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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Ronald Winkfield was employed as a detention care worker with the Hillsborough Regional Juvenile Detention Center in February of 1982, and was assigned to work the midnight to 8:00 A.M. shift. On or about June 8, 1981, Mr. Winkfield was involved in an automobile accident, received injuries and returned to work on or about August 17, 1981. He claims that he still suffers severe headaches as a result of the accident and that his work with delinquents caused him mental strain. The logs of the Detention Center illustrate that Mr. Winkfield missed four days of work during the first week of February, and called in sick on the first two of those four days. On February 7, 8, 9 and 10, 1982, Mr. Winkfield again did not appear for duty and did not call in sick on any of those days. Employees of the Detention Center working the midnight to 8:00 A.M. shift were instructed to call in before 6:00 P.M. if they were not going to report for work that night. Petitioner admits that he did not report for work on February 7, 8, 9 or 10, 1982, and that he did not call in on those dates to report his absence. He explains that he did not call in because an employee told him during the first week of February that she would not accept his calls unless he brought in a doctor's certificate stating that he was unable to work. About 11:45 P.M. on February 10, 1982, Mr. Winkfield was seen at a doughnut shop getting out of a Tampa Tribune truck. Petitioner was employed by the Tampa Tribune to deliver papers in February of 1982. A week or two before February 7, 1982, a personnel officer discussed with Mr. Winkfield the procedure for obtaining time off without pay. Mr. Winkfield never formally applied for leave without pay. By letter dated February 12, 1982, the Assistant Supervisor of the Hillsborough Regional Juvenile Detention Center advised Mr. Winkfield that he was deemed to have abandoned his position and to have resigned from the Career Service because of his failure to report to work for four consecutive workdays without authorized leave.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered concluding that petitioner Ronald Winkfield has abandoned his position of employment and resigned from the Career Service. Respectfully submitted and entered this 7th day of October, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of October, 1982. COPIES FURNISHED: Ronald Winkfield 5914 82nd Street Tampa, Florida 33619 Amelia M. Park, Esquire District VI Legal Counsel Department of HRS 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to the Proposed Rules of the Department of Juvenile Justice (“Department” or “DJJ”) 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017 (the “Proposed Rules”). The main issue in this case is whether the Proposed Rules are an invalid exercise of delegated legislative authority in that the Proposed Rules enlarge, modify, or contravene the specific provisions of law implemented, section 985.686, Florida Statutes; are vague; and/or are arbitrary and capricious. Petitioners also argue that the Proposed Rules impose regulatory costs that could be addressed by the adoption of a less costly alternative. Finally, Petitioners assert that the Proposed Rules apply an invalid interpretation of the General Appropriations Act (“GAA”) for Fiscal Year (“FY”) 2014-15 by interpreting the GAA as a modification to substantive law, contrary to the Constitution of the State of Florida.
Findings Of Fact The Parties The Department is the state agency responsible for administering the cost-sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. The challenging counties are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost-sharing requirements of section 985.686. The challenging counties are substantially affected by the application of Florida Administrative Code Rules 63G-1.010 through 63G-1.018, including the Proposed Rules. It was stipulated that the challenging counties’ alleged substantial interests are of the type these proceedings are designed to protect. Petitioner, Florida Association of Counties (“FAC”), is a statewide association and not-for-profit corporation organized and existing under chapter 617, Florida Statutes, for the purpose of representing county government in Florida and protecting, promoting, and improving the mutual interests of all counties in Florida. All of the 67 counties in Florida are members of FAC, and the Proposed Rules regarding Detention Cost Share affect all counties. Of the 67 counties in Florida, 35 are considered non- fiscally constrained, and are billed by the Department for their respective costs of secure detention care, as determined by the Department; 27 of these counties are participating alongside FAC in these proceedings. The subject matter of these proceedings is clearly within FAC’s scope of interest and activity, and a substantial number of FAC’s members are adversely affected by the Proposed Rules. The challenging counties, and FAC, participated in the various rulemaking proceedings held by the Department related to the Proposed Rules, including rule hearings held on June 6, 2014, and August 5, 2014. Rule Making The initial version of the Proposed Rules was issued, and a Rule Development Workshop was held on March 28, 2014. Numerous challenging counties submitted comments on the Proposed Rules either prior to, or at the Rule Development Workshop. On May 15, 2014, the Department published Proposed Rules 63G-1.011, 1.013, 1.016, and 1.017 in the Florida Administrative Register. In that Notice, the