8,006,142 43. The Counties incorporated the Department's estimate into their budgets and made monthly payments to the Department. By letter dated December 7, 2009, the Department issued its annual reconciliation for fiscal year 2008-2009. As noted above, the purpose of the annual reconcilation is to "reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." The annual reconcilation set forth the following as the "Actual Predispositional Days" and the "Share of Trust Fund Expenditures" for the Counties, along with the "Difference Debit/(Credit)" between the estimated sums already paid by the Counties and the amount set forth in the annual reconciliation. Those amounts were as Days follows: Percentage of Days Share of Trust Fund Miami-Dade 38,925 11.45% $10,926,117 Santa Rosa 2,555 0.75% $717,180 Alachua 5,511 1.62% $1,546,919 Orange 25,286 7.44% $7,097,695 Pinellas 19,218 5.65% $5,394,428 Escambia 6,734 1.98% $1,890,211 Hernando 1,383 0.41% $388,203 Broward 31,339 9.22% $8,796,752 City of Jacksonville 21,246 6.25% $5,963,681 Bay 3,824 1.13% $1,073,384 Brevard 10,598 3.12% $2,974,823 Seminole 8,944 2.63% $2,510,551 Okaloosa 3,613 1.06% $1,014,157 Hillsborough 27,120 7.98% $7,612,493 The Department's letter advised the counties as follows, in relevant part: . . . Any counties that have a debit amount owed will find enclosed with this correspondence an invoice for that amount. This amount is due by March 1, 2010. A credit amount . . . means the county overpaid based on their utilization and a credit invoice is enclosed with this correspondence. (If the credit amount is larger than the amount currently being paid by the county, the credit will be applied to future invoices until the credit is applied in total.) It is critical that all credits be taken prior to June 30, 2010. . . . (emphasis added). In comparing the estimated costs with the "Share of Trust Fund Expenditures," an untutored observer might expect a correlation between the absolute number of predisposition days and the money assessed by the Department. However, it is apparent that no such correlation was present in the Department's calculations. Dade County, for example, had 8,525 fewer actual predisposition days than the Department estimated at the outset of fiscal year 2008-2009, yet was assessed $2,403,976.89 in the annual reconciliation over and above the $8,522,140 in estimated payments that the county had already made over the course of the year. (For all 67 counties, the Department had estimated 538,836 predispositional days for the fiscal year. The actual number of predispositional days was 339,885.) The correlation, rather, was between a county's percentage of the total number of predispositional days and the money assessed. Though its actual number of days was less than estimated, Dade County's percentage of predispositional days was 2.89% higher than its estmated percentage. Therefore, the Department presented Dade County with an annual reconcilation assessment of $2.4 million. The correlation between percentage of days and the final assessment was caused by the Department's practice of treating the Shared Trust Fund appropriation of $95,404,5799/ as an amount that the Department was mandated to raise from the counties regardless of whether the counties' actual predisposition days bore any relation to the estimate made before the start of the fiscal year. At the final hearing, the Department's representatives made it clear that the Department believed that the Legislature required it to collect the full Shared Trust Fund appropriation from the counties. Reductions in actual usage by the counties would have no bearing on the amount of money to be collected by the Department. The Department views its duty as allocating costs among the counties, the "actual cost" being the Legislature's appropriation to the Shared Trust Fund. Beth Davis, the Department's Director of the Office of Program Accountability, testified that if all the counties together only had one predispositional secure detention day for the entire year, that day would cost the county in question $95 million.10/ In practice, the Department treated the Shared Trust Fund "appropriation" as an account payable by the counties. In this view, the appropriation is the Department's mandate for collecting the stated amount from the counties by the end of fiscal year 2008-2009, even while acknowledging that the Shared Trust Fund number in the General Appropriations Act was no more than an estimate based on the actual usage for the most recently completed fiscal year, which in this case was 2006-2007. Because the Department felt itself bound to collect from the counties the full amount of the Shared Trust Fund appropriation, any adjustment to one county's assessment would necessarily affect the assessments for some or all of the other counties. A downward adjustment in Orange County's assessment would not effect a reduction in the absolute number of dollars collected by the Department but would shift Orange County's reduced burden proportionally onto other counties. The Department has "tethered" the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009. Richard Herring is an attorney and longtime legislative employee, including 16 years as a deputy staff director to the House and Senate Appropriations Committees, and was accepted as an expert in the appropriations process. Mr. Herring was knowledgeable and persuasive as to the appropriations process and the circumstances surrounding the passage of the legislation at issue in this proceeding. Mr. Herring testified as to a "disconnect" in the way the Department treats the Shared Trust Fund program. The Shared Trust Fund appropriation is not an amount of money; rather, it is an authorization to spend money from that trust fund. Mr. Herring found that the Department mistakenly "treats appropriations almost as though it were a revenue-raising requirement." Mr. Herring could not think of any other example in which a state legislative appropriation mandates that another governmental entity such a county spend its own funds.11/ The Department allocates 100% of the Shared Trust Fund appropriation to the counties and collects that amount, even though section 985.686(5) limits the Department's collections to "actual costs." Mr. Herring clearly and correctly opined that the Appropriations Act cannot amend a substantive law on any subject other than appropriations. Therefore, the Department cannot rely on the appropriation made in chapter 2008-152, Laws of Florida, as authority for substituting the appropriated amount for the "actual costs" that the substantive statutory provision allows the Department to collect. Mr. Herring found that it is "a huge stretch to say an appropriation means that I will, no matter what, collect that amount of money." He concluded: [O]ther than this program, I'm not aware of any place in the budget where somebody takes an appropriated amount, where it's not another State agency involved, and tries to true up at the end of the year to make sure that every penny of that . . . authorization to expend, that the cash has come in to match the authorization. * * * Again, an appropriation is not an authorization to levy taxes, fees, fines. It's not an authorization to raise revenues, to collect revenues. It may provide, where there are double budgets between two agencies or within an agency, it may be authority to move money from one pot within the State treasury . . . to another. But to go out and extract money from someone who's not a State agency, who's not subject to receiving appropriation, I don't know any place else that we do that. And I can't come up with another example. Fiscal year 2008-2009 challenges In a letter to the counties dated January 26, 2010, Ms. Davis wrote as follows, in relevant part: I am writing this letter to ensure everyone understands the proper procedure for handling any challenges to the annual reconciliation data sent to you in December 2009 for FY 2008-09 and any future year's reconciliation. As a result of the State of Florida, division of Administrative Hearings (DOAH) challenge in case no. 09-4340 between Hillsborough County (Petitioner) and the Department of Juvenile Justice (Respondent), the reconciliation completed for FY 2008-09 is considered "final" and adjustments can only be made to the reconciliation using the following steps. Counties have 21 days from receipt of the reconciliation to file their challenges to the reconciliation with the Department. The Department will review the challenges and determine if any adjustments need to be made and which counties will be affected by those potential changes. All affected counties will be notified of the potential adjustments even if those counties did not submit a challenge. If challenges to the reconciliation cannot be resolved with the concurrence of all affected counties, the Department will file a request for a hearing with DOAH. Affected counties will be able to present their case regarding the adjustments at the hearing. . . . Florida Administrative Code Rule 63G-1.009 set forth the Department's dispute resolution process. It provided that the quarterly report "marks the point at which a county may take issue with the charges referenced in the report," but that such an objection was not a basis for withholding payment. All adjustments based on a county's objections to quarterly reports would be made in the annual reconciliation. Fla. Admin. Code R. 63G-1.009(1). Though the rule was silent as to counties' ability to file challenges or disputes to the annual reconciliation, the Department interpreted the rule as allowing such challenges. Twelve counties, Pasco, Sarasota, Brevard, Lee, Polk, Broward, Santa Rosa, Pinellas, St. Johns, Hillsborough, Hernando, and Miami-Dade, filed disputes using the form prescribed by the Department, providing specific reference to the disputed charges and setting forth specific charges for the Department to reconsider. The remaining counties did not file challenges to the annual reconciliation. At least some of these counties, including Orange, Alachua and Escambia, had already accepted their overpayment credit in the manner required by the Department's December 7, 2009 letter. See Finding of Fact 46, supra. The record contains letters that Ms. Davis sent to Broward, Hernando, Hillsborough, Pinellas, and Santa Rosa Counties on different dates in January and February 2010, but containing substantially the same text. The letter sent to the deputy director of Broward County's human resources department, dated February 19, 2010, is representative: The Department has received challenges to the 2008-2009 reconciliation from 12 counties, including your challenge. In keeping with the Final Order from DOAH case no. 09-4340 [Hillsborough IV] the Department is evaluating all of the challenged assessments. If the Department determines there are any adjustments that need to be made, we will attempt to reach agreement with all of the counties affected by the changes. However, if we cannot reach agreement, the Department will combine all of the challenges and request an administrative hearing from the DOAH at which all of the issues can be resolved. Because of the number of challenges involved, and time constraints in working on next year's budget, we anticipate the review process taking about 30 days. This time period exceeds the general requirement for referring challenges to DOAH for those counties that have requested an administrative review. We are asking that the counties seeking administrative review will allow the Department additional time. If after the review it is necessary to proceed with an administrative hearing, we will notify all potentially affected counties so that one final resolution can be reached in a timely manner. The Department reviewed the disputes filed by eleven of the twelve counties. In reviewing the disputes, the Department looked only at challenges to specific cases and did not consider broader policy disputes raised by the counties. Ms. Davis testified that Miami-Dade's dispute was not reviewed because Miami-Dade failed to include specific individual records. Ms. Davis stated that Miami-Dade was making a conceptual challenge not contemplated by rule 63G-1.009. Barbara Campbell, the Department's data integrity officer, testified that she reviewed every record that was disputed by a county. Ms. Campbell stated that her review for Hillsborough County alone took about a month. Hillsborough County disputed 50,528 days in 6,963 entries for the following reasons: adults in juvenile status (493 days), charges not disposed (22,495 days), invalid disposition end date (5 days), non-adjudicatory charges (2,987 days), extended period of detention (763 days), invalid zip code (352 days), invalid address (63 days), out of county (88 days), institutional address (1,560 days), escape after disposition (78 days), guardian (21,552 days), transfer after adjudication (45 days), no criminal charge (13 days), and duplicated entry (34 days). Ms. Campbell concluded that Hillsborough County should remain responsible for 45,873 of the rejected 50,528 days. Despite Ms. Campbell's conclusion, the annual reconciliation assessed Hillsborough County for only 27,120 days. This discrepancy was not explained at the hearing. Ms. Campbell testified that one of the corrections she made for Hillsborough County related to the waiting list for placement of juveniles in committed status. At that time, the waiting list was used to determine the commitment date for billing purposes, but Ms. Campbell found that the list contained commitment dates that were several days after the actual commitment dates. This error resulted in a substantial number of extra days being billed to Hillsborough County.12/ Ms. Campbell testified that this sizable error as to Hillsborough County did not prompt a review of the records of all counties to determine if the error was across the board. The Department lacked the time and manpower to perform such a review for all counties. The Department was already stretched thin in reviewing the specific challenges made by the counties. In a letter to the counties dated March 23, 2010, Ms. Davis wrote as follows, in pertinent part: The Department has concluded it [sic] analysis of challenges submitted by counties for the 2008-09 final reconciliation for detention utilization. A total of twelve counties submitted challenges. After reviewing all the data, resulting adjustments affect a total of 45 counties, ten of which are fiscally constrained. Enclosed with this letter is a document outlining the specifics regarding adjustments as they pertain to your county. For counties that filed a challenge with the Department, each type of dispute category is addressed. Counties subsequently affected by the original twelve counties' challenges are impacted by either address corrections and/or as a result of their percentage of the total utilization being changed by adjustments made. An adjustment to a county's percentage of utilization occurs when days challenged are subsequently found to be the responsibility of the State or another county. Changes made based on address corrections are listed on the enclosed disc, if applicable to your county. Each county is asked to review the adjustments and respond back to the Department indicating agreement or disagreement with the findings. If a county has issue with the proposed adjustments they will need to file a petition with the Department to initiate proceedings with the Division of Administrative Hearings pursuant to 28-106-201 [sic] Florida Administrative Code. For the few counties that have already filed a petition with the Department, still complete the attached form and return to the Department but an additional petition is not required. Responses from the counties must be postmarked by April 9, 2010. . . . Ms. Davis' March 23, 2010, letter was the first notice given to non-disputing counties by the Department that twelve counties had filed disputes to the annual reconciliation. Thus, counties that believed they had closed their ledgers on fiscal year 2008-2009 were forced to reopen their books to deal with the Department's "adjustments" to the amounts of their final annual reconciliations. Attached to the letter was a spreadsheet containing the "08-09 Pending Challenge Adjustments" containing the following information for the Counties: Adjusted Adjusted Days Percentage Share of Trust Fund Miami-Dade 38,944 11.77% $11,229,123 Santa Rosa 1,980 0.60% $570,914 Alachua 5,581 1.67% $1,589,043 Orange 27,048 8.17% $7,799,027 Pinellas 15,523 4.69% $4,475,906 Escambia 6,734 2.04% $1,941,683 Hernando 1,327 0.40% $382,628 Broward 31,231 9.44% $9,005,154 City of Jacksonville 21,300 6.44% $6,141,647 Bay 3,830 1.16% $1,104,343 Brevard 8,816 2.66% $2,542,008 Seminole 8,965 2.71% $2,584,970 Okaloosa 3,613 1.09% $1,041,773 Hillsborough 22,465 6.79% $6,477,564 72. In addition to making adjustments to the accounts of the challenging counties, the Department modified the amounts set forth in the annual reconciliation for all 38 non-fiscally constrained counties.13/ A total of 9,010 days were reclassified as post-dispositional and therefore shifted from the counties' to the Department's side of the ledger. This shift did nothing to lessen the overall burden on the counties in terms of absolute dollars because the overall amount the Department intended to collect remained $95,404,579. Of the twelve counties that challenged the annual reconciliation, five did not contest the Department's adjustment and are not parties to this proceeding: Pasco, Sarasota, Lee, Polk, and St. Johns. The record does not indicate whether these counties notified the Department that they accepted the adjustment. Four counties that challenged the annual reconciliation, and are parties to this