Findings Of Fact The Respondent, Christopher Knowles, was employed at the Broward Regional Juvenile Detention Center in Fort Lauderdale, Florida, during the period of time prior to July 19, 1981, up until February 4, 1983. On July 19, 1981, the Respondent was injured during the course of his employment when he tripped over one of the center's detainees while on the athletic field attempting to break up a fight between detainees. The Respondent received medical treatment and was placed on disability leave until August 10, 1981, when he returned to work and was given a light-duty assignment. On August 17, 1981, the Respondent was returned to a full-duty status, but he was still being treated by a physician, and until November 22, 1982, he worked irregularly and took sick leave when not working. On November 22, 1982, the Respondent told his supervisor that he had been released by his doctor to return to work, but that he did not feel that he was yet able to return to work. The Respondent at this time was required to obtain a physician's authorization for continued sick leave, or else return to work. When the Respondent did not return to work, he was advised on December 3, 1982, that he must contact his supervisor by December 10 or report to work by this date, or a recommendation would be made for termination of his employment. When the Respondent did not respond, he was sent a letter on December 21, 1982, directed to the address which had been furnished by the Respondent to the personnel office, repeating the requirement that he contact his supervisor or report to work. As a result of this letter, the Respondent went to the detention center on December 30, 1982, and repeated his contention that he was not yet able to return to work. In January of 1983 the personnel office of the detention center secured a statement dated January 17, 1983, from the Respondent's physician advising that the Respondent was able to return to work on November 22, 1982. On January 18, 1983, the Respondent was again told by letter sent certified mail, return receipt requested, that he must return to work, and he was given until January 24, 1983, to do so or, he was informed, that he would be terminated. This letter also advised the Respondent that his physician's statement had been secured stating that he had been fit for duty since November 22, 1982. The Respondent did not respond to this letter. On February 2, 1983, the Respondent was advised by letter that his employment was terminated as of February 4, 1983, due to abandonment by the Respondent. On February 4, 1983, the Respondent went to the office of his supervisor at the detention center, complaining that he did not abandon his job, and asking that his termination be reversed. This request was declined. The detention center needed an employee in the Respondent's position and could not hire someone as long as the Respondent was employed in this position. The Respondent contends that he fears that he might become reinjured if he should return to work, although he admits that his physician released him from further treatment and advised him to return to work on November 22, 1982. The Respondent also admits that he is not now under the care of a physician, and has not been examined by a doctor since November of 1982.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter an Order finding that the Respondent, Christopher Knowles abandoned his position of employment at the Broward Regional Juvenile Detention Center, and that he be discharged effective February 4, 1983. DONE and RECOMMENDED this 14 day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS, 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 14 day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher Knowles 3530 North West 18th Place Fort Lauderdale, Florida 33311 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Nevin Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
The Issue The issue in 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 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.
Findings Of Fact In August 1986, petitioner was employed as a Detention Care Worker I at the Manatee Regional Juvenile Detention Center. On August 6, 1986, petitioner received a copy of HRS Pamphlet 60-1, entitled "Employee Handbook." The HRS policy concerning absences is set forth in the handbook as follows: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. On May 4, 1987, petitioner received a written reprimand for an absence without authorized leave which occurred on April 9, 1987. Petitioner was reminded that he had to call his immediate supervisor for approved leave prior to the beginning of his shift. On May 4, 1987, petitioner also received an oral reprimand for his excessive absences. By May 28, 1987, petitioner had accumulated 41 hours of leave without pay that were due to absences from work that were not approved in advance. Ms. Clark, petitioner's Shift Supervisor, held a conference with petitioner to discuss the problems he was having. As a result of the discussion with petitioner, Ms. Clark decided to retroactively grant petitioner leave with pay, or annual leave, for all of the hours of absences for which he had annual leave available. After using all of petitioner's accumulated annual leave, petitioner still had eight hours of "short time," which was treated as leave without pay. On May 29, 1987, petitioner was advised by written memorandum from John Simpson, the Assistant Superintendent of the facility, that petitioner had to personally call his shift