Department scheduled a hearing on the Proposed Rules for June 6, 2014. On June 6, 2014, a rulemaking hearing was held on the Proposed Rules. Numerous challenging counties submitted comments to the Proposed Rules either prior to, or at the hearing. A supplemental rulemaking hearing was held on August 5, 2014. Again, numerous challenging counties submitted comments regarding the Proposed Rules either prior to, or at the supplemental rulemaking hearing. On September 5, 2014, the Department advertised its Notice of Change as to the Proposed Rules. Thereafter, all parties to this proceeding timely filed petitions challenging the Proposed Rules. A statement of estimated regulatory costs (“SERC”) was not originally prepared by the Department. In the rulemaking proceedings before the Department, Bay County submitted a good faith written proposal for a lower cost regulatory alternative. In its proposal, Bay County asserted that the Department’s own stipulations signed by the agency are competent substantial evidence that the agency has a “less costly alternative” to the approach taken in the Proposed Rules, by assessing the costs of all detention days for juveniles on probation status to the state, and not the counties.2/ As Bay County noted in the proposal, the Department previously had agreed to assume all of the cost of detention days occurring after a disposition of probation. Following the June 6, 2014, hearing, the Department issued a SERC for the Proposed Rules. Ultimately, the Department rejected the lower cost regulatory alternative proposed by the counties “because it is inconsistent with the relevant statute (section 985.686, F.S.), fails to substantially accomplish the statutory objective, and would render the Department unable to continue to operate secure detention.” The Implemented Statute The Proposed Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care “for juveniles for the period of time prior to final court disposition.” § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of “its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition,” based on “the prior use of secure detention for juveniles who are residents of that county, as calculated by the department.” § 985.686(5), Fla. Stat. (emphasis added). Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, “[a]ny difference between the estimated costs and actual costs shall be reconciled.” Id. The Department is responsible for administering the cost-sharing requirements and is authorized to adopt rules as set forth in section 985.686(11). In general, the Proposed Rules provide definitions including for pre and postdisposition, provide for calculating the estimated costs, for monthly reporting, and for annual reconciliation. Specific changes will be discussed in detail below. The complete text of the Challenged Rules, showing the proposed amendments (in strike-through and underlined format) is attached hereto as Appendix A. The Prior Rule Challenge On July 16, 2006, the Department promulgated Florida Administrative Code Rules 63G-1.002, 63G-1.004, 63G-1.007, and 63G-1.008, among others, setting forth the definitions and procedures for calculating the costs as between the state and the various counties. These rules were repealed as of July 6, 2010, and in their place, the Department adopted rules 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017. Although the previous rules defined “final court disposition,” for purposes of determining the counties’ responsibility for providing the costs of secure detention, the 2010 rules replaced this with a definition of “commitment,” so that the state was only responsible for days occurring after a disposition of commitment. This had the effect of transferring the responsibility for tens of thousands of days of detention from the state to the counties. In addition, the 2010 rules failed to provide a process by which the counties were only charged their respective actual costs of secure detention. In 2012, several counties challenged rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017 as an invalid exercise of delegated legislative authority because these rules replaced the statutory dividing line for the costs of secure detention with “commitment,” and because the rules resulted in the overcharging of counties for their respective actual costs of secure detention. On July 17, 2012, a Final Order was issued by the undersigned which agreed with the counties and found that the rules were an invalid exercise of delegated legislative authority. Okaloosa Cnty., et al. v. Dep’t of Juv. Just., DOAH Case No. 12-0891RX (Fla. DOAH July 17, 2012). On June 5, 2013, this ruling was affirmed on appeal. Dep’t of Juv. Just. v. Okaloosa Cnty., 113 So. 3d 1074 (Fla. 1st DCA 2013) (“2012 Rule Challenge”). The Department’s Response to the 2012 Rule Challenge No changes to the Department’s practices were made after the Rule Challenge Final Order was released in 2012. Rather, changes were not made until after the Rule Challenge decision was affirmed on appeal in June 2013. Shortly after the opinion was released by the First District Court of Appeal, the Department modified its policies and practices to conform with its interpretation of the requirements of that opinion, and informed the counties that “all days for youth in detention with a current placement of probation or commitment belong to the state.” At this time, the Department determined that “by their nature all VOPs [violations of probation] are attached to charges that have a qualified disposition and thus are a state pay.” In response to the appellate court decision, the