proceeding, notified the Department that they accepted the adjustment: Pinellas, Brevard, Hillsborough, and Santa Rosa. However, because all affected counties did not accept the adjustments, the Department did not refund monies to the counties that were awarded a credit by the adjustment. In correspondence with Pinellas County's Timothy Burns, Ms. Davis stated that the credit set forth in the adjustment would not be applied to the county's account "until the final decisions from the DOAH hearing." At the hearing, Ms. Davis explained the Department's action as follows: Each county's utilization is considered a percentage of the total utilization and that percentage is multiplied by the expenditures. So if you change one number in that mathematical calculation, it has a rippling effect and will affect the other-- in this case it's 45 counties. So all of the counties had to accept those changes and agree to the modifications, those pending adjustments, if we were going to modify the reconciliation, the agency's final action. To restate, the following are the estimates, the annual reconciliation each County: amounts, and the adjustment amounts for Miami-Dade: 47,450 8.56% $8,522,140 38,925 11.45% $10,926,117 38,944 11.77% $11,229,123 Santa Rosa: 5,213 0.94% $936,268 2,555 0.75% $717,180 1,980 0.60% $570,914 Alachua: 10,957 1.98% $1,967,905 5,511 1.62% $1,546,919 5,581 1.67% $1,589,043 Orange 43,330 7.81% $7,782,177 25,286 7.44% $7,097,695 27,048 8.17% $7,799,027 Pinellas 32,627 5.88% $5,859,892 19,218 5.65% $5,394,428 15,523 4.69% $4,475,906 Escambia 15,044 2.71% $2,701,940 6,734 1.98% $1,890,211 6,734 2.04% $1,941,683 Hernando 2,978 0.54% $534,856 1,383 0.41% $388,203 1,327 0.40% $382,628 Broward 38,490 6.94% $6,912,901 31,339 9.22% $8,796,752 31,231 9.44% $9,005,154 City of Jacksonville 28,957 5.22% $5,200,750 21,246 6.25% $5,963,681 21,300 6.44% $6,141,647 Bay 5,409 0.98% $971,470 3,824 1.13% $1,073,384 3,830 1.16% $1,104,343 Brevard 13,760 2.48% $2,471,331 10,598 3.12% $2,974,823 8,816 2.66% $2,542,008 Seminole 12,857 2.32% $2,309,150 8,944 2.63% $2,510,551 8,965 2.71% $2,584,970 Okaloosa 4,612 0.83% $828,327 3,613 1.06% $1,014,157 3,613 1.09% $1,041,773 Hillsborough 44,577 8.04% $8,006,142 27,120 7.98% $7,612,493 22,465 77. Overall, the 6.79% Department $6,477,564 had estimated there would be 538,836 predisposition utilization days for all counties. The actual number of predisposition days indicated in the annual reconciliation was 339,885, some 198,951 fewer days than estimated. The number of actual days was further decreased to 330,875 in the Department's March 23, 2010, adjustment. Nonetheless, the absolute number of dollars assessed by the Department against the counties remained unchanged because the only variable in the Department's formula for ascertaining a county's "actual costs" was the county's percentage of the total number of predisposition days. The $95 million set forth in the General Appropriations Act for the Shared Trust Fund remained unchanged. Thus, even if a county's actual number of predisposition days was several thousand fewer than the Department originally estimated, the county's assessment could be higher than the estimate because that lesser number of days constituted a higher percentage of the overall number of predisposition days. The City of Jacksonville, for example, was found by the adjustment to owe $940,897 more than the original estimate despite having actual usage that was 7,657 days fewer than the original estimate. The Counties forcefully argue that Department's use of the General Appropriations Act as a substitute for calculating the counties' actual costs results in a gross disparity between the amounts per day paid by the state and those paid by the Counties for the same services at the same facilities, echoing the argument made by Hillsborough County in Hillsborough V. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: Q. But in terms of the actual cost of detention, there's no difference in the cost of a predisposition detention day and a post-disposition detention day? A. None. They receive the same services: food, clothing, supervision, mental health, medical, all of those issues. Every youth receives the same services in detention. Ms. Davis testified that the General Appropriations Act provided the Department with General Revenue sufficient to cover roughly 20% of the cost of all secure detention.14/ Ms. Davis conceded that approximately 38% of the secure detention utilization days were post-disposition days that were the Department's responsibility. She further conceded that through the Shared Trust Fund the counties are paying the 18% difference for the state's portion of secure detention. Evidence introduced at the hearing established a downward trend in the use of predisposition detention utilization since fiscal year 2005-2006, but no corresponding decrease in the amount that the counties pay for detention services. Mr. Herring, the appropriations expert, testified that as a result of the manner in which the Department allocates costs, counties pay approximately $284 per day for detention services, whereas the state pays only $127 per day. Mr. Burns, bureau director of Pinellas County's Department of Justice and Consumer Services, calculated that an average per diem rate for all detention days, predisposition and post-disposition, would be $229.56. Ms. Davis testified that if the utilization ratio and the budget ratio were the same--in other words, if the Legislature fully funded the state's share of detention services--then the per diem rates for the counties and the Department would be almost the same. Despite the fact that the counties were partially subsidizing the state's share of secure detention for juveniles, the Department nonetheless reverted $9,975,999 of unspent General Revenue funds back to the state's general revenue in fiscal year 2008-2009. Of that amount, approximately $874,000 had been appropriated for secure detention. Section 985.686(3) requires the counties to pay the costs of providing detention care for juveniles prior to final court disposition, "exclusive of the costs of any pre- adjudicatory nonmedical educational or therapeutic services and $2.5 million provided for additional medical and mental health care at the detention centers." (Emphasis added). The underscored language was added to the statute by section 11, chapter 2007-73, Laws of Florida, the appropriations implementing bill for fiscal year 2007-2008. Vickie Joan Harris, the Department's budget director, testified that the Legislature appropriated an additional $2.5 million for medical and mental health care in 2007-2008, but that no additional money has been appropriated for those services since that fiscal year. For fiscal year 2008-2009, the counties shared these costs with the Department. The Counties are correct in pointing out that the cost of a utilization "day" is the same whether it occurs predisposition or post-disposition, and their desire for a per diem basis of accounting is understandable from a fiscal planning perspective. If the Department announced a per diem rate at the start of the fiscal year, then a county could roughly calculate its year-end assessment for itself without the sticker shock that appears to accompany the annual reconciliation. However, there are two obstacles to such an accounting method, one practical, one the product of the Department's purported understanding of the term "actual cost" as used in section 985.686(5). The practical objection is that the actual cost of maintaining and operating the Department's secure detention system is not strictly related to the number of days that juveniles spend in detention facilities. Robert M. Dunn, the Department's director of policy development for detention services, testified as follows: For whatever reasons, detention population has decreased significantly over the last few years. However, we have to maintain the capability of providing adequate and proper services for 2,007 beds. In our system, we do not staff centers based on the number of beds or the number of youth who are in the center. We typically follow a critical post staffing process. We know that within center, there are certain posts that have to be manned 24/7, such as intake. We have to be able to provide staff to perform intake duty should a youth be delivered to the center for detention. We have to provide someone in our master control unit 24/7. Those people are responsible for outside communications, directing staff to where they are needed within the center, answering the phones inside the center for requests for assistance, monitoring the camera system to provide assistance. So that position, that post has to be staffed 24/7, whether we have one kid in the center or 100 kids. It's irrelevant. Mr. Dunn went on to describe many other fixed costs of operating a secure detention facility for juveniles. He also discussed the Department's ongoing efforts to identify redundant facilities and streamline the program in light of falling usage, but the point remains that the Department's actual costs do not fluctuate significantly due to usage. Simply keeping the doors open carries certain costs whether one child or 100 children come into the facility, and a pure per diem assessment approach might not cover those costs. While the evidence establishes that there is a significant degree of county subsidization of the state's share of juvenile detention costs, there is a lack of credible evidence that a pure per diem approach would capture a given county's "actual costs" in keeping with the mandate of section 985.686.15/ It is apparent that the Counties have seized on the per diem concept not merely because it was the measure used by the Department prior to Hillsborough I, but because the system used for fiscal year 2008-2009 gave the Counties no way to even roughly predict their annual expenses for predisposition secure juvenile detention. At the start of the fiscal year, a non-fiscally constrained county received an estimate of its predisposition days and its estimated portion of the Shared Trust Fund. The county made monthly payments based on those estimates. As the year progressed, it became apparent to the county that its actual usage was proving to be far less than the estimate. The annual reconciliation confirmed that the county had fewer predisposition days than the Department had estimated, which led the county to expect a refund. In defiance of that expectation, the county was presented with a bill for additional assessments. In the case of Miami-Dade and Broward Counties, the additional bill was for millions of dollars despite the fact that their actual usage was several thousand days fewer than the Department's estimate. The Counties were, not unreasonably, perplexed by this turn of events. This perceived anomaly points to the second obstacle to the Counties' proposed per diem accounting method: the Department's working definition of "actual costs" is unrelated to anything like a common understanding of the term "actual costs." It is a fiction that renders nugatory any effort by the Counties to limit their assessed contributions to the Shared Trust Fund to the money that was actually spent during the fiscal year. As to fiscal year 2008-2009, the Department simply made no effort to ascertain the counties' actual costs or, if it did, it failed to disclose them to the counties. "One of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the Legislature." City of Venice v. Van Dyke, 46 So. 3d 115, 116 (Fla. 1st DCA 2010), citing Reform Party of Fla. v. Black, 885 So. 2d 303, 312 (Fla. 2004). The Legislature did not define the term "actual cost" in section 985.686. "Actual cost" is not a term of art.16/ The Florida Statutes are replete with uses of the term "actual cost" that rely on the common meaning of the words and do not attempt further definition.17/ Those few sections that do provide definitions of "actual cost" indicate that the Legislature is capable of limiting that common term when appropriate to its purposes.18/ Nothing in Section 985.686 gives any indication that the Legislature intended the words "actual costs" to carry anything other than their plain and ordinary meaning. By statute, the Department is obligated to reconcile "any difference between the estimated costs and actual costs . . . at the end of the state fiscal year." § 985.686(5), Fla. Stat. By rule, this reconciliation is to be performed on a county by county basis: On or before January 31 of each year, the Department shall provide a reconciliation statement to each paying county. The statement shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period. Fla. Admin. Code R. 63G-1.008(1). Nothing in the statute or the implementing rules authorizes the Department to base its annual reconciliation on the anything other than actual costs. Section 985.686(5) speaks in terms of the individual county, not in terms of "counties" as a collective entity. Rule 63G-1.008(1) states that the Department will provide a reconciliation statement to "each paying county." That statement must reflect the difference between the estmated costs "paid by the county during the past fiscal year and the actual cost of the county's usage during that period." Like the statute, the rule speaks in terms of the individual county; the rule does not purport to authorize the Department to treat the 67 counties as a collective entity. Neither the statute nor the rule supports the rationale that the Shared Trust Fund liability of one county should in any way depend upon the costs incurred by any other county. At the end of the fiscal year, the amount collected in the Shared Trust Fund should be no more or less than the amounts of the counties' actual costs. Nothing in the statute or the implementing rules authorizes the Department to tether the counties together with the collective responsibility to pay $95,404,579 for fiscal year 2008-2009, as opposed to paying a reconciled amount based on each county's actual costs of providing predisposition secure detention services for juveniles within its jurisdiction.19/ Nothing in the statute or the implementing rules has changed in such a way as to vitiate Judge Quattlebaum's conclusion in Hillsborough IV that "the annual reconciliation statement issued pursuant to the rule is final unless successfully challenged in an administrative proceeding" pursuant to section 120.569, Florida Statutes. See Finding of Fact 37, supra. Therefore, the December 7, 2009, annual reconciliation constituted final agency action as to all counties that did not contest the reconciliation in accordance with the Department's January 26, 2010, letter. The Department did not have the statutory authority to recalculate the amounts set forth in that annual reconciliation for the 55 counties that did not file challenges.20/ As regards the parties to this proceeding, the following Counties did not contest the December 7, 2009, annual reconciliation: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa. As to these Counties, the annual reconciliation should have constituted final agency action and spared them further involvement in litigation. The amounts set forth for these Counties in the annual reconciliation should be reinstated and their accounts reconciled on that basis, as follows: Reconciled Share of Trust Fund Alachua $1,546,919 Orange $7,097,695 Escambia $1,890,211 City of Jacksonville $5,963,681 Bay $1,073,384 Seminole $2,510,551 Okaloosa $1,014,157 105. The following Counties did contest the reconcilation pursuant to the Department's January 26, 2010, letter: Brevard, Broward, Santa Rosa, Pinellas, Hillsborough, Hernando, and Miami-Dade. By letter dated March 23, 2010, the Department informed all 67 counties that it had completed its analysis of the challenges21/ submitted by 12 counties and was instituting adjustments to the accounts of 45 counties, including 10 that were fiscally constrained. For the reasons stated above, the March 23, 2010, adjustment was effective only as to the 12 counties that challenged the annual reconciliation. Of those 12, seven are parties to this litigation. Of the seven Counties, four accepted the adjustment announced by the March 23, 2010, letter: Pinellas, Brevard, Hillsborough, and Santa Rosa.22/ As to these four Counties, the Department's March 23, 2010, adjustment letter should have ripened into final agency action without need for further litigation.23/ The amounts set forth for these counties in the adjustment letter should be reinstated and their accounts reconciled on that basis, as follows:24/ Share of Trust Fund Santa Rosa $570,914 Pinellas $4,475,906 Brevard $2,542,008 Hillsborough $6,477,564 To this point, the resolution of the amounts owed has been based on the simple principle of administrative finality as to 10 of the Counties that are parties to this proceeding: proposed agency action that is accepted, affirmatively or tacitly, by a party becomes final agency action as to that party and as to the agency upon the expiration of the time for requesting an administrative hearing. However, there remain three Counties that challenged the annual reconciliation, contested the later adjustment, and continue to assert their statutory right to be assessed only the "actual costs" associated with predisposition secure detention: Hernando, Miami-Dade, and Broward. During the course of this litigation, some of the parties asked the Department to perform an alternative calculation of the fiscal year 2008-2009 reconciled amounts. In an email dated January 12, 2011, the Department transmitted to the Counties a speadsheet that the Department titled "2008/2009 Secure Detention Cost Sharing Data Analysis," taking care to point out that the document was "not an amended or revised reconciliation."25/ Several Counties, including the three whose contributions to the Shared Trust Fund remain unresolved, have urged this tribunal to adopt this most recent analysis as the most accurate available measure of their pre-disposition detention days and actual costs of detention. In its Proposed Recommended Order, the Department also argues that it should be allowed to employ this "more accurate methodology" to amend the annual reconciliation as to all counties. Ms. Campbell, the Department's data integrity officer, testified as to several changes in programming that are reflected in the results of the January 12 analysis. The dispositive change for purposes of this order is that the analysis was performed in accordance with the Department's new rule 63G-1.011(2), which provides: "Commitment" means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation. Ms. Campbell stated that in previous reconciliations and adjustments, the Department stopped billing the counties at the point a final disposition was given by the court. Under the new rule, the Department would continue billing the counties if the disposition did not result in the child's commitment to the Department. Florida Administrative Code Rule 63G-1.011 became effective on July 6, 2010, well after the close of fiscal year 2008-2009 and well after the Department's annual reconciliation and adjustments for that fiscal year were performed. Aside from the increased accuracy claimed by the Department, no ground has been cited for its retroactive application in this case. Further, rule 63G-1.011 has recently been found an invalid exercise of delegated legislative authority on the precise ground that its narrow definition of "commitment" is in conflict with section 985.686(5), Florida Statutes, which limits the counties' responsibility to "the period of time prior to final court disposition." Okaloosa Cnty. et al. v. Dep't of Juv. Just., Case No. 12-0891RX (Fla. DOAH July 17, 2012).26/ In other words, the Department's prior practice was more in keeping with its statutory mandate than was the "correction" enacted by rule 63G-1.011. In fairness to the Department, it should be noted that its revised definition of commitment was at least partly an outcome of Hillsborough III. In that decision, Judge Quattlebaum concluded, "The [Department] has no responsibility for the expenses of detention related to juveniles who were not committed to the [Department]'s care and supervision. Nothing in the statute or the previous Final Orders indicates otherwise." Hillsborough III at ¶ 13. On this point, however, Hillsborough III adopts the position of the Department that was not seriously challenged.27/ However, section 985.686(3) requires the county to pay "the costs of providing detention care... for the period of time prior to final court disposition." The statute does not state that "final court disposition" is equivalent to "commitment to the Department."28/ Okaloosa County provides a more comprehensive analysis statute: the Department is responsible for the expenses of all post-disposition detention, not merely detention of juveniles who are committed to the Department. The evidence in the instant case made it clear that probation is another post- disposition outcome that may result in detention, and that the Department has made a practice of charging the counties for detentions related to this disposition. Judge Anthony H. Johnson, the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit, testified as to the procedures that a circuit court follows after the arrest of a juvenile charged with delinquency: Okay, we'll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are . . . detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it's regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That's also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it's possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past the 21 days. That's relatively unusual. It's usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they're found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—- there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It's really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it's the judge, but it's not really.29/ And that decision is made—- is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention-- let me not say scores. If it's a level eight or above, then the child will remain detained. If it's not that, the child will be released and told to go home on home detention awaiting placement. Here's where things get, I think, probably for your purposes, a bit complex. Let's say at the disposition, the child-- the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child's on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I'm going to handle this by holding the child in contempt for disobeying the court's order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Judge Johnson testified that "by definition, anything after the disposition hearing would be post-disposition." He went on to explain: You know, the problem here, I think, is we have a couple of different dispositions. We have one disposition that's the initial disposition. And if the child is put on probation, and then violates the probation, then you have a whole other hearing as to whether or not there was a violation of probation. And, if so, you have a whole new disposition hearing as to what the sanction ought to be for violation of probation. The probation issue was a key point of contention between the Counties and the Department. The Department does not consider itself responsible for detentions of juveniles who been given a disposition of probation. Thus, when a juvenile is picked up for a violation of probation, the Department considers that detention to be "pre-disposition" and chargeable to the county. The Counties contend, more consistently with section 985.686(3), that probation is a consequence of "final court disposition," and any subsequent detentions arising from violation of probation should be considered post-disposition and paid by the Department. Aside from the legal barriers, there are practical considerations that render the January 12, 2011, analysis unsuitable as a measure of the Counties' actual costs. Ms. Davis testified that the analysis is "a little deceiving because it only includes an analysis based on commitment." She noted that the analysis did not take into account the adjustments that had been made in light of the twelve counties' challenges to the annual reconciliation. Ms. Davis stated: "We simply ran an analysis per the request of the counties as to what the days would be based on commitment only, using our new programming that we do today. . . [W]e couldn’t submit it as a reconciliation because it's not correct. There are some address errors. We didn't fix those." Ms. Davis testified that the Department never had any intention that the January 12 analysis should be considered a reconciliation. The programming and the data set had changed since the annual reconciliation. The information in the analysis was not the same information that was analyzed in the reconciliation. Comparing the reconciliation to this analysis would be "apples to oranges" in many respects, according to Ms. Davis. Based on the foregoing, it is found that the January 12, 2011, analysis does not establish the "actual costs" of the remaining counties and is not an accurate basis for settling their final accounts for fiscal year 2008-2009. It is further found that, because the Department has never attempted to ascertain the Counties' actual costs and provided no such data to this tribunal, the record of this proceeding offers insufficient evidence to establish the actual costs for secure juvenile detention care for fiscal year 2008- 2009 for Hernando, Miami-Dade, and Broward Counties. The Department conceded that its annual reconciliation and the adjustment thereto were based on inaccurate data and included significant errors. The January 12, 2011, analysis was based on a definition of "commitment" that has since been found in derogation of section 985.686(5), Florida Statutes. None of the analyses performed by the Department went beyond the calculation of the number of detention days to the calculation of any county's actual costs of providing detention care. The Department bears the burden of providing a reconciliation to each of these three counties that reflects their actual costs of providing secure juvenile detention care. Hernando, Miami-Dade, and Broward Counties are each entitled to an accounting of their actual costs without regard to the costs of any other county.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that: Reinstates the amounts set forth in the Department's December 7, 2009, annual reconciliation letter for the following Counties: Alachua, Orange, Escambia, City of Jacksonville, Bay, Seminole, and Okaloosa; Reinstates the amounts set forth in the Department's March 23, 2010, adjustment letter for the following Counties: Pinellas, Brevard, Hillsborough, and Santa Rosa; and Provides that the Department will, without undue delay, provide a revised assessment that states the actual costs of providing predisposition secure juvenile detention care for fiscal year 2008-2009 for the following Counties: Hernando, Miami-Dade, and Broward. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2012.
The Issue The issue to be determined is whether the specifications for Request for Proposals number FDC RFP-17-108, “Community Release Center (CRC) in Orange County, Florida,” are contrary to the governing statutes, rules or policies of the Florida Department of Corrections (the Department or DOC).
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: Petitioner is a vendor that currently holds contracts with the Department to provide work-release beds and transitional work-release beds throughout the state of Florida and holds a contract providing these services in Orange County, Florida. Its Orange County facility is referred to in this proceeding as Orlando Bridges and qualifies as a community release center. Bridges is a vendor who would, potentially, bid on the request for proposal at issue in this case. Petitioner has standing to challenge the specifications of RFP-17-108, and there is no dispute that Petitioner timely filed its notice of intent to protest the specifications; timely filed a formal written protest; and timely filed the required protest bond. On August 11, 2016, the Department issued FDC RFP-17- 108, “Community Release Center (CRC) in Orange County, Florida.” A community release center is defined by Florida Administrative Code Rule 33-601.602(1)(n) as “a correctional or contracted facility that houses community custody inmates participating in a community release program.” The RFP seeks proposals from vendors to provide: A facility located in Orange County, Florida, with qualified staff to deliver a Community Release Center (CRC) for male inmates. Services will include operation of each facility, security, supervision, housing, care, meals, employability skills, licensed substance abuse outpatient and after care services, cognitive-behavioral interventions, parenting, family reunification, anger management, mentoring, budgeting, victim awareness and related transition services to enhance the inmate’s successful reintegration back into society. The Department intends to award one contract in Orange County for up to seventy-five (75) male beds. The number of awarded beds will be determined by the Department based on the Vendor’s response to this RFP. The Department reserves the right to increase or decrease the bed allocation based on the Department’s need, and the appropriation of funds. The contract currently held by Bridges for its Orlando Bridges facility, Contract #C2489, was executed in 2008, and has been renewed and extended a number of times. It is scheduled to expire December 31, 2016. Under the current contract, Bridges provides up to 54 work release beds and up to 84 substance-abuse treatment transition beds (transition beds). The Department currently pays, on average, $21 per day, per inmate, for work- release beds. It pays an average of $52 per day for transition beds. Orlando Bridges also holds other contracts with the Department: according to Petitioner, it has slightly under 400 inmates currently, with 134 beds under Contract #C2489; 100 beds under a probation diversion program; and the remainder under other work-release programs. The difference in cost between transition beds and work- release beds reflects the difference in services currently provided. For transition beds, inmates are placed at a facility, such as the Orlando Bridges campus, which operates as a modified therapeutic community. Depending on the terms of the governing contract, the facility can either be provided by the vendor, as is the case with Orlando Bridges, or can be a Department-owned facility operated by a private vendor. The inmates assigned to transition beds receive intensive therapeutic services, including education, substance-abuse treatment, vocational training, employment and re-entry assistance, depending on the individual inmate’s needs. The inmate focuses on treatment during this portion of the program. Once the treatment portion of the program is completed, inmates are transferred to work-release beds, where the goal is obtaining and maintaining work-release employment. Inmates receive some additional treatment while in work-release beds, but the focus is on employment. Orlando Bridges is a 15-acre campus that could house up to 400 inmates. It is not a secure facility: it does not have a secured perimeter and does not have armed guards. Under Contract #C2489, Orlando Bridges is assigned a “parent institution,” which is located in the same geographic area and provides oversight and limited classification services to Orlando Bridges. The contract also provides for the transportation of inmates in the event that medical care is needed, because medical services are not included within the scope of the contract. Contract #C2489 also delineates the process to be used should an inmate be terminated from the program or released from custody. Specifically, Contract #C2489 provides: Termination from the Work Release/Program Center All behavior problems, escapes, disciplinary problems, unusual incidents, special medical issues and requests for inmates to be removed from the program shall be reported to the OIC of the parent institution. The Department is responsible for terminating inmates from the Substance Abuse Transitional/Work Release (Re-entry) Program Center. An inmate may be terminated and returned to the physical custody of the Department from the Substance Abuse Transitional/Work Release Program Center when it has been determined that to do so is in the best interests of the Department, the Substance Abuse Transitional/Work Release (Re-entry) Program Center, and/or the inmate or for any other compelling reason related to public safety. Pursuant to this Contract and Department Policy, the Warden of the parent institution or other Department staff is authorized to approve an inmate’s termination from the Transitional Work Release/Program Center. If it becomes necessary to terminate an inmate from the program, Department staff or other law enforcement staff shall assume physical custody of the inmate and transport the inmate to an appropriate facility. . . . Release of Inmates from the Custody of the Department of Corrections All inmates placed by the Department into the Contractor’s Substance Abuse Transitional/Work Release (Re-entry) Center shall remain in the Substance Abuse Transitional/Work Release (Re-entry) Program Center program until their sentence of incarceration is completed, or until returned to the Department’s custody by reason of termination from the Substance Abuse Transitional/Work Release (Re-entry) Program Center program. (emphasis added). The Department currently has contracts for five facilities providing transition beds like those provided under Contract #C2489. The Department also has contracts that provide only for work-release beds, and has contracts of this type with Petitioner. For example, Turning Point in Broward County is a contract for 99 work-release beds and is a Bridges-owned facility. RFP-17-108 seeks proposals for work-release beds only, although 21 more than are currently provided through Contract #C2489. The Department is not seeking transition beds, with their more intensive treatment component, as a part of this RFP. As a result, should Bridges choose to bid on this RFP, it would provide services for 63 fewer beds than it provides under the current contract, at an intensity level that is higher than the current work-release beds and lower than the current transition beds. While the RFP seeks proposals for work-release beds as opposed to transition beds, there are some similarities between the RFP and the current contract because both deal with services provided at a community release center. For example, the RFP specifies that there will be a correctional institution that will be designated as a parent institution to provide oversight and limited classification services, and has many of the same provisions with respect to licensure, facilities, staffing and oversight. The RFP requires the vendor to provide job development, placement, and retention services, as did previously issued contracts providing for work-release beds. However, the RFP also requires bidders to provide readiness programs and services to address individual criminogenic needs of the inmate, such as development of independent living skills and economic self- sufficiency; mentoring; budgeting; anger management; cognitive- behavioral interventions; educational and literacy skills development; parenting; family