supervisor for any future leave requested. He was also advised that such request might not be approved and that he should be prepared to report to his assigned shift. On June 12, 1987, petitioner did not go to work. He did not request leave, but his wife called to say that he would not be at work. The Manatee Juvenile Detention Center is a secured facility. Detention care workers must be present at the facility at all times and work in shifts. Due to the nature of the work, it is vital that a detention care worker notify his supervisor in advance of any proposed absence so that arrangements can be made for a substitute to take his shift. Petitioner appeared for work as scheduled at 11:00 p.m. on June 18, 1987, and worked until 7:00 a.m., June 19, 1987. He was scheduled to work again at 11:00 p.m. on June 19, 1987. He did not call, and he did not report for work. He also was scheduled to work the night of June 20th. At about 6:00 p.m. on June 20, he stopped by the facility to say that his wife was having a baby. He did not report to work that night. On June 21, petitioner called Ms. Clark at home at about 9:50 p.m. He said that he was at the hospital with his wife and baby. He indicated that his wife and baby were fine, although the baby was about five weeks premature. Petitioner testified that he asked Ms. Clark for five days off and that Ms. Clark agreed. Ms. Clark testified that petitioner asked that he be given leave for the night of June 21. Since petitioner did not have annual leave accumulated, the leave had to be without pay. A shift supervisor is not authorized to grant over one day of leave without pay. Ms. Clark was a credible witness, she clearly recalled the conversation she had with the petitioner, and her testimony is accepted. It is therefore found that petitioner was granted leave for the shift beginning at 11:00 p.m. on June 21 and ending at 7:00 a.m. on June 22, 1987. No additional leave was authorized. Petitioner was scheduled to work the shift beginning at 11:00 p.m. on June 22, 1987. He did not appear for work and did not call. Petitioner was not scheduled to work the nights of June 23 or June 24, 1987. On Thursday, June 25, 1987, petitioner was scheduled to work the 11:00 p.m. shift. He did not call and did not report to work. On Friday night, June 26, 1987, petitioner was scheduled to work. He did not call and did not report to work. On June 27, at about 5:30 p.m., petitioner called Ms. Clark to inform her that he was returning to work. Ms. Clark told petitioner that he needed to talk to Mr. Simpson. Mr. Simpson went to the facility to meet with petitioner. Petitioner did not report to work. On June 28, 1987, petitioner went to work. He was told that he had to see Mr. Simpson. Mr. Simpson gave petitioner the termination letter which advised petitioner that he had been absent from work on June 22, 25 and 26, 1987, without authorization, and that he was deemed to have resigned from his position as Detention Care Worker I effective 7:00 a.m. on June 27, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services and finding that Calvin Sloan abandoned his position as Detention Care Worker I and resigned from the Career Service. DONE AND ENTERED this 18th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. COPIES FURNISHED: Mr. Calvin Sloan 1207-25th Street East Palmetto, Florida 33561 Frederick Wilk, Esquire Department of Health and Rehabilitative Services District VI 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether an alleged policy of the Respondent constitutes an unpromulgated "rule" which is an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, David Ansgar Nyberg and Walter William Harris, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are housed in Marion Correctional Institution. The Petitioners are subject to the rules and policies of the Respondent. The Petitioners were sentenced pursuant to Section 775.082(1), Florida Statutes. The Petitioners were both denied a requested transfer from Marion Correctional Institution to Zephyrhills Correctional Institution, a level 5A institution. The Petitioners have standing to institute these proceedings. The Respondent. The Respondent, the Department of Corrections, denied a recommendation that the Petitioners be transferred from Marion Correctional Institution to Zephyrhills Correctional Institution. The Respondent, through employees of the Respondent located at its central office (including Fred Roesel and James G. Mitchell), decides where inmates are housed and makes decisions concerning requests for transfers between institutions. The Alleged Policy. In the Initial Complaint filed in case number 91-6189RU and in the Initial Petition filed in case number 91-7540RU, and at the commencement of the formal hearing, Mr. Nyberg indicated that the alleged policy which he believes exists and that the Petitioners are challenging in this proceeding is essentially the following: Any inmate sentenced to prison in Florida pursuant to Section 775.082(1), Florida Statutes, is prohibited from being housed in any institution of the Respondent classified as a level 5A or lower numbered institution regardless of the inmates custody classification, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. Section 775.082(1), Florida Statutes, provides the following: A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death. The Evidence Failed to Prove the Existence of the Alleged Policy. The evidence failed to prove that the precise alleged policy challenged by the Petitioners as stated in