Department implemented and published to the counties its interpretation that the counties were only responsible for detention days occurring prior to a final court disposition, and were not responsible for detention days occurring after a juvenile has been sentenced to commitment or probation, or is waiting for release after a dismissal of the charge. A statement to this effect was developed by the Department with input from multiple staff, and was to be a “clear bright line” setting “clear parameters” and a “final determination” that the Department could share with those outside the agency. However, no rules were developed by the Department at this time. In July 2013, the Department revised its estimate to the counties for Fiscal Year (“FY”) 2013-14 from what had been issued (previously). This revised estimate incorporated the Department’s analysis that included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed. The revised estimate also excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. At the time of the 2012 Rule Challenge, several counties had pending administrative challenges to the Department’s reconciliations for FYs 2009-10, 2010-11, and 2011-12. In September 2013, the Department issued recalculations of its final reconciliation statements to the counties for FYs 2009-10, 2010-11, and 2011-12. The recalculations were based upon the Department’s revised policies and practices and included in the state’s responsibility any detention days for youths in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and similarly excluded detention days resulting from a new law violation of probation. This resulted in large overpayments from the non-fiscally constrained counties to the state for these fiscal years. These recalculations were not merely an internal exercise, but rather were intended to notify the counties what they had overpaid for the fiscal years at issue, and were published and made available to the counties and public at large on the Department’s website. In December 2013, the Department entered into stipulations of facts and procedure to resolve three separate administrative proceedings related to final reconciliation amounts for FYs 2009-10, 2010-11, and 2011-12. Those stipulations of facts and procedure included the following definitions: The parties agree that “Final Court Disposition” as contained in section 985.686, Florida Statutes, and based on the decision of the First District Court of Appeal, means a disposition order entered by a court of competent jurisdiction, including an order sentencing a juvenile to commitment to the Department, or other private or public institution as allowed by law, placing the juvenile on probation, or dismissing the charge. The parties further agree that a “Pre- dispositional Day” means any secure detention day occurring prior to the day on which a Final Court Disposition is entered. A pre- dispositional day does not include any secure detention day after a juvenile has been sentenced to commitment or placed on probation, or is waiting for release after dismissal of a charge. (Petitioner’s Ex. 26) In addition to the above stipulations, the Department also stipulated to its recalculated amounts for each of these years, resulting in large overpayments from the counties. However, the Department refused to provide credits for these overpayment amounts. In November and December 2013, the Department issued a final reconciliation statement and revised final reconciliation statement to the counties for FY 2012-13, which included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and likewise excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. Under the Department’s reconciliation statement for FY 2012-13, the counties were collectively funding approximately thirty-two percent (32%) of the costs of secure juvenile detention. The Department also submitted its legislative budget request for FY 2014-15 in October 2013. This legislative budget request was based on the Department’s independent judgment as required by sections 216.011 and 216.023, Florida Statutes,3/ and excluded from the counties’ collective responsibility all detention days relating to a violation of probation, including for a new substantive law violation. The request provided that “the department may only bill the counties for youth whose cases have not had a disposition either to commitment or probation.” The request also notes a shift in the counties’ collective obligations from 73 percent of the total costs to 32 percent of these costs “in order to bring the budget split in line with the June 2013 ruling by the First District Court of Appeal.” Under this interpretation, the Department projected a $35.5 million deficiency in its budget for FY 13-14 and requested an $18.4 million appropriation for detention costs from the Legislature. This request was funded in the General Appropriations Act for 2014-15. The Department did not ask for additional funding for past years that had been challenged by the counties. At this same time, a projection for the deficit for FY 2014-15 was developed by the Department staff based on the same interpretation of the state’s responsibility for detention days. There was no objection from the Department’s Secretary or the Governor’s Office to this interpretation of the state’s responsibility. Change in Interpretation Re New Law Violation Fred Schuknecht, then - Chief of Staff of the Department, testified that in response to the opinion of the First District Court of Appeal in June 2013, the Department adopted a broad interpretation of the ruling that final court disposition meant