reunification; life skills; victim awareness; and outpatient and aftercare substance-abuse services. Similar to Contract #C2489, there are provisions within the RFP that refer to inmates being “returned to the physical custody of the Department.” See, for example, sections 2.8.1 (Facility Intake) and 2.11.1.14 (Inmate Termination from the CRC). RFP-17-108 is an initial step in a change of focus for the Department when it comes to providing substance-abuse treatment and work-release services to inmates. The overall vision is identified in Joint Exhibit 3, a document entitled “Timing of Effective Intervention.” Joint Exhibit 3 is a document prepared by Maggie Agerton at the request of her supervisor, Abraham Uccello, to address how best to use the Department’s existing resources to provide the greatest amount of treatment to the most inmates. It is an internal document that has not been formalized. Mr. Uccello, who requested that the document be prepared, described Joint Exhibit 3 as a work product document and did not know what the final version would look like. Department staff testified that the Department is looking at a new approach to providing work-release and substance- abuse services, because as a result of inmate classifications based upon the nature of the offenses committed, only nine percent of the inmate population qualifies for placement in the community.1/ The Department has a budget of approximately $27 million devoted to contracted substance-abuse treatment. Of that $27 million, approximately $15,489,548 (57%) of the budget is currently allocated for 688 transition beds statewide. Work- release slots with related treatment represent $789,927 of the budget. The remainder of the budget ($10,933,333) is used to serve the needs of the remaining 91% of the inmate population. The Department’s concern is that more resources should be used to treat moderate to high-risk inmates, because best practices studies show that these inmates are the one that most need the services to reduce recidivism. The Department’s data indicates that approximately 62% of the inmate population have an identified need for substance-abuse treatment, and under the current model, a significant percentage of the inmates with an identified need is being untreated. In light of these concerns, the Department intends to move some, but not all, of its substance-abuse treatment “behind the fence” (i.e., in secured institutions) in order to reach a greater number of inmates. It also seeks to expand the number of work-release slots, with a “substance-abuse treatment overlay” for those expanded slots. As described in Joint Exhibit 3, the proposed approach is to provide as much intervention as possible while the inmate is housed in a secure facility; to require inmates mandated for substance-abuse treatment to receive it prior to being placed in work release; to use work release as a “privilege and incentive for hard work in core programming and readying oneself for release”; and to consider work release as the final transitional step between readiness and community transition. The primary focus of work release would be to obtain and maintain paid employment. Participants, however, would be given the opportunity to complete any domain programming that was not completed at the secure facility. To that end, Joint Exhibit 3 identified requirements from prior requests for proposals and added some additional requirements for the work-release beds they would be seeking. The working document provides: In previous solicitations, proposers were required to provide, at a minimum: A facility/site which provides housing in a clean, safe environment; Sufficient qualified staff to operate the facility and programs; Three (3) nutritious, balanced meals per day prepared on site and/or including preparation of sack lunches for inmates employed away from the CRC during scheduled meal times (if the meal cannot be consumed on site for these inmates); Job development, job placement and job retention services; Access to transportation as required by Department rules and regulations; Personal financial management instructions; and Licensed outpatient substance abuse treatment, intervention, and aftercare. In the current solicitation, the proposer must also provide readiness programs and services to address individual criminogenic needs of the participants. These services are intended to facilitate successful reintegration in the community upon completion of incarceration through development of independent living skills and economic self-sufficiency gained through meaningful employment. These include: Cognitive-behavioral interventions; Parenting; Family reunification; Anger management; Mentoring, budgeting; Victim awareness; Compass 100; and Related transition services and referrals. Readiness programming is based on individual needs and will be provided in instances where the participant did not receive the required level of service prior to placement at the CRC. The terms of the RFP are consistent with the approach outlined in Joint Exhibit 3. RFP-17-108 has no per diem rate specified that proposers are required to meet. The Department has left the cost open so that it can determine whether this approach is financially feasible. If a vendor believes that there are extra costs to run a facility as bid, the vendor can include those costs in the price it submits. If all bids come back too high, the Department will have to determine whether they can afford this approach. The stated intention of the Department is, as current contracts for transition beds expire over the course of the next four years, the contracts will be allowed to expire or will perhaps not be renewed. No existing contract is being terminated. The goal is to replace the 688 transition beds with expanded work- release beds in the community. While substance abuse would then, for the most part, be provided behind the fence, even if the strategy is characterized as “moving” these 688 beds, the move would affect approximately .6 percent of the Department’s current prison population. Like all state agencies, the ability for the Department to implement programs depends upon the Legislature’s willingness to fund them. Petitioner contends that the Department is not free to pull back transition beds and move substance abuse treatment and more intense therapy behind the fence, because of a proviso in the Department’s budget. To support this contention, they point to a section of the Department’s budget from the General Appropriations Act (GAA) for 2016, House Bill 5001, submitted as Joint Exhibit 17. The specific line item from which the current funding for substance abuse treatment is authorized is line item 633. Section four of the GAA for 2016 contains the following proviso: From the funds in Specific Appropriations 598A through 755, the Department of Corrections shall, before closing, substantially reducing the use of, or changing the purpose of any state correctional institution as defined in section 942.02, Florida Statutes, submit its proposal to the Governor’s Office of Policy and Budget, the chair of the Senate Appropriations Committee, and the chair of the House Appropriations Committee for review. Based upon this limitation, Petitioner contends that the Department’s issuance of the RFP signals its intention to close, substantially reduce the use of, or change the purpose of a state correctional institution, by substantially reducing and changing the purpose of the facility at Orlando Bridge. Notably, the proviso contains no mention of substance abuse treatment or transition beds. Mr. Uccello testified that, at the request of Kim Banks, the Department’s CFO, and Steven Fielder, DOC’s Chief of Staff, he made a presentation regarding the overall developmental plan for in-prison programs and treatment in a general meeting between the Office of Policy and Budget (OPB and House and Senate Appropriations staff. He understood that it was an informational meeting, and did not believe that approval of the proposal was required. There was no testimony to indicate that the proposal was presented to the chairs of the House and Senate Appropriations Committees. Petitioner’s President and CEO, Lori Constantino-Brown, state that this RFP, compared to Orlando Bridges’ current contract, would require changes to all of Bridges’ policies and operational procedures, would result in layoffs of her employees, and would limit the number of inmates served in a community setting. She also testified that there are additional costs needed to run the facility as proposed, and providing the services with the limited number of beds proposed, would not be cost- effective for any vendor. Ms. Constantino-Brown acknowledged that Bridges does not have a right to provide transition beds as they exist under the current contract, and that an award to a different bidder would be lawful. She also acknowledged that if Orlando Bridges closed on January 1, 2017, because its contract expired, that would also result in staff layoffs. The same result would occur should another vendor successfully bid on the RFP. Petitioner has not demonstrated that the specifications of the RFP are arbitrary and capricious. The specifications are consistent with the Department’s intended restructuring of substance-abuse treatment and work release opportunities for inmates. Whether or not the plan is ultimately successful, the thought process behind the specifications included in the RFP is to address legitimate concerns for providing the most treatment to the greatest number of inmates. Petitioner stated at hearing that it was not challenging the policy articulated in Joint Exhibit 3, but spent a significant amount of time trying to establish that the changed strategy would not be less costly. However, the Department staff candidly testified that at this point, it is not possible to determine whether there would be any savings, because they do not know what vendors would identify as a price until they get responses to the RFP. Petitioner has not demonstrated that the RFP is contrary to competition. While there was some testimony that the requirements of the RFP may be cost-prohibitive for Bridges to respond, there was no real evidence to indicate that it created an advantage for any vendor over others. While Petitioner claims it is not challenging the policy change itself, it points to no term in the RFP that it finds offensive. The challenge, instead, is to what is not included: transition beds like the ones Bridges provides now. It contends that this omission amounts to the closure, substantial change in services, or substantial reduction in services provided by a state correctional institution, and therefore violates the proviso limitation in the General Appropriations Act. No term or specification in the RFP closes a state correctional institution. No term or specification in the RFP substantially reduces the use of a state correctional institution. While there is some reduction in the number of beds provided for in the RFP, there is also a proviso allowing for an increase in the number of beds, depending on need and funding. Moreover, the beds included in Contract #C2489 do not represent all of the beds at Orlando Bridges. No term or specification in the RFP changes the purpose of any state correctional institution. The purpose of Orlando Bridges, under its current contract, is to provide readiness programs to assist inmates to prepare for re-entry in society. RFP-17-108 seeks proposals for readiness programs, albeit using a restructured program model. While the vehicle may be different, the purpose remains the same: preparing inmates for release with a goal of lower recidivism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections amend the RFP in a manner consistent with the stipulation of the parties in the Joint Pre-hearing Statement, i.e., by removing the second sentence of section 1.4 of the RFP, and by removing section 2.5.19 of the RFP. It is also recommended that the Department enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of November, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2016.
The Issue Whether the Respondent should grant the Petitioner an exemption from disqualification from employment in positions of special trust.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Thomas seeks employment at the Everglades Youth Development Center, which is a 102-bed residential treatment facility for high-risk male juvenile offenders aged 13 to 18 years. Because of Mr. Thomas's criminal background, he is disqualified from working in positions of trust with the Department and can only work in such positions if he is granted an exemption from the disqualification. Criminal History Mr. Thomas was arrested in August 1987 and charged with lewd and lascivious behavior with a minor. In an Information dated October 7, 1987, issued by the State Attorney for the Sixth Judicial Circuit in Pinellas County, Florida, Mr. Thomas was charged with three counts of handling and fondling two girls under the age of 16 years in or about July or August 1987, in violation of Section 800.04(1), Florida Statutes (1987).1 At the time, Mr. Thomas was known as Anthony Lee Sanders, "Sanders" being his father's surname. Count I of the Information named Carolyn Coston, a/k/a Carolyn Gordon, as an alleged victim, and Counts II and III of the Information named Lonnette Frazier as an alleged victim. Mr. Thomas first met Ms. Frazier when he played basketball at Gibbs High School in St. Petersburg, Florida; she used to attend the games. Mr. Thomas also knew Ms. Frazier's parents. At the times set forth in the Information, Mr. Thomas was a counselor in the summer recreation program of the Police Athletic League, where he was responsible for supervising and working with children enrolled in the program. Ms. Coston and Ms. Frazier were enrolled in the program and under Mr. Thomas's supervision. Mr. Thomas and Ms. Frazier had dated more than six months before the incident in August 1987 that resulted in his arrest. At the time, Ms. Frazier was 14 or 15 years of age; Mr. Thomas was 19 years of age and a student at Manatee Junior College. Mr. Thomas admits that he and Ms. Frazier had one encounter of a sexual nature in August 1987, but he denies that he and Ms. Frazier had a second such encounter. Mr. Thomas knew Ms. Coston only as a client in the Police Athletic League summer recreation program. He denies ever having had an encounter of a sexual nature with her. After his arrest, Mr. Thomas was jailed for two weeks, then released on his own recognizance. He was represented by a public defender, who advised him and his mother that, if he were convicted of any one of the charges, he could be sent to prison for 25 years. Mr. Thomas was afraid of being sentenced to prison, and he agreed to accept a plea bargain offered by the State Attorney's office. It was his understanding that his attorney tried to convince the State Attorney to dismiss the count in the Information involving Carolyn Coston but was unsuccessful. As a result, Mr. Thomas pleaded guilty to all three counts of the Information, although he insists that he was actually guilty of engaging in only one sexual encounter with Ms. Frazier and that he never had a sexual encounter with Ms. Coston. In an Order Withholding Adjudication of Guilt and Placing Defendant on Probation, dated January 15, 1988, the court found that Mr. Thomas was "not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that [he] should presently be adjudged guilty and suffer the penalty authorized by law." Accordingly, the court withheld adjudication of guilt and placed Mr. Thomas on two years of community control and five years of probation. Mr. Thomas was permitted to continue attending classes and athletic games and practices, and he was allowed to travel with his athletic team. He was also required to pay for the duration of his community service and probation $12.00 per year to First Step, Inc., an organization whose function is not explained in the order. In an order entered May 12, 1988, the court modified the terms of Mr. Thomas's community control by changing the remainder of the community-control period to probation, with the sentence of five years of probation previously imposed to follow. Supervision of Mr. Thomas's probation was transferred to Sioux City, Iowa, where Mr. Thomas had received a scholarship to attend Morningside College. The May 12, 1988, order further provided that, "upon the Defendant's arrival in Sioux City, Iowa, he shall be evaluated to determine whether counseling as a sex offender is needed and, if needed, sex offender counseling shall be made a condition of Defendant's probation." Mr. Thomas did not graduate from Morningside College, but transferred to Bethune Cookman in Dayton Beach, Florida. In an undated affidavit prepared on or around August 25, 1992, Mr. Thomas's Florida probation officer stated that Mr. Thomas had violated the terms of his probation in the following respects: Violation of Condition (8) which states: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit your home, at your employment site or elsewhere, and you will comply with all instructions he may give you." In That, the aforesaid has violated this condition by willfully refusing to attend and successfully complete a Sexual Offender Treatment Program as instructed by his Probation Officer throughout his probation and as ordered by Judge Crockett Farnell on 5-12-88.