finding of fact 8 is an existing policy of the Respondent. The institutions in which inmates are housed by the Respondent are classified as level one through level seven institutions. Generally, the higher the level of an institution, the greater the security. There are four custody grades for inmates: minimum, medium, close and maximum. An inmate's classification determines the security risk of that particular inmate. In determining which institution an inmate should be housed in, the Respondent has a general policy, as specified by Chapter 33-6, Florida Administrative Code, to consider many factors, including custody grades, the offense for which sentenced, the type of facility that is recommended and the medical grade of the inmate. It is not the policy of the Respondent to exclude an inmate from being housed in a level 5 or lower level institution without taking into account the inmate's custody grade merely because the inmate was sentenced pursuant to Section 775.082(1), Florida Statutes. The Respondent apparently has a policy of not placing inmates in a level 5A institution if, among circumstances not relevant here, the following circumstances exist: The inmate has been classified as close custody grade; and The inmate is serving a life sentence with a mandatory twenty-five years. The apparent policy set out in finding of fact 15 is contained on page 23 of a document referred to as the "Custody Classification Instructions." The apparent policy as set out in the Instructions, unlike the policy challenged by the Petitioners, takes into account, and is based upon, the custody grade of the inmate. Therefore, the apparent policy set out in finding of fact 15 is inconsistent with the policy challenged by the Petitioners and supports a conclusion that the policy challenged by the Petitioners does not exist. An inmate who has been sentenced pursuant to Section 775.082(1), Florida Statutes, may be housed in a level 5 or lower level institution as long as the inmate is not classified as close custody. The reason for not housing close custody inmates who meet any of the conditions set out on page 23 of the Custody Classification Instructions in a level 5 or lower level institution is that close custody inmates have not been assigned release dates and, therefore, constitute a greater security risk. The evidence failed to prove that the Custody Classification Instructions are contrary to, or inconsistent with, the provisions of Chapter 33-6, Florida Administrative Code. Denial of Mr. Nyberg's Recommended Transfer. It was recommended by personnel at Marion Correctional Institution that Mr. Nyberg be transferred to Zephyrhills Correctional Institution. Mr. Nyberg was classified as close custody at the time the transfer request was made. The recommended transfer of Mr. Nyberg was denied by the Respondent through its Classification Department in Tallahassee, Florida. In light of the fact that Mr. Nyberg was sentenced pursuant to Section 775.082(1), Florida Statutes, and was classified in a medium custody grade at the time his transfer request was denied, Mr. Nyberg apparently concluded that the denial of his transfer was based upon the challenged policy. The evidence failed to prove this conclusion is correct. The evidence proved that Mr. Nyberg's transfer was denied after consideration of the length of time he has been in Marion Correctional Institution, the location of his current institution, the recommended time between transfers and the facility recommended. The evidence failed to prove that Mr. Nyberg's transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody grade. Denial of Mr. Harris' Transfer. The Respondent also denied a requested transfer to Zephyrhills Correctional Institution of Mr. Harris. A teletype from the Tallahassee office of the Respondent indicated the following concerning the denial of Mr. Harris' transfer: Transfer to Zephyrhills was disapproved 8-14-91, ACI is now a Category 5-A, cannot house life with 25- mandatory. This explanation was also included as the response from Mr. Harris' classification officer, Simon Ponder, on the form DC-3005 (the request for transfer form) (Petitioner's exhibit 2) filed by Mr. Harris. Mr. Ponder, who is not involved in formulating policies of the Respondent, assumed during the formal hearing that the rational given for denying Mr. Harris' transfer was the same rational for denying Mr. Nyberg's transfer. Mr. Ponder did not testify that he had any personal knowledge of the reason why Mr. Nyberg's transfer was denied, however. At best the evidence concerning Mr. Harris' denied transfer tends to prove that Mr. Harris' transfer was denied because he is serving a life sentence with a mandatory twenty-five years and because he is classified as close custody. Therefore, the denial of Mr. Harris' requested transfer was not made without regard to his custody classification which is an essential factor in the alleged policy challenged by the Petitioners. The evidence failed to prove that Mr. Harris' transfer was denied because of the alleged policy challenged by the Petitioners: his transfer was not denied solely because he was sentenced pursuant to Section 775.082(1), Florida Statutes and without regard to his custody status. Denial of David Ray Martin's Transfer. The Respondent denied a transfer to Zephyrhills Correctional Institution of David Ray Martin, another inmate. A teletype was sent to the Tallahassee office of the Respondent by Charles Manning, a correctional probation officer II, in which Mr. Manning indicated