commitment, and also included all secure detention days incurred by probationers as postdisposition days. This included detention days for youths already on probation who committed new offenses and were then detained as a result of the new offense or because of the violation of probation resulting from the commission of the new offense. During the budgeting process for the 2014-15 Fiscal Year, the Department altered its interpretation of the 2012 Rule Challenge decision, and its newly-established practice relating to payment for all detention days involving probationers. The Department now proposes, through the challenged rules, to shift to the counties the responsibility for detention days occurring after a final court disposition of probation where there is a new law violation. Although the challengers assert that the changed interpretation was driven by the budget proposal submitted by the Governor’s Office in January 2014 (which did not utilize the Department’s prior interpretation) the Department specifically contends that it did not change its official position on this interpretation until the adoption of the state budget by the General Appropriations Act (GAA) in June 2014. While the Department stated it made its initial broad interpretation because it was “under the gun” to issue its cost sharing billing for FY 2013-2014 within two weeks of the appellate opinion, the Department continued to assert that interpretation in September 2013, when it published recalculations for FYs 2009-2010, 2010-2011, 2011-2012. Further, Mr. Schuknecht conceded that this interpretation had not changed at the time the Department’s legislative budget request was submitted in October 2013, or in November and December 2013, when the Department issued the reconciliation and revised reconciliation for FY 2012-2013. Likewise, this interpretation formed the basis for the stipulations signed by the counties and Department in December 2013. At hearing, testimony established that the Department’s interpretation that the state was responsible for all days of detention for probationers was formed after frequent discussions on this topic and with input from multiple staff involved in cost sharing, including Mr. Schuknecht (Director of Administration at that time), Vickie Harris (Budget Director), Mark Greenwald (Director of Research and Planning), the Chief of Staff, Deputy Secretary, the legal team, as well as the Department’s Secretary. For FY 2014-15, the Executive Office of the Governor proposed a recommended budget which was contrary to the Department’s initial interpretation, and included within the counties’ collective responsibility those detention days for a youth on probation charged with a new substantive law violation. This recommended budget proposed that the counties would be responsible for fifty-seven percent (57%) of the shared costs of secure detention, and that the state would be responsible for forty-three percent (43%). This is in contrast to the thirty- two percent (32%) the counties were paying under the Department’s initial interpretation of the Rule Challenge Decision. The Governor’s Office then asked the Department to amend its earlier submitted legislative budget request, to reflect the Governor’s budget because it wanted the Department’s request to match. Although the GAA for FY 2014-15 incorporated a cost- sharing split similar to that included in the Governor’s proposal, it differed from the governor’s budget recommendation. It was not until June 2014, when the GAA was adopted into law, that the Department asserts it officially changed positions. As stipulated by the parties, there is no language in the GAA for FY 2014-15 setting forth the policy behind the budget split for secure detention. The Proposed Rules differ from the Department’s initial interpretation of the requirements of the Rule Challenge decision and its earlier established policies and procedures regarding the same as implemented in June 2013, through at least early 2014. The interpretation set forth in the Proposed Rules results in a lessened budgetary impact on the state by shifting more detention days to the counties. At hearing, Mr. Schuknecht testified as to the rationale for the Department’s changed interpretation regarding the counties’ responsibility for detention days for a youth on probation charged with a new substantive law violation: Q. If you would, Mr. Schuknecht, please kind of talk about the highlights of that rule, and especially in relationship to the Court’s ruling in the previous rule challenge. A. Basically how we got here is, in June of 2013, the First DCA ruled basically supporting the – DOAH’s hearing, the final court disposition prior to that. Basically we determined the final court decision meant commitment. They said it can’t be just commitment. So at that time we took the broadest interpretation as well will actually include all probationers as part of the final court disposition and they would be post-disposition days. Subsequent to that, in effect, through the Governor’s Office as well as the Legislature, as well as ourselves, we realized basically by doing that we are including probationers with new offenses as post-disposition cases which, in effect, makes no sense. It’s logical that they be pre- disposition cases because there is no disposition on those cases with new offenses. Plus probationers would only be in detention because they have new cases. They wouldn’t be there otherwise. So, in fact, that’s how we – so that’s the main change in the rule, in effect, defining what pre-disposition means. Mr. Schuknecht’s explanation for the