[2] Violation of Condition (9) which states: "You will pay to First Step, Inc. the sum of Twelve Dollars ($12) per year for each year of probation ordered, on or before ninety days from the date of this order." In That, the aforesaid has violated this condition by willfully refusing to pay to First Step, Inc. the sum of $84 or $12 per year as evidenced by a balance of $84.00 as of 8-12-92. Mr. Thomas was at the time attending Bethune Cookman College. He did not enroll in sex offender counseling because he could not afford the fee; he did not make the payments to First Step, Inc., because he believed that these payments were waived because all of the other fees related to his probation had been waived. Mr. Thomas sold his car, paid the monies owing First Step, Inc., and enrolled in the counseling program. On November 6, 1992, Mr. Thomas entered a plea of guilty to the charges that he had violated the terms of his probation. An order was entered in which Judge Grable Stoutamire accepted the plea, continued Mr. Thomas on probation, and imposed the conditions that Mr. Thomas would "[s]uccessfully complete sex offender counseling now enrolled in" and that Mr. Thomas's "[f]our years DOC [Department of Corrections] suspended sentence is reinstated and will be imposed if defendant deliberately fails to complete sex offender course." Mr. Thomas successfully completed counseling, and he was granted early termination of probation on July 26, 1994. Employment history since 1994. Todd Speight, who is currently the Program Director of the Everglades Youth Development Center, has known Mr. Thomas since they met in 1989, when they both attended Morningside College in Iowa. Mr. Speight observed Mr. Thomas work with children when he was in college, and, in 1994, Mr. Speight recruited Mr. Thomas to work as a youth care worker at the Victor Cullen Academy, which is a residential treatment facility for high risk juveniles located in Maryland. At the time he recommended Mr. Thomas in 1995 for employment at the Victor Cullen Academy, Mr. Speight was aware that Mr. Thomas had pleaded guilty to charges of inappropriate sexual conduct with a girl who was a client of an agency that employed him.3 Mr. Speight was also aware that Mr. Thomas, nonetheless, successfully passed the Maryland employee screening process after he was hired at the Victor Cullen Academy. Mr. Thomas ended his employment at the Victor Cullen Academy when he moved back to Florida in 1995. In 1995 and 1996, Mr. Thomas worked briefly for Bridges of America, a drug and alcohol treatment program that was under contract with the Department of Corrections. He left his position with that organization because the Department of Corrections required that employees of the program be released from probation for at least three years. In the latter part of 1996, Mr. Thomas began working as a residential instructor at the Hope Center, which is a residential center for persons with developmental disabilities that operates under contract with the Department of Children and Families. The Hope Center serves males and females from the age of 12 years to the age of 70 years. Most of the residents are adults, but the Hope Center also serves children. Mr. Thomas disclosed his criminal background when he applied for the job at the Hope Center, and he discussed his background during his employment interview. Mr. Thomas worked at the Hope Center for a short time but was let go when the background screening done by the Department of Children and Families confirmed his criminal background. Mr. Thomas requested an exemption from disqualification from employment, and the exemption was granted in May 1997. Mr. Thomas was rehired by the Hope Center, where he worked from 1997 until the summer of 2002, when he was laid off due to budget cuts. At the time of the final hearing in January 2003, Mr. Thomas was employed at the Bayview Center of Mental Health, a residential program for mentally ill persons aged 18 through 60 years that is funded by the Department of Children and Families. Mr. Thomas was hired as a horticulture assistant, but, after six months of employment, he was promoted to a residential supervisor, effective January 20, 2003. First request to the Department for an exemption from disqualification from employment. In 1995, a request was made to the Department for a background check on Mr. Thomas, and, in July 1995, Mr. Thomas submitted to the Department an Affidavit of Good Moral Character in which he failed to disclose his criminal record. The Department learned through its background investigation that Mr. Thomas had pleaded guilty to three counts of lewd and lascivious behavior with two girls under the age of 16 years, offenses that disqualified him from working in positions of trust and responsibility. The Department also determined that Mr. Thomas did not have good moral character based on the submission of the false affidavit. Mr. Thomas did not request an exemption from disqualification. In 1996, Mr. Thomas was offered a job of trust and responsibility at the Everglades Youth Development Center, and Outreach Broward, Inc., submitted a request to the Department for a background check of Mr. Thomas. A form entitled Consent to Background Screening that was signed by Mr. Thomas on October 8, 1996, accompanied the request, and Mr. Thomas completed an Affidavit of Good Moral Character on October 8, 1996, in which he disclosed that he had a disqualifying criminal offense. The screening resulted in a determination that Mr. Thomas had an unfavorable/disqualifying sex offense of fondling a child. Mr. Thomas requested an exemption from disqualification from employment, and, after he was notified of the Department's intent to deny his request for an exemption, he requested an administrative hearing before an administrative law judge of the Division of Administrative Hearings. The hearing was conducted on May 5, 1998, and a Recommended Order was entered in which the administrative law judge found that Mr. Thomas had established by clear and convincing evidence that he was entitled to an exemption from disqualification from employment in a position of trust. The administrative law judge accordingly recommended that the Department grant Mr. Thomas an exemption so that he could work at the Everglades Academy with youthful male offenders. The Department entered a Final Order dated July 1998, in which it disagreed with the administrative law judge's recommendation and denied the request for an exemption. Second request to the Department for an exemption from disqualification from employment. In or around June 2002, Mr. Thomas wrote to Governor Jeb Bush regarding his efforts to obtain an exemption from disqualification from employment. In a letter dated June 7, 2002, the Secretary of the Department, W.G. Bankhead, responded to Mr. Thomas and advised him that, because more than three years had passed since his 1996 exemption request was denied, he would be allowed "to request an exemption via the desk review process." Secretary Bankhead directed Ray Aldridge, supervisor of the Background Screening Unit, to notify Mr. Thomas in writing of the requirements of the desk review process. Mr. Thomas was further advised that he would be required to undergo a criminal history background and driver's license screening. In early July 2002, Mr. Thomas submitted a Request for Desk Review on Disqualification, in which he checked the statement: "I request a Desk Review of my request for an exemption from disqualification based on the fact that I have clear and convincing evidence to support a reasonable belief that I am of good moral character." As part of the desk review, persons requesting exemptions are required to submit a letter describing the nature of their criminal offenses and their life since they committed the offenses. The following paragraph is contained in a letter to Mr. Aldridge dated July 28, 2002, and signed by Mr. Thomas: On August twenty second, nineteen eighty- seven, I Anthony L. Thomas was charged with sex offenses: two counts against a child, fondling/lewd and lascivious acts. On January fifteenth, nineteen eighty-eight I was found guilty of the two counts against a child, fondling/lewd and lascivious acts. I was sentence to complete seven years probation, which included attending counseling for sex offenders. In the next paragraph of the letter, Mr. Thomas refers to a single victim.4 The results of the Department's background screening were sent to the Department's Inspector General in a memorandum dated August 13. 2002. In the memorandum, Mr. Thomas's criminal history is described as "Sex offense - Against Child Under 16 - Lewd and Lascivious Act," with an arrest date of August 22, 1987. The false Affidavit of Good Moral Character submitted July 10, 1995, was noted in the memorandum as "Other history, which is not disqualifying." On September 9, 2002, the Department's Inspector General indicated on the memorandum that Mr. Thomas's request for an exemption from disqualification from employment was again denied. Subsequent to notice of the intent to deny the exemption request, Mr. Thomas requested the instant administrative hearing. Work record and character of Mr. Thomas. Mr. Speight was a team leader at the Victor Cullen Academy in 1994-1995, and Mr. Thomas worked on his team. Mr. Speight observed Mr. Thomas's job performance and found that the children in his charge were comfortable with Mr. Thomas and that Mr. Thomas did an excellent job with the children. Mr. Speight did not observe Mr. Thomas engage in any inappropriate conduct during his time at the Victor Cullen Academy. During the years he was employed at the Hope Center, from 1997 until the fall of 2002, Mr. Thomas worked in both the residential program supervising the residents and as an assistant in the social services program, arranging for services to residents, planning and supervising residents on outings and field trips, and communicating with residents' families. Aileen Phelan and David Chiverton, two of his supervisors at the Hope Center, consider Mr. Thomas an exemplary employee: He worked exceptionally well with the residents of the Hope Center, was attentive to the needs of the residents, was very caring, had a good work ethic, and was always willing to help where help was needed. Neither Ms. Phelan nor Mr. Chiverton observed Mr. Thomas engage in any inappropriate behavior during the seven years he worked there. Both were aware of his criminal background, including the charges of sexual misconduct with a minor client while he was a counselor in the Police Athletic League and the violation of probation for failing to complete sex offender counseling. They were not, however, aware that Mr. Thomas had pleaded guilty to charges involving two girls under the age of 16 years; Mr. Thomas had told them he had sexual contact with one girl. The knowledge that the criminal charges involved two girls did not alter Ms. Phelan's and Mr. Chiverton's opinions, based on their long association with Mr. Thomas and their familiarity with him as a person and as an employee working with developmentally disabled persons, that he is suitable for employment in a position of trust and that he should be granted an exemption from disqualification from such employment. Mr. Chiverton has such a high opinion of Mr. Thomas and his contributions to the community that, in April 2000, he extended an invitation to Mr. Thomas to serve as a trustee of the Foundation of Community Assistance and Leadership, of which Mr. Chiverton is the Executive Director. As the Program Director of the Everglades Youth Development Center, Mr. Speight would hire Mr. Thomas in an appropriate position at the Everglades Youth Development Center were the Department to grant him an exemption from disqualification from employment in a position of trust. In addition to being familiar with Mr. Thomas's work with children at the Victor Cullen Academy, Mr. Speight has spoken with some of Mr. Thomas's supervisors and co-workers over the past seven or eight years. Although Mr. Speight is aware that Mr. Thomas engaged in a sexual act with a minor in 1987, Mr. Thomas has been a good citizen during the years Mr. Speight has known him. In Mr. Speight's opinion, based on his personal knowledge of Mr. Thomas's character and of his work with high-risk juveniles and on the references from his co-workers, Mr. Thomas would be a highly desirable employee at the Everglades Youth Development Center, and he should be granted the exemption from disqualification from employment in a position of trust that will enable him to work at the Everglades Youth Development Center. Mr. Thomas acknowledges that, even though they had been dating for some time and he cared for her, he was wrong to engage in sexual behavior with Lonnette Frazier. He has been in touch with Ms. Frazier over the years and understands that she has been to college and is doing well.5 Mr. Thomas has been married since November 1999 to Francia Thomas, whom he met when he attended Bethune Cookman College in 1990-1991. Ms. Thomas is a high school business education teacher, and she and Mr. Thomas have a four-year-old son. Ms. Thomas has been aware of her husband's criminal history since shortly after they met. Mr. Thomas is currently attending college to complete his bachelor's degree. He believes that he can be a good example to youthful offenders and can show them that life does not end when you get in trouble as long as you change and use your life to do good. Summary The credible and persuasive evidence submitted by Mr. Thomas is sufficient to establish clearly and convincingly that he is rehabilitated, that he is of good moral character, that he is currently fit for employment in a position of trust and responsibility with the Department, and that he should be granted an exemption from disqualification from employment: Mr. Thomas was 19 years of age when he was arrested and charged with three counts of lewd and lascivious behavior with two girls under the age of 16 years, and 15 years have passed since he pleaded guilty to these offenses. At the time, the criminal court judge believed that Mr. Thomas was unlikely to engage in criminal behavior in the future, and he withheld adjudication of guilt. The only subsequent criminal violation in Mr. Thomas's background is the violation of probation in 1992. Mr. Thomas's failure to comply with two conditions of his probation was not the result of a bad and purposeful disobedience. Rather, Mr. Thomas's failure to attend sex offender counseling was the result of a lack of money to pay for the counseling, and his failure to pay a total of $84.00 to First Step, Inc., was the result of a misunderstanding of his obligation to pay the $12.00 per year fee. Mr. Thomas was granted early release from probation in July 1994, having successfully completed all of the conditions of his probation. Mr. Thomas long ago fulfilled the requirements imposed on him by Florida's criminal justice system, and he has no criminal history since the probation violation in 1992 but has, by all accounts, lived a good and productive life. Mr. Thomas has worked in positions of special trust with young people and with developmentally disabled children and adults since his release from probation in 1994: He worked with juveniles in a high-risk treatment facility in Maryland before returning to Florida in 1995; he was employed for seven years at the Hope Center as a residential instructor; and he is currently working as a residential supervisor at a center in Pembroke Pines that serves mentally ill residents. Mr. Thomas has the respect and loyalty of former supervisors and co-workers in these programs, and they describe a man who was an exemplary employee and a caring social service worker with whom adults and children were comfortable. The evidence is, therefore, sufficient to support a firm and unhesitating belief that Mr. Thomas would not pose a threat to children were he permitted to work with juveniles committed to the care of the Department.6 Mr. Thomas is married, he has a child and a stable home life, and he is completing his college education. Mr. Thomas admits that, in 1995, he submitted a false Affidavit of Good Moral Character in which he failed to disclose that he had pleaded guilty to a disqualifying offense. Although the false affidavit Mr. Thomas prepared in 1995 could reasonably serve as a basis for denying his 1996 request for an exemption from disqualification from employment, seven and one-half years have elapsed and Mr. Thomas has fully disclosed and discussed his criminal history with the Department. In light of his personal and employment history since 1995, Mr. Thomas's failure to disclose this criminal history in 1995 is not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Mr. Thomas's failure to state in the July 28, 2002, letter to Mr. Aldridge that he was charged with three counts of lewd and lascivious behavior with two separate girls under the age of 16 years is, likewise, not sufficient to support a finding of fact that Mr. Thomas lacks good moral character. Although Mr. Thomas pleaded guilty to the three counts of lewd and lascivious behavior in 1987, when he was 20 years old, the credible and persuasive evidence establishes that he did so as part of a plea bargain to avoid what he feared could be a prison sentence of 25 years. Throughout the hearing, Mr. Thomas proclaimed his innocence with respect to the charge that he engaged in lewd and lascivious conduct with Carolyn Coston, and he repeatedly asserted that he had actually engaged in conduct of a sexual nature only with Lonnette Frazer, and the omission in the letter of reference to the third count of and the second girl named in the Information is a minor error of omission that is insufficient to outweigh Mr. Thomas's personal and employment history during the past nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Anthony L. Thomas an exemption from disqualification from employment in a position of trust or responsibility with the Department of Juvenile Justice. DONE AND ENTERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2003.