the following concerning the Mr. Martin's transfer: Subject was recommended for Zephyrhills CI for a good adjustment transfer. Please note that he has a 25-year mandatory; and, therefore, does not meet the criteria for a Category 5-A institution. Please divert to Polk CI 580, and excuse the error. Thanks, Chuck. Mr. Manning, who is not involved in establishing policy for the Respondent, admitted at the formal hearing that he had incorrectly assumed when he sent the teletype quoted in finding of fact 30 that the Respondent had such a policy. Mr. Manning's incorrect assumption concerning the policy of the Respondent was probably based upon the language of the Custody Classification Instructions concerning inmates classified as close custody who are serving a life sentence with a mandatory twenty-five years. Mr. Manning apparently confused the policy which may be evidenced in the Custody Classification Instructions with the alleged policy at issue in this proceeding. Conclusion. The Petitioners have failed to prove that the Respondent has a policy that inmates who are sentenced pursuant to Section 775.082(1), Florida Statutes, may not be housed in a level 5 or lower numbered level institution without regard to the custody classification of the inmate, the amount of time the inmate has served, the inmate's behavior or the recommendation of the superintendent of the institution the inmate is housed in. At best the Petitioners presented evidence which may support a finding that the Respondent has a policy that inmates who are classified as close custody and who are serving a life sentence with a mandatory twenty-five years may not be housed in a level 5A institution. That is not the policy being challenged by the Petitioners, however, and no such finding of fact is necessary to dispose of these cases.
The Issue The issue is whether Respondent assessed Petitioner for secure juvenile detention care for the 2007-2008 fiscal year in a manner that implements Section 985.686, Florida Statutes (2007), and Florida Administrative Code Rule 63G-1.1
Findings Of Fact Respondent is the state agency responsible for administering the cost sharing requirements in Section 985.686 for juvenile detention care. Petitioner is a non-fiscally constrained county2 subject to the cost sharing requirements. The relevant statutory backdrop affects the findings in this proceeding. Subsection 985.686(1) requires Petitioner and Respondent to share the costs of "financial support" for "detention care" for juveniles who reside in Hillsborough County, Florida (the County), and are held in detention centers operated by Respondent. Subsection 985.686(3) requires Petitioner 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 Subsection 985.686(2)(a) to mean secure detention. Secure detention is defined in Subsection 985.03(18)(a), for the purposes of Chapter 985, to include custody "prior to" adjudication or disposition as well as custody "prior to" placement.3 Detention centers are legally unavailable to circuit courts for post-disposition placement (residential placement). Post-disposition care of juveniles in detention centers is limited to juveniles who are waiting for residential placement. The statutory reference in Subsection 985.03(18)(a) to placement is construed in this proceeding to mean residential placement. Thus, secure detention means custody in a detention center for both predisposition care prior to adjudication or final court disposition, and post-disposition care after adjudication or disposition but prior to residential placement. A literal reading of Subsections 985.03(18)(a), 985.686(1), and 985.686(2)(a) may foster ambiguity, at least for a stranger to the workings of juvenile detention. If Subsection 985.686(1) requires Petitioner and Respondent to share the costs of secure detention and secure detention includes custody prior to adjudication or disposition, a literal interpretation arguably could require Respondent to share the costs of secure detention prior to adjudication or final disposition. Factual findings in this proceeding are not based on a literal interpretation of the definition of secure detention in Subsections 985.686(2)(a) and 985.03(18)(a). Rather, the findings are based on an interpretation of secure detention that is consistent with the statutory requirement in Subsection 985.686(3) for Petitioner to pay the costs of secure detention during predisposition care and for Respondent to pay the costs of secure detention during post-disposition care. The annual legislative "appropriation" for the counties' share of detention care is actually an account payable by the counties rather than an appropriation of funds. For the 2007- 2008 fiscal year,4 the legislature "appropriated" a total of $125,327,667.00 for detention care. However, only $30,860,924.00 of the total amount was actually appropriated from general revenue. The general revenue funds are appropriated for costs that Respondent must pay, including amounts for fiscally constrained counties. The Legislature identified $101,628,064.00 of the total appropriation as the counties' aggregate share of detention costs. Negative entries in the appropriation reduce the total amount to $125,327,667.00 The practical realities of juvenile detention care complicate the allocation of costs between predisposition and post-disposition care. Juveniles are not supposed to remain in detention centers very long while they wait for residential placement. However, juveniles with exceptional needs, such as mental health needs, may