Department’s changed interpretation is consistent with the explanation given by Jason Welty, the Department’s previous Chief of Staff, during the June 6, 2014, Workshop, that “the Department’s original interpretation was, quite frankly, in error.” Cost of Detention Days for Juveniles on Probation The Challengers contend that all days in detention served by a juvenile on probation are the responsibility of the state, and not the counties. Accordingly, the Challengers contest the Department’s Proposed Rules which assign responsibility for detention days of juveniles with new law violations to the counties, and not the state. Much of the testimony and argument at the hearing focused on the Department’s definitions for predisposition and postdisposition, and how these definitions apply as to youth on probation status with the Department. These definitions are crucial, as they relate to how the costs are split amongst the state and the counties. Only the costs of predisposition detention days may be billed to the counties under section 985.686. Final court disposition is specifically defined by the Proposed Rules as the “decision announced by the court at the disposition hearing” including “commitment, probation, and dismissal of charges.” “Predisposition” is further defined as the “period of time a youth is in detention care prior to entry of a final court disposition.” Proposed Rule 63G-1.011(14). “Postdisposition” on the other hand, means “the period of time a youth is in detention care after entry of a final court disposition.” Proposed Rule 63G-1.011(15). However, the definitions do not stop with this general language. Proposed Rule sections 63G-1.011(14)(b) and (15)(b) provide that it is the counties’ responsibility to fund the costs for days when a youth is on probation and is charged with a new law violation. These definitions are implemented through the Proposed Rules relating to the estimate and reconciliation processes. The Department argues that youth who are on probation and commit new offenses may be held in secure detention for the new offense but cannot be legally held in secure detention on the underlying violation of probation. However, the Department’s position would appear to be counter to the express language of several statutory provisions. Section 985.439(4) provides in relevant part: Upon the child’s admission, or if the court finds after a hearing that the child has violated the conditions of probation or postcommitment probation, the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation. In each such case, the court shall enter a new disposition order and, in addition to the sanctions set forth in this section, may impose any sanction the court could have imposed at the original disposition hearing. If the child is found to have violated the conditions of probation or postcommitment probation, the court may: Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation and up to 15 days for a second or subsequent violation. Place the child in nonsecure detention with electronic monitoring. However, this sanction may be used only if a residential consequence unit is not available. If the violation of probation is technical in nature and not a new violation of law, place the child in an alternative consequence program designed to provide swift and appropriate consequences to any further violations of probation. Neither statute nor Department rules define what is meant by a “technical” violation of probation. However, retired juvenile court judge Frank A. Orlando, accepted as an expert in juvenile detention issues, explained at hearing that: A technical violation in my opinion is something that doesn’t involve a law violation. It is a condition of probation. It would be a curfew. It could be going to school. It could be staying away from a family, a victim, or staying away from a place. It could be not obeying the probation officer, him or herself. In that sense they are technical violations of probation, but they are both violation of probation. In addition, section 985.101(1) provides that a juvenile may be “taken into custody” under chapter 985 for, among others, “a delinquent act or violation of law, pursuant to Florida law pertaining to a lawful arrest,” and “[b]y a law enforcement officer who has probable cause to believe that the child is in violation of the conditions of the child’s probation, home detention, postcommitment probation, or conditional release supervision; has absconded from nonresidential commitment; or has escaped from residential commitment.” § 985.101(1)(b), (d), Fla. Stat. However, this provision also expressly provides that “[N]othing in this subsection shall be construed to allow the detention of a child who does not meet the detention criteria in part V.” Part V of the Act includes section 985.255, which sets forth the detention criteria, and provides in pertinent part: Subject to s. 985.25(1), a child taken into custody and placed into secure or nonsecure detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if: The child is alleged to be an escapee from a residential commitment program; or an absconder from a nonresidential commitment program, a probation program, or conditional release supervision; or is alleged to have escaped while being lawfully transported to or from a residential commitment program. Thus, the undersigned is persuaded that sections 985.439(4), 985.101(1), and 985.255 all support a finding that a violation of probation, not associated with a new violation of law, may under some circumstances result in a new disposition of secure detention. However, pursuant to the