The Issue The central issue in this case is whether Petitioner abandoned his position and thereby resigned his career service at the Broward Regional Juvenile Detention Center.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Oscar T. Brown was a career service employee at the Broward Regional Juvenile Detention Center. Mr. Brown was a DCWI and was assigned to the C- shift. On May 4, 1987, Petitioner requested annual leave for the period from June 30, 1987, through July 8, 1987. The purpose of this request was to afford Petitioner with time off. Petitioner's immediate supervisor, Margaret Ann Wilks, approved the leave request. However, the assistant superintendent, Ron Fryer, disapproved the leave request. Petitioner was notified that the leave had been disapproved prior to June 26, 1987. On June 26, 1987, Ms. Wilks asked Mr. Fryer to reconsider his decision to disapprove Petitioner's leave request. Mr. Fryer did not approve the leave request and did not advise Ms. Wilks that the leave could be taken. Petitioner elected to take leave solely on the approval offered by Ms. Wilks. Petitioner did not report to work, as scheduled, for the period he had requested leave. Petitioner did not call in during the time he had requested leave. Neither a DCS III or DCS I approved Petitioner's leave request. Such approval is required prior to annual leave being taken. The Broward Regional Juvenile Detention Center houses minors in a totally supervised environment including lockups and hourly review of detainees' security. During the period Petitioner requested leave, the facility held from 140 to 180 minors. Mr. Fryer denied Petitioner's leave request because the facility was overcrowded and due to manpower and staffing problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order affirming the decision that Petitioner had abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 13th day of November, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 13th day of November, 1987. COPIES FURNISHED: Harvey Swickle, Esquire 1031 North Miami Beach Boulevard North Miami Beach, Florida 33162 Larry Kranert, Esquire District Legal Counsel 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2029 to Henry and Rilla White Youth Foundation, Inc. (White Foundation) is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2029 on April 17, 2007. The RFP solicited proposals for a “240-available slot Community-based Intervention Services program for boys and girls for Volusia, Flagler and Putnam counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $1,504,968, and prospective providers were required to propose a price at or below that amount. EYA and White Foundation submitted timely, responsive proposals in response to the RFP. White Foundation’s proposal offered a slightly lower price than EYA’s proposal.1 On June 18, 2007, DJJ posted notice of its intent to award the contract to White Foundation. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to White Foundation. The RFP provided that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and White Foundation, the prospective provider operated DJJ-contracted non-residential programs in Florida. The proposal could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP states that the proposal that receives the highest overall score will be awarded the contract. White Foundation’s proposal received a total of 785.98 points, which was the highest overall score. White Foundation’s score included 40 points for Part III of Attachment C. EYA’s proposal received a total of 752.03 points, which was the second-highest overall score. EYA received zero points for Part III of Attachment C. EYA contends that White Foundation should not have received any points for Part III, which would have resulted in White Foundation’s overall score being 745.98 and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Rehabilitation Accreditation Commission (CARF). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by the Council on Accreditation (COA), but its non-residential juvenile justice programs are not accredited by COA , CARF, or any other organization. White Foundation listed four programs in its response to Part III of Attachment C: a conditional release program in Nassau County; a conditional release program in Duval County; a conditional release program in Clay County; and an Intensive Delinquency Diversion Services program in Circuit 2. The documentation provided by White Foundation to show that the listed programs are accredited was an undated certificate from CARF and a one-page “Survey Accreditation Detail” dated June 28, 2006. The CARF certificate states that “a three-year accreditation is awarded to the [White Foundation] for the following identified services: case management/services coordination: family services (children and adolescents)" and for “out-of-home treatment: family services (children and adolescents).” The seal on the certificate includes an expiration date of August 2007. The CARF certificate does not mention any of the programs listed by White Foundation in response to Part III of Attachment C. It only certifies that that White Foundation is accredited as an organization for certain services. The Survey Accreditation Detail document makes reference to survey number 32190; company number 200190; an accreditation decision of “three-year accreditation”; an accreditation expiration date of August 31, 2007; and Correction Services of Florida, LLC as the “company submitting intent.” The document lists six “companies with programs,” including the four programs listed by White Foundation in its response to Part III of Attachment C. The bottom of the Survey Accreditation Document includes the notation “page 1 of 2.” The second page of the document is not included in the portion of White Foundation’s response to the RFP that was received into evidence, nor is it included in the exhibit attached to the deposition of Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C. Mr. Hatcher testified that he interpreted the Survey Accreditation Detail document to be “a summary of the prospective provider’s programs that received accreditation based on the CARF award letter.” That interpretation, while not implausible, is not adequately supported by the evidence of record. First, there is nothing on the Survey Accreditation Detail document to demonstrate that it was prepared by CARF, and Mr. Hatcher acknowledged that he did not know who prepared the document. Second, it cannot be determined from the Survey Accreditation Detail document whether the “three-year accreditation” referred to in the document relates to all of the “companies with programs” listed on the document, or just to Correction Services of Florida, LLC, which is identified as the “company submitting intent.” Indeed, each of the listed “companies with programs” has a different six-digit number in parenthesis following its name and only the number following Correction Services of Florida, LLC, matches the “company number” referenced at the top of the Survey Accreditation Detail document. Third, the record does not reflect the relationship, if any, between White Foundation and Correction Services of Florida, LLC. Indeed, Mr. Hatcher testified that he did not know anything about Correction Services of Florida, LLC, except that it appeared to have the same address as White Foundation. The CARF certificate and the Survey Accreditation Detail document do not on their face reflect whether the listed programs are non-residential programs (as compared to residential programs) or whether they are juvenile justice programs (as compared to juvenile programs that do not involve the juvenile justice system). However, Mr. Hatcher testified that all of the services identified on the CARF certificate correspond to non-residential facilities and that he was familiar with the listed programs and knew that they were juvenile justice programs. It cannot be determined from the CARF certificate and Survey Accreditation Detail document whether the four programs listed by White Foundation in its response to Part III of Attachment C are accredited. Indeed, Mr. Hatcher candidly acknowledged as much in his testimony.2 If DJJ had scored White Foundation’s proposal in accordance with the specifications of the RFP, the proposal would have received zero points for Part III of Attachment C, which would have resulted in EYA’s proposal receiving the highest overall score.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order rescinding the proposed award of RFP No. P2029 to White Foundation. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2007.
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to existing Florida Administrative Code rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017, (the "Challenged Rules"), adopted by the Department of Juvenile Justice (Department). At issue is whether some or all of the challenged rules constitute an invalid exercise of delegated legislative authority as defined by section 120.52(8), Florida Statutes. The challengers allege the rules are invalid on three grounds: The rules modify the dividing line between county and state responsibility for the costs of secure juvenile detention from "final court disposition" to "commitment"; The rules fail to implement the requirement that the counties are only responsible for the "actual costs" of secure juvenile detention for the period of time prior to final court disposition; The rules inappropriately utilize an appropriations bill to modify the amount Petitioners are required to pay for predisposition costs under section 985.686, Florida Statutes.
Findings Of Fact The Parties Respondent, the Department, is the state agency responsible for administering the cost sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. Petitioners and Intervenors are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost sharing requirements of section 985.686. Petitioners and Intervenors are substantially affected by the application of Florida Administrative Code Rules 63G- 1.010 through 63G-1.018. (Joint Pre-hearing Stipulation). As such, the Challengers have standing to initiate this proceeding. The Implementing Statute and the Challenged Rules The statutory process governing the shared county and state responsibility for secure juvenile detention was adopted in 2004, but did not go into effect until 2005.4/ On July 16, 2006, the Department promulgated rules 63G- 1.002, 63G-1.004, 63G-1.007, and 63G-l.008, among others, which set forth definitions and formulated procedures for calculating the shared costs of juvenile detention between the State of Florida and the various counties (Old Rules). The Old Rules were repealed as of July 6, 2010, and, in their place, the Department adopted the Challenged Rules 63G- 1.0ll, 63G-1.013, 63G-1.016, and 63G-1.017. The Challenged Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care "for juveniles for the period of time prior to final court disposition." § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of "its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition," based on "the prior use of secure detention for juveniles who are residents of that county, as calculated by the department." § 985.686(5), Fla. Stat. (emphasis added). Section 985.686(1) requires non-fiscally constrained counties and Respondent to share the costs of "financial support" for "detention care" for juveniles who are held in detention centers operated by Respondent. Section 985.686(3) requires Petitioners to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in section 985.686(2)(a) to mean secure detention. Secure detention is defined in section 985.03(18)(a), for the purposes of chapter 985, to include custody "pending" adjudication or disposition as well as custody "pending" placement. Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, "[a]ny difference between the estimated costs and actual costs shall be reconciled. . . " Id. The Challenged Rules Among the relevant changes made in the Challenged Rules, the Department replaced the definition of "final court disposition" in rule 63G-1.002 with a definition for "commitment" in rule 63G-1.011. Specifically, Old Rule 63G- 1.002, states that "final court disposition" means "the date the court enters a disposition for the subject referral." This definition was replaced by rule 63G-1.011 with a definition of "commitment," which "means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation." Rule 63G-1.011(8) includes a definition for "Pre- commitment" that was not included in prior rule 63G-1.002. "Pre-commitment" means "those days a youth is detained in a detention center prior to being committed to the department." The newly-defined terms are incorporated in the challenged rules governing calculation of the estimated funding (63G-1.013); monthly reporting (63G-1.016); and in the calculation of days for the annual reconciliation (63G-1.017). In rule 63G-1.013(b) the Counties' estimated funding is determined by, "[t]he total number of pre-commitment service days in secure detention," which include "all days up to but not including the date of commitment to the department." The rule also requires that counties pay a portion of "the total pre- commitment service days for all counties for the same time period to arrive at each county's percentage of the total." Challenged Rule 63G-1.016 requires the Department to generate a monthly web-based utilization report to provide each county's "actual usage" for the previous service month. The report includes information on each youth including the "commitment disposition date, if available." In Challenged Rule 63G-1.017, "commitment disposition date" is used to determine the counties' actual costs. The Department's previous rule 63G-1.002 acknowledged that a "final court disposition" might result in several alternative dispositions of a delinquency charge, which, in addition to commitment, could include probation or dismissal of a charge. The challengers contend that under the new rules the counties are responsible for all "Pre-commitment" detention costs regardless of whether the costs accrue after a court enters a final disposition in the case that does not involve commitment of a youth to the custody of the Department for placement in a residential or non-residential program. Commitment is a subset of final court disposition, according to the challengers, since there are other types of dispositions other than commitment. By adopting the current definition of "commitment" in rule 63G-1.011, the challengers contend that the Department has impermissibly restricted and narrowed the term "final court disposition" in violation of the implementing statute. Navigating the Juvenile Justice System In order to determine the validity of the Challenged Rules it is necessary to understand how juveniles accused of committing a delinquent act are processed in Florida. Without objection, the final hearing testimony of the Honorable Anthony H. Johnson in DOAH Case No. 10-1893, et al., was received in evidence. Judge Johnson is the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit. Judge Johnson explained the sequence of events that occurs after a juvenile has been arrested and accused of delinquency: Okay, we’ll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are [sic] remained detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it’s regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That’s also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it’s possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past 21 days. That’s relatively unusual. It’s usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they’re found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It’s really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it’s the judge, but it’s not really. And that decision is made—is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention--let me not say scores. If it’s a level eight or above, then the child will remain detained. If it’s not that, the child will be released and told to go home on home detention awaiting placement. Here’s where things get, I think, probably for your purposes, a bit complex. Let’s say at the disposition, the child--the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child’s on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I’m going to handle this by holding the child in contempt for disobeying the court’s order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Based upon the testimony of Judge Johnson, as well as reference to the applicable statutory provisions,5/ the following flowchart maps the "throughput" of accused juvenile delinquents in Florida's juvenile justice system from the time of arrest until their release from the system: Court Appearance (within 24 hrs.) Trial (adjudication hearing) Guilty Verdict Not Guilty Verdict (Release) Max 21 days Pretrial Detention Joint Assessment Center (D.R.A.I.)* Release FLORIDA’S JUVENILE JUSTICE SYSTEM Arrest Release Detention Successful V.o.P Release Max 15 days Disposition Hearing Predisposition Report Prepared by DJJ) V.o.P. Hearing Probation Conditional Release Commitment to DJJ or DCF Agency Completion of residential or non- residential rehabilitation program Committed to DJJ or DCF-Licensed Child Caring Agency but Sent Home Pending Placement Commitment to DJJ and Detained Pending Placement Contempt Other Probation * Detention Risk Assessment Instrument Consistent with Judge Johnson's testimony and section 985.433, once a juvenile has been adjudicated delinquent there are two options available to the court at the disposition hearing: commitment or probation. If the court determines to commit the juvenile, its commitment options are circumscribed by section 985.441, which provides in relevant part: 985.441 Commitment.— The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing: Commit the child to a licensed child- caring agency willing to receive the child; however, the court may not commit the child to a jail or to a facility used primarily as a detention center or facility or shelter. Commit the child to the department at a restrictiveness level defined in s. 985.03. Such commitment must be for the purpose of exercising active control over the child, including, but not limited to, custody, care, training, monitoring for substance abuse, electronic monitoring, and treatment of the child and release of the child from residential commitment into the community in a postcommitment nonresidential conditional release program. If the child is not successful in the conditional release program, the department may use the transfer procedure under subsection (4). Commit the child to the department for placement in a program or facility for serious or habitual juvenile offenders in accordance with s. 985.47. Section 985.03(32) defines “licensed child-caring agency” as a person, society, association, or agency licensed by the Department of Children and Families to care for, receive, and board children. Thus, a child may be committed to the custody of an "agency" under the auspices of the Department of Children and Families, or committed directly to the custody of Respondent. Section 985.433 imposes additional requirements on a court which has decided to commit a juvenile offender to the custody of DJJ: If the court determines that the child should be adjudicated as having committed a delinquent act and should be committed to the department, such determination shall be in writing or on the record of the hearing. The determination shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department, including any determination that the child was a member of a criminal gang. When a court's disposition of a juvenile delinquent is probation rather than commitment, section 985.433 applies in relevant part: If the court determines not to adjudicate and commit to the department, then the court shall determine what community-based sanctions it will impose in a probation program for the child. Community-based sanctions may include, but are not limited to, participation in substance abuse treatment, a day-treatment probation program, restitution in money or in kind, a curfew, revocation or suspension of the driver’s license of the child, community service, and appropriate educational programs as determined by the district school board. Department Implementation of its "Commitment" Definition The Juvenile Justice Information System (JJIS) is the Department's statewide information system that tracks all delinquency referrals, arrests, placements and disposition data associated with every youth arrested in Florida. Historically, information was pulled from JJIS to determine the number of days billed to the counties. Once a disposition order was entered on a delinquency petition charge, assigning a youth to probation, commitment, or other possible outcomes, the system would "stop billing" the counties as of the date of the order, and any subsequent detention days would be assigned to the