remain in detention centers for a longer period of time due to the limited availability of appropriate residential placement facilities. A room in a detention facility may be occupied simultaneously by juveniles in predisposition care and juveniles in post-disposition care waiting for residential placement (dual- use occupancy). Dual-use occupancy complicates the calculation of shared costs between the counties and the state. Subsection 985.686(3) requires Respondent to develop an accounts payable system to allocate the costs of secure detention for predisposition care. Respondent administers the statutory cost sharing requirements through a prospective assessment and retroactive reconciliation system. Prospective assessments for each fiscal year are based on actual costs during the previous year. Petitioner pays the prospective assessment monthly, and, at the end of each fiscal year, Respondent performs an annual reconciliation to determine whether actual costs during the current fiscal year were more or less than the prospective assessment at the beginning of the fiscal year. Sometime after the end of each fiscal year, Respondent either credits or debits Petitioner for any differences between the prospective assessment and actual costs determined in the annual reconciliation. Subsection 985.686(3) requires Petitioner to pay for the costs of secure detention in the County for the "period of time" juveniles are in predisposition care. No statute defines the phrase "period of time." Subsection 985.686(10) authorizes Respondent to adopt rules to administer Section 985.686. Rule 63G-1.004(1)(c) implicitly defines the statutory reference to a "period of time" in predisposition care to mean "service days." Rule 63G-1.004 also prescribes the methodology to be used in calculating Petitioner's share of the costs for secure detention during the period of time required for predisposition care in the County. Respondent must first identify all juveniles in predisposition care based upon usage during the preceding fiscal year. Second, Respondent must match each placement record with the corresponding identification code. Third, Respondent must calculate the "service days" in predisposition care. Finally, Respondent must divide the number of "service days" Petitioner used for predisposition care in the County by the service days used by all counties to determine the percentage of the counties' costs for predisposition care that Petitioner owes. The term "service days" is not defined by statute or rule. Respondent defines service days to mean "utilization" days. If, for example, 10 individuals occupy one detention room in a facility during any part of a day, 10 utilization days have occurred during one calendar day. Respondent uses utilization days to calculate the statutory period of time for predisposition care and post-disposition care. If the 10 utilization days in the preceding example were to include equal dual-use occupancy, Respondent would count five utilization days for predisposition care and five utilization days for post-disposition care. Petitioner disputes the utilization days that Respondent calculated. However, that dispute is the subject of a companion case identified by DOAH Case No. 07-4432 and is beyond the scope of this proceeding. Respondent determined there were 709,251 utilization days for pre and post-disposition care. The total consisted of 579,409 utilization days for the counties' predisposition care and 129,842 utilization days for post-disposition care. Respondent allocated 47,714 utilization days to Petitioner. Rule 63G-1.004(2) requires Respondent to divide the 47,714 utilization days allocated to Petitioner by the 579,409 utilization days allocated to all counties. The mathematical quotient of that calculation is .08234. The rule requires Respondent to multiply the cost of detention by 8.234 percent. The "cost of detention" means the counties' cost of detention in the amount of $101,628,064.00. The mathematical product of multiplying $101,628,064.00, by .08234 is $8,368,054.79. Respondent exercised discretion to adopt a methodology that is inconsistent with the methodology prescribed by rule, in violation of Subsection 120.68(7)(e)2. Respondent defined the cost of detention to include the total appropriation of $125,327,667.00. Respondent is legally required to pay $30,860,924.00 of the $125,327,667.00, including $6,329,328.00 allocable to fiscally constrained counties. Respondent divided the total appropriation of $125,327,667.00 by 709,251 utilization days to arrive at a per diem rate of $176.70 for all detention care. Respondent then multiplied the per diem rate by Petitioner's 47,714 utilization days and proposed a gross assessment in the amount of $8,400,165.73.5 Respondent reduced the gross assessment after adjustments and proposed a net assessment in the amount of $8,320,440.73, which Petitioner paid.6 The actual gross assessment of $8,400,165.73 exceeded the authorized gross assessment of $8,368,054.79 by $32,110.94. Any adjustments required to determine a net assessment should be made to the authorized gross assessment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order assessing Petitioner for the costs of predisposition care in the County using the methodology prescribed by rule, including costs of detention in the aggregate amount of $101,628,064.00, and crediting Petitioner for the amount of any overpayment. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of March, 2008.
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