Proposed Rules, under these circumstances the state would continue to be responsible for the cost of the secure detention. As explained at hearing, there is an idiosyncrasy in chapter 985 regarding secure detention for juveniles who have been charged with a violation of probation or violating a term of their conditional release. Under chapter 985, a child taken into custody for violating the terms of probation or conditional release supervision shall be held in a consequence unit. If a consequence unit is not available, the child is to be placed on home detention with electronic monitoring. § 985.255(1)(h), Fla. Stat. These consequence units have not been funded by the Florida Legislature for a number of years. However, the juvenile justice system has found a practical method to accommodate the nonexistence of these “consequence units.” For technical violations of probation, the courts often convert the violations of probation to a contempt of court, and will hold the juvenile in detention on this basis. This contempt of court procedure may also be used by the courts to detain a juvenile in secure detention for a violation of probation based on a new law violation. Pursuant to section 985.037, a juvenile who has been held in direct or indirect contempt may be placed in secure detention not to exceed five days for the first offense, and not to exceed 15 days for a second or subsequent offense. As noted by Judge Orlando and Seventh Judicial Circuit Judge Terrill J. LaRue, an order to show cause for indirect criminal contempt is the mechanism used to place a juvenile in secure detention for a violation of probation or conditional release. In addition, the probation is a significant factor that weighs heavily into the Department’s decision to securely detain the juvenile, and in large part determines whether the juvenile will be detained. For a youth who is on probation and is charged with a new substantive law offense, the Department, pursuant to its rules and policies, determines whether the youth will be detained in secure detention based on the Department’s Detention Risk Assessment Instrument (“DRAI”). § 985.245, Fla. Stat.; rule 63D-9.002. Under the DRAI, if the child scores 0-7 points, the child is not detained; 7-11 points, the child is detained on home detention; for 12 points or more, the child is detained on secure detention. For a youth who is on probation, the underlying charge for which that youth was placed on probation and/or the “legal status” of the youth itself will always be taken into account under the DRAI and will make secure detention significantly more likely than had the youth not been on probation on a number of fronts. This is also true for a youth on commitment status, in the case of conditional release. The highest scoring underlying charge may be used to assess the juvenile for probation if the new law violation does not score enough points for the juvenile to be securely detained. Therefore, there are days served in secure detention based on the scoring of the underlying charge for which the juvenile is on probation, and not the new law violation. In addition, there are a number of points resulting from the underlying charge for which the juvenile is on probation, regardless of whether the DRAI is scored on the new law violation or the underlying charge. A juvenile on probation will always get points purely for his or her legal status of probation. The number of points depends on the amount of time since the last adjudication or adjudication withheld. Six points is assigned for active probation cases with the last adjudication or adjudication withheld within 90 days. Two points are assigned if the last adjudication or adjudication withheld was more than 90 days ago. Similarly, the legal status of commitment, in the case of conditional release, also results in points towards secure detention. The prior adjudication or adjudication withheld which resulted in the probation or commitment status would also score points under the prior history section of the DRAI. In many cases, the underlying charge for which the youth is on probation will be the deciding factor regarding whether the youth is held in secure detention. Thus, the DRAI is significantly affected by a probationary status which adds additional points, and can trigger secure detention, regardless of the nature of the new law violation. In addition, a trial judge has the discretion to place a youth in secure detention on a violation of probation for committing a new law offense even when the score on the DRAI does not mandate secure detention. The Juvenile Justice Information System (“JJIS”) is an extensive database maintained by the Department, and utilized during the process of billing the counties for secure juvenile detention. The reason for the detention stay can be readily ascertained based on information entered into JJIS at the time a juvenile is assessed and detained. For instance, in the case of a violation of probation, there is always a referral for a violation of probation entered by the probation officer. This is true whether the violation is a new law violation or a technical violation of the terms of the probation. In addition, the Department can also ascertain from JJIS whether the juvenile was scored on the new law violation or, alternatively, the underlying charge which resulted in probation. The Department concedes that it can determine, in any given instance, why a juvenile has been detained. As acknowledged by the Department, the responsibility for days, whether predisposition or postdisposition, should be based on the reason for