State. Under the new "commitment" definition as set forth in the Challenged Rules (and as implemented by JJIS), the Department's information system only looks for a "qualifying disposition to a commitment status" or placement on conditional release. All other days are considered pre-disposition, and therefore the responsibility of the counties. This change has narrowed the types of dispositions captured by the computer coding. Although it is possible to obtain disposition dates from JJIS based on a written disposition order for dispositions such as probation or dismissal of the charge, that information is no longer used in the cost sharing system or provided to the counties unless it is a commitment disposition. However, pursuant to Juvenile Procedure rule 8.115 (which governs disposition hearings), all disposition orders must not only include the disposition of each count, but also specify the “amount of time served in secure detention before disposition.” See, Fla. R. Juv. Pr. 8.115(d)(2). Thus, the Department could readily determine the number of predisposition detention days for all court dispositions, including probation, by accessing the information contained in the disposition order. The Challenged Rules shift a greater responsibility of costs to counties, because the Department only obligates itself to pay for one type of post-disposition expense, i.e. those associated with commitment of the juvenile to the custody of the Department for placement in a residential or non-residential program. The Department assigns any other days to the counties, including utilization days occurring after a disposition has been entered assigning a juvenile to probation, or dismissing the charge. Other costs for post-disposition activities that result in secure detention, such as violation of probation, pickup orders, or contempt of court, that do not involve commitment become the responsibility of the counties. Additionally, any detention days for juveniles waiting for private placement outside of the Department, such as commitment to a licensed child caring agency, would also be counted as pre- dispositional and billed to the counties. The overall impact of the definitional change from "final court disposition" to "commitment" has been a reduction in the number of detention days assigned to the State, and an increase in the number of days assigned to the counties. This shift in days numbers in the tens of thousands. The Challenged Rules limit the state's statutory responsibility for detention costs by narrowing "final court disposition" to "commitment." The result is a shift in additional detention care costs to the counties in contravention of section 985.686. The Department attempted to defend its use of the term "commitment" as a reasonable interpretation of "final court disposition" through the testimony of its representative, Beth Davis. Ms. Davis explained that in the Department's view, probation, while a form of "disposition," is not a "final court disposition," because the "case is not closed" until the youth successfully completes probation. However, this interpretation ignores the fact that juvenile offenders committed to the Department often serve a term of probation following completion of their residential rehabilitation.6/ Under the Department's reasoning, there would be no "final court disposition" until those youths successfully completed their terms of post- commitment probation and their cases are closed. By this logic "commitment" would not accurately represent the dividing line between state and county responsibility, since "final court disposition" would not occur until successful completion of post-commitment probation. The Department's position in this regard is internally inconsistent and not supported by facts or logic. Accordingly, the Department's position that "final court disposition" does not occur until completion of probation is rejected. Under section 985.433(8), probation is one of the possible statutory outcomes of the disposition hearing, and this record does not support the Department's position that probation is any less a "final court disposition" than "commitment."7/ Also problematic to the Department's position is the situation created when a delinquent is placed on probation at the disposition hearing and subsequently violates the terms of probation. Under this scenario, the juvenile will be taken into custody8/ and brought before the court having jurisdiction. If the court determines a violation has occurred, rather than go through a formal violation of probation hearing, it may find the youth in contempt of court and order the child detained for up to five days for the first offense and up to 15 days for subsequent offenses.9/ According to Ms. Davis, the days during which the delinquent is detained for contempt of court are considered "predispositional" and therefore the financial responsibility of the counties. The above scenario highlights the unreasonableness of the Department's use of "commitment" as the line of demarcation for state and county responsibility. Under this scenario, a disposition hearing was held pursuant to section 985.433, and the court ordered a disposition of probation pursuant to 985.433(8). However, if the youth violates probation and consequently is held in contempt of court, predisposition days accrue to the detriment of the counties, notwithstanding the prior court disposition of probation. Change in Department Methodology for Determining Estimate and Reconciliation Amounts Billed to Counties. For the first two years of detention-cost sharing, the Department based a county's obligation on a per diem approach. The Department applied a methodology for billing counties their share of secure detention cost based on a "per diem rate," where each county paid an amount based on the number of their "predispositional days" times a cost per day calculated by the Department that applied to both pre and post-dispositional days. The cost per day was derived by dividing the total costs for secure detention program by the number of total utilization days. An estimate was provided based on the budgeted amount for detention, and a reconciliation was performed at the end of the year to “true-up” the amounts billed to the counties to the actual costs based on, at that time, a cost per day for the entire secure detention program. However, as a result of a challenge brought by Hillsborough County against the Department in DOAH Case No. 07- 4398, Administrative Law Judge Daniel Manry issued a Recommended Order on March 7, 2008, invalidating the Department's methodology under rule 63G-1.004, regarding the Department's process for providing estimates to the counties. Judge Manry concluded that the Department's per diem methodology conflicted with its procedures outlined in rule 63G-1.004. This rule requires that the Department determine the estimate based on the following: (2) Each County will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. "Cost of detention care" is defined in the Old Rules as "the cost of providing detention care as determined by the General Appropriations Act." (G.A.A.) Fla. Admin. Code R. 63G- 1.002(1). Significantly, this term was only utilized in relation to the estimate, and was not used with regard to the annual reconciliation process. Judge Manry did not make any findings or conclusions with regard to rule 63G-l.008, which governed the annual reconciliation process. Presumably, this is because the process provided in the Old Rules for the annual reconciliation is not the same as the process outlined for the estimate. Instead, rule 63G-1.008 provides only that the reconciliation statement "shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." There was no requirement in rule 63G-1.008 that the reconciliation be based on anything within the G.A.A.; the only time the G.A.A was mentioned was with regard to the estimate. Beginning in FY 07-08, the Department began to apply a different approach that did not use a per-diem methodology, but instead calculated the percentage of each county's pre- dispositional days as compared to the other counties and multiplied that amount by the Shared Trust Fund. This methodology was applied not just to the estimate process, but also to the reconciliation process. Effective July 6, 2010, this new approach was specifically adopted by the Challenged Rules into the reconciliation process. Fla. Admin. Code R. 63G- 1.017. Impact of the New Approach on the Counties When the Department abandoned the cost per day approach it created an inequity and raised the cost to counties over that of the State for secure detention. This inequity is a result of a combination of several factors. Under the Department's revised approach, it allocates amongst the counties as a group the budgeted amount for the Shared Trust Fund as determined by the G.A.A. It assigns this amount to individual counties based on utilization numbers from the fiscal year two years prior to the current fiscal year. For example, for the estimate for FY 09-10, the utilization numbers for FY 07-08 were used. The counties are billed monthly based on this amount. As the year progresses, the Department expends amounts up to its budget authority to support the secure detention program from four funding sources,10/ regardless of whether these amounts are applied to pre- or post-dispositional expenditures. The final bill to each county is based on the annual reconciliation done at the end of the year. Under the Department's methodology adopted by the Challenged Rule 63G- l.017 in 2010, the Department allocates only the expenditures from the Shared Trust Fund amongst the counties based on a percentage of an individual counties' actual utilization numbers as compared to all other counties. However, because the Department makes no effort to expend funds from the Shared Trust Fund only for the costs of predisposition secure detention, there is no correlation between the expenditures made from this trust fund and the statutory responsibility of each county to pay its "actual costs" "for the period of time prior to final court disposition." Although counties are only authorized and obligated by the statute to pay for predispositional costs, the Shared Trust Fund, which contains the revenues from the county billings, is being used to fund both predispositional and postdispositional costs.11/ In effect, under the Challenged Rules the Department never "trues-up" the estimated amounts billed to each county with the respective county's statutory share of the actual costs as contemplated by section 985.686. The percentage of predispositional days of secure detention which are the counties' responsibility does not match the percentage of revenues allocated to the counties. This inequity establishes that the counties are in fact funding a portion of post-disposition detention days, which are the State's responsibility pursuant to statute. Indeed, on cross- examination Department witnesses specifically acknowledged that the legislature is underfunding the Department's statutory responsibility, and that the counties are subsidizing a portion of the state's share. The evidence established that for fiscal year (FY) 2007-08 alone, the counties paid $2,980,716 over the actual cost of pre-disposition days. The amount by which the counties have subsidized the state's share of detention costs in recent years is likely understated. This is because the Department began applying its definition of commitment in FY 2009-2010, rather than the statutory dividing line of "final court disposition." Because the Department does not track the dates of disposition other than for a commitment disposition, the extent of the effect of this definitional change is uncertain. However, evidence presented at hearing suggests that the effect on the costs allocated to the counties is substantial. Petitioners presented evidence of an alternative calculation of detention costs to the counties based on a cost per day methodology, similar to the methodology employed by the Department prior to the 07-08 fiscal year. For FY 08-09, Petitioners' expert calculated that the cost per day was $224, based on utilization days for both the counties and the state divided by the total expenditures for the secure detention program. For FY 09-10, this same calculation resulted in a cost per day of $255. By applying this cost-per-day figure, Petitioners' expert calculated that for FY 08-09, the non-fiscally constrained counties would be required to pay $72,507,456 as their portion of secure detention costs, as compared to the $90,859,820 the Department assessed these counties. Thus, these counties paid $18,352,364 more for detention cost sharing for 08-09 than they would have under the prior per diem methodology. Similarly, for FY 09-10, Petitioners' expert calculated that the non-fiscally constrained counties would be required to pay $80,205,660 under a cost-per-day analysis, as compared to the $85,317,526 these counties were assessed under the Department's current methodology. These counties paid $5,111,866 more for detention cost sharing for FY 09-10 than they would have under the prior per-diem methodology. In addition, because the definitional change to commitment was applied for this fiscal year, there is evidence that the dollar difference in the two methodologies is significantly understated for that fiscal year. This testimony is persuasive regarding impacts on the counties. In fact, the Department's own documents reflect that for FY 08-09, the counties had subsidized the state's portion of detention costs by $17,733,995. For FY 09-10, this number was $5,412,546. This analysis highlights the inequities in the Department's methodology, as promulgated in the Challenged Rules. For example, for FY 2008-09, the Department was paying $127 per day for their post-dispositional days, while the counties were paying $284 per day, more than double the Department's cost per day, despite the fact that a day of secure detention, whether pre- or post-dispositional, has the same actual cost. The annual reconciliation process as set forth in the Challenged Rules conflicts with section 985.686, since it results in counties being assessed more than the “actual costs” “for the period of time prior to final court disposition.” A preponderance of the evidence established that the Challenged Rules enlarge, modify and contravene chapter 985 and specifically section 985.686, Florida Statutes.
The Issue Whether a proposed amendment to Rule 33-7.008(7), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the Challenged Rule. The Respondent stipulated that the Petitioners have standing to challenge the Challenged Rule. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rule implements Section 944.706(3), Florida Statutes, which provides: (3) The department shall advance the release date of a nonparole contract releasee by up to 30 days and shall forward to the Department of Labor and Employment Security a release assistance stipend of up to $200 for the purpose of motivating the releasee to participate in prerelease orientation, secure permanent employment, and secure permanent residence. The Department of Labor and Employment Security shall distribute the release assistance stipend to the releasee in accordance with the provisions of law and of the release contract. Violation of the terms of the contract may constitute grounds for the forfeiture of the release assistance stipend and the termination of the contract. Rule 33-7.008(7), Florida Administrative Code. Rule 33-7.008(7), Florida Administrative Code, currently provides: (7) Each facility is authorized to release a contract releasee up to 30 days prior to his sentence expiration date after the Bureau of Admission and Release has verified the expiration date as computed in accordance with instructions of the sentencing court and applicable statutes. The discharge certificate and any related documents must reflect the actual date of release. Parole releasees and inmates excluded in subsection (2) will not be eligible for a further reduction in their release date. The only modification to Rule 33-7.008(7), Florida Administrative Code, made by the Challenged Rule is to replace the terms "up to 30 days" with the terms "one day." The Transition Assistance Program. The program established by the Legislature in Section 944.706(3), Florida Statutes, is known as the Transition Assistance Program (hereinafter referred to as "TAP"). In creating the TAP, the Legislature has evidenced an intent to assist certain inmates in adjusting to their release back into the community. Indirectly, the TAP also creates an early release mechanism which has helped control inmate population. In the past the Respondent has relied on the TAP and Section 944.706(3), Florida Statutes, as a means of meeting required inmate population levels. The early release of inmates through TAP is conditioned upon their participation in the pre-release activities of the TAP, the payment of a $200.00 stipend to inmates to encourage their participation in the TAP and participate in post-release activities of the TAP. There is no requirement that inmates be released early contained in Section 944.706(3), Florida Statutes, unless an the inmate meets these conditions. Pre-release activities of the TAP includes analysis of inmates, a pre- release orientation program and paper work for referrals in the community for post-release activities. The pre-release orientation program lasts 40 hours. The $200.00 stipend is paid in part when an inmate is released, in part when the inmate reports to a community contact person and in part when the inmate returns to the community contact person. Post-release activities of the TAP included housing and employment referrals which were provided by the Florida Department of Labor and Employment Security and community-based organizations through a contract with the Respondent. Purpose For the Challenged Rule. In 1991, the Legislature did not appropriate any funds to the Respondent to carry on the TAP. No funds were authorized for the $200.00 stipend, to fund the contracts for post-release programs or to fund staff needed for the pre-release program. The Respondent, since the 1991-1992 fiscal year has only been able to provide a two-hour pre-release orientation video to inmates prior to their release. The Respondent has not been able to provide inmates with a $200.00 stipend or any post- release TAP activities. As a consequence of the Legislature's failure to fund the TAP, the Respondent has been unable to provide the means for inmates to meet the conditions for any significant early release required by Section 944.706(3), Florida Statutes. The Control Release Authority was created by Section 947.146, Florida Statutes, in 1989. The Primary purpose of the Control Release Authority is to implement a system of uniform criteria for determining the number and categories of inmates who must be released in order to maintain required prison populations. The need to rely on the TAP to maintain required prison populations was eliminated by the creation of the Control Release Authority. Based upon the inability to provide the TAP caused by loss of funding and in light of the creation the Control Release Authority, the Respondent decided to limit early release of inmates pursuant to Section 944.706(3), Florida Statutes, to one day. This decision was initially implemented by non- rule policy. This policy was declared invalid for failure to adopt the policy as a rule in accordance with Section 120.54, Florida Statutes, in a Final Order entered September 6, 1991, in Richard Charles Gaston v. Department of Corrections, DOAH Case Number 91- 3203R. The Respondent subsequently promulgated the Challenged Rule. Although it cost more to house an inmate than to release an inmate, the Respondent has no authority under Section 944.706(3), Florida Statutes, to simply release inmates early because it is cheaper. Early release pursuant to Section 944.706(3), Florida Statutes, is conditioned on participation in the TAP. If the Respondent is unable to provide the programs necessary for inmates to meet the conditions of Section 944.706(3), Florida Statutes, for early release, then the Respondent may not release inmates simply because it is cheaper than housing them. In light of the program that the Respondent is able to provide inmates (a two-hour orientation video), a one day early release is reasonable. Although the Respondent testified that any number of days could have been authorized by the Challenged Rule (up to a maximum of thirty), this testimony ignores the requirement of Section 944.706(3), Florida Statutes, that early release is conditioned on inmates receiving the programs contemplated. The testimony was merely an indication that the Respondent could select any number of days for early release from a practical- logistical basis. It does not appear, however, that such authority is granted the Respondent by Section 944.706(3), Florida Statutes.
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification, thereby allowing him to work in a position of special trust or responsibility.
Findings Of Fact When Petitioner was a very young child, his mother was a drug addict with a criminal history for stealing. When Petitioner was in the fifth grade, he went to live with his father, a public school teacher, and his grandmother in Palm Beach County, Florida. In December 1989, Petitioner was a 13-year-old middle school student. Petitioner became involved with other boys who had a bad influence on him. On one occasion, Petitioner was present when the group tried to bully another student into giving up his lunch money. The victim did not sustain any significant physical injury. As a result of that incident, Petitioner was charged with attempted strong arm robbery. In a subsequent trial in juvenile court, a circuit judge in Palm Beach County, Florida, determined that Petitioner had committed the delinquent act of battery on a minor as the lessor included charge of attempted strong arm robbery. The judge withheld adjudication of a delinquent act, placing Petitioner in a community control program under the supervision of a counselor. The judge required Petitioner to complete 20 hours in a community service work program. Most importantly, the judge instructed Petitioner to have no further contact with certain people. On August 13, 1990, the circuit judge entered an Order terminating Petitioner's supervision in Case No. CJ-90-0281-JK. The Order states that Petitioner had successfully fulfilled all conditions of the community control program for a reasonable period of time. After graduating from high school, Petitioner went to college in August 1995. From June 1995 through June 1998, Petitioner worked for Target Department Stores in West Palm Beach, Florida. His job title was loss prevention specialist, which involved monitoring the store for shoplifting and preparing data on the inventory losses. Petitioner quit his job with Target Department Stores to attend college at Bethune-Cookman College in Daytona Beach, Florida. While he was enrolled at Bethune-Cookman College, Petitioner became the primary custodian of his infant son. On February 12, 1999, Petitioner was on his way home from class in Daytona Beach, Florida. Based on a case of mistaken identity, Petitioner was stopped and arrested for robbery. Soon thereafter, the authorities realized that Petitioner was not the perpetrator of the robbery. On March 23, 1999, the state attorney for Volusia County, Florida, filed an Announcement of No Information in Case No. 99-30708CFAES, in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida. The state attorney directed the police department to hold all physical evidence because charges were to be filed against the actual perpetrator. Petitioner's mother was released from prison in 1998. Petitioner and his sister, a public school teacher, decided that they would try to help rehabilitate their mother. On November 11, 1999, Petitioner went to a department store in Volusia County, Florida, with his girlfriend, his mother, his mother's boyfriend, and one of his mother's male friends. Petitioner was the last member of the group to enter the store. Petitioner spoke to his mother and went to the restroom in the store. Petitioner then shopped for a shirt but left the store with the group without buying anything. Clear and convincing evidence indicates that Petitioner and his girlfriend were not engaged in shoplifting while they were in the store. Petitioner's testimony that he was unaware that his mother, his mother's boyfriend, and his mother's other male friend were shoplifting is also clear and convincing. As the group left the store, the store's security officer approached the group, demanding the return of all stolen merchandise. Petitioner immediately showed the security officer that he did not have any merchandise. The security officer gave Petitioner permission to leave the premises. Petitioner's mother, her boyfriend, and her other male friend were in possession of stolen merchandise. The two male friends took off running through the parking lot. Petitioner's mother returned the stolen merchandise in her possession to the security officer and got in the car with Petitioner and his girlfriend. As Petitioner left the parking lot with his two passengers, the police arrived on the scene. Petitioner admitted during the hearing that it was wrong to let his mother leave the premises with him after he learned about her theft of merchandise. Petitioner's girlfriend subsequently returned to the department store to inquire about the boyfriend and other male friend of Petitioner's mother. Petitioner's girlfriend also went to the police station to determine whether the two men had been arrested. After she began to make these inquiries, Petitioner's girlfriend was arrested. About a month after the incident, a warrant was issued for Petitioner's arrest for grand theft. Petitioner turned himself in to the authorities as soon as he learned about the warrant. Petitioner's arrest for grand theft was based on a statement in a police report that merchandise valued at approximately $600 was stolen from the store on November 11, 1999. However, there is no persuasive evidence as to the actual value of merchandise stolen from the store. In regard to the charges against Petitioner for grand theft, Petitioner subsequently entered into a pretrial intervention agreement with the state attorney in the Seventh Judicial Circuit, in and for Volusia County, Florida, in Case No. 99-35807-CFAES. After successfully complying with the terms of the agreement, the state attorney issued a Notice of Completion of Pretrial Intervention and Nolle Prosequi in that case on March 12, 2001. Petitioner graduated from Bethune-Cookman College in July 2000. He earned a bachelor of science degree in criminal justice. On or about May 2, 2001, Petitioner applied for employment with Respondent as a senior juvenile detention officer. He applied for vacant positions at the Volusia County Regional Juvenile Detention Center in Volusia County, Florida, and the St. Johns River Juvenile Detention Center in St. Augustine, Florida. The position of senior juvenile detention officer requires caretaker/direct contact with juveniles. In Petitioner's employment application, he indicated that he had never had the adjudication of guilt withheld to a crime which was a felony or a first-degree misdemeanor. This was not a true statement because adjudication was withheld in Palm Beach County Circuit Court Case No. CJ-90-0281-JK for battery on a minor, which is a first-degree misdemeanor pursuant to Section 784.03, Florida Statutes. Petitioner signed the application, certifying the following in relevant part: I am aware that any omissions, falsifications, misstatements, or misrepresentations about may disqualify me for employment consideration and, if I am hired, may be grounds for termination at a later date . . . I certify that to the best of my knowledge and belief all of the statements contained herein and on any attachments are true, correct, complete, and made in good faith. By letter dated May 3, 2001, Petitioner advised Respondent's Inspector General that a background investigation would reveal Petitioner's 1990 conviction for battery on a minor as a lesser included offense of strong arm robbery, both of which are disqualifying offenses for employment with Respondent. The purpose of writing this letter was to request an exemption from employment disqualification. Respondent received this letter on or about May 9, 2001. On May 10, 2001, Petitioner signed a notarized application affidavit, which states as follows in pertinent part: I fully understand that in order to qualify as a Juvenile Justice direct care employee, I must comply with the provisions of Section 985.406, Florida Statutes, as follows: * * * 3. Not have been convicted of any felony or of a misdemeanor involving perjury or false statement, not have received a dishonorable discharge from any of the Armed Forces of the United States. Any person who, after October 1, 1999, pleads guilty or nolo contendere to or is found guilty of a felony or of a misdemeanor involving perjury or false statement shall not be eligible for employment or appointment as a direct care employee, not withstanding suspensions of a sentence or withholding of adjudication. * * * In addition, I attest to the following: Yes No I understand that by executing this document I am attesting that I have met the qualifications as specified and have provided documentation of proof of my qualifications to the above listed employing agency. Yes No I have read my employment application and it is true and correct, and all other information I will furnish in conjunction with my application is true and correct. NOTICE: This document shall constitute an official statement within the purview of Section 837.06, Florida Statutes, and is subject to verification by the employing agency and/or the Florida Department of Juvenile Justice. Any international [sic] omission when submitting application or false execution of this affidavit shall constitute a misdemeanor of the second degree and disqualify you from employment as a juvenile justice direct care employee. I hereby certify that to the best of my knowledge and belief, the information that I entered on this form is true. Petitioner signed this affidavit and circled the word "Yes" in the above referenced attestation. On May 10, 2001, Petitioner signed a form giving his consent for Respondent to perform background screening of Petitioner's criminal history, driver's license history, and delinquency reports (juvenile criminal history). The form clearly states that Respondent has access to all criminal records, even those which have been sealed or expunged. On May 10, 2001, Petitioner signed a form entitled Affidavit of Good Moral Character. In this affidavit, Petitioner acknowledged that his record contained "one or more of the disqualifying acts or offenses" listed in the affidavit. Specifically, Petitioner's conviction for battery on a minor in 1990 was a violation of Section 784.03, Florida Statutes. That statute was listed in the affidavit as a disqualifying offense. On or about May 21, 2001, Respondent completed the investigation of Petitioner's background. In addition to the 1999 conviction for battery on a minor, the investigation revealed Petitioner's arrests in 1999 for robbery and grand theft. By letter dated May 25, 2001, Respondent advised Petitioner that he could request a desk review of his background screening application. The letter requested Petitioner to submit the desk review request form and any supporting documentation within 30 days. Specifically, Respondent requested Petitioner to furnish the following in pertinent part: CERTIFIED police reports and/or arrest reports and CERTIFIED judgement/disposition from the Clerk of Courts for disqualifying criminal offense, as well as for any other criminal offenses to which the [sic] you have either pled guilty or no contest or been found guilty. If these documents cannot be obtained, you will need to present certified statements from the courts and law enforcement agencies indicating the records is [sic] not available or does [sic] not exist. Offense Date Authority Arrest 1: Robbery, Reduced 1/16/90 Juvenile to Battery on Adj. W/H Minor A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.) And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well being of juveniles. A statement as to whether you have been involved in any other criminal offenses either prior to subsequent to the commission of the disqualifying offense. . . . Petitioner received this letter on or about June 5, 2001. Petitioner subsequently sent Respondent a form dated June 5, 2001, seeking a desk review of his request for an exemption from disqualification based on the fact that he had clear and convincing evidence to support a reasonable belief that he was of good moral character. Respondent received Petitioner's request on or about June 19, 2001. By letter dated June 13, 2001, Petitioner advised Respondent as follows in pertinent part: Since the commission of the disqualifying offense in my middle school years, I have not been convicted or had adjudication withheld against me on any charges. This letter did not refer to Petitioner's arrests in 1999. By letter dated June 13, 2001, Petitioner provided Respondent with a detailed explanation of the circumstances surrounding the disqualifying offense. Petitioner did not reference his 1999 arrests in this letter. By letter dated June 13, 2001, Petitioner advised Respondent as to his qualifications and desire to work with juveniles. Petitioner did not reference his 1999 arrests in this letter. At Petitioner's request, three professors at Bethune- Cookman College sent Respondent letters of reference for Petitioner. The Mayor of Daytona Beach and Petitioner's then current employer also wrote letters in support of Petitioner's application for employment with Respondent. At least one of the Bethune-Cookman College professors was aware of Petitioner's criminal history, including his arrests in 1999. At some point in time, Petitioner provided Respondent with certified copies of the 1990 Order and Order Terminating Supervision relating to the disqualifying offense. Petitioner also furnished Respondent with copies of the 1999 Announcement of No Information relating the robbery charge and the 1999 Notice of Completion of Pretrial Intervention and Nolle Prosequi relating to the grand theft charge. Additionally, Petitioner provided Respondent with a copy of the police report relating to the grand theft charge. Petitioner never provided Respondent with a written statement explaining his arrests in 1999. By memorandum dated June 20, 2001, Respondent's staff requested Respondent's Inspector General to review Petitioner's background screening file and indicate whether Petitioner's request for an exemption was granted or denied. The Inspector General denied Petitioner an exemption. By letter dated June 21, 2001, Respondent advised Petitioner that his request for exemption from employment disqualification was denied. Petitioner was 25 years old at the time of the hearing. He is currently working as a licensed security guard.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That Respondent enter a final order finding that Petitioner is entitled to an exemption from disqualification. DONE AND ENTERED this 28th day of January, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2002. COPIES FURNISHED: Shawnee S. Lawrence, Esquire 1010 West 4th Street Rivera Beach, Florida 33404 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