the detention. Probation is considered a postdisposition status. Likewise, detention days of juveniles on probation are postdispositional, and the financial responsibility of the State. Under the Proposed Rules, the only exception are those instances in which a youth is on probation and is detained because the youth is charged with a new violation of law, in which case the detention days prior to final court disposition on the new charge are the responsibility of the counties. This finding is further supported by the Department’s treatment of juveniles on conditional release, which is also a postdispositional status. When a youth is on conditional release with the Department, the youth is on supervision similar to probation supervision. Conditional release and probation contain the same standard conditions. The only essential difference between a youth on “conditional release” and a youth on probation is that a youth on conditional release has the status of commitment rather than probation. There is no real difference in how a probation officer treats a youth on conditional release or a youth on probation and the DRAI does not provide any distinction for the two legal statuses. The Department considers both probation and conditional release qualified postdispositional statuses. Under the Proposed Rules, the counties pay for detention days for youth on probation who commit a new law violation. This is true regardless of whether the youth would be placed in secure detention but for the probation. However, detention days incurred by the same youth who commits a technical violation of probation are deemed the responsibility of the state, since, under the Proposed Rules, the youth has not been charged with a new violation of law. Under the Proposed Rules, when a youth on conditional release commits either a new law violation or technical violation of conditional release and is placed in secure detention, those detention days are to be paid by the State. The Two Day Rule As part of the Notice of Change, the Department added a provision referred to as “the Two Day Rule” to the definitions for pre and postdisposition. The Two Day Rule provides that detention days where the youth is on probation are the responsibility of the state “unless the youth is charged with a new violation of law that has a referral date between zero and two days prior to the detention admission date, as determined by subtracting the referral date in JJIS from the detention admission date in JJIS.” Proposed Rule 63G-1.011(15)(b). Despite conceding that it knows why juveniles are being detained, the Department included the “Two Day Rule” in the Proposed Rule “[b]ecause it is difficult to determine the level of accuracy in the aggregate looking at thousands of cases at once.” Thus, the Two Day Rule captures when the Department receives a referral date for a new criminal charge and presumes that if a juvenile is put in secure detention within two days of that referral date, the detention is for that new charge. In some instances, detention days that should be treated as state days would in fact be treated as county days under the “Two Day Rule.” Mark Greenwald, Director of Research and Planning for the Department, testified: Q. Well, let’s see how factually this would work is that there is a referral for a charge, a new offense, and the youth is detained the next day on a contempt unrelated to that new charge. Isn’t that day going to now be--he is going to be detained because of a violation of the law because of your two-day rule? A. Under the rule, yes, the open charge would count. Q. But if he was a probationer and it was a contempt, that would not have been a county day. That would be a State day. A. Yes. Q. But now because of the two-day rule we will now treat that as a county responsibility and county responsibility for the cost? A. Yes. Other examples were cited in the testimony, such as where there was a pick-up order for a youth on probation who had absconded. Where there was also a new charge, the detention days would be billed to the county, even if the pick-up order was issued prior to the new law violation. Mr. Greenwald testified that when the Department decided to adopt the Two Day Rule, it had done no analysis to determine whether a One Day Rule or a Three Day Rule would more accurately identify probationary youths placed in detention due to a new law violation. Both Judges Orlando and LaRue expressed uncertainty regarding the applicability and utility of the Two Day Rule, noting that the Two Day Rule does not have any correlation or relationship to when or how juveniles are placed in secure detention for violations of probation. Judge LaRue further indicated that the term “referral date” as referenced in the Two Day Rule has no impact on what he does “whatsoever” and is a term: I’ve never heard before. I don’t use that term. I’ve never heard the term. This is something that, in reviewing this potential rule change here – or the rule change, I should say, that’s something I came across and scratched my head a little bit about exactly what it means. I think I know what it means. But it’s not a term that I use – it’s not a term of art, and it’s not a term that I use generally. The evidence adduced at hearing did not establish a rational basis for inclusion of the Two Day Rule provision in the definitions of pre and postdisposition. Notably absent was any credible evidence that use of the Two Day Rule would accurately identify detention days related to new law violations by probationers. To the contrary, the evidence established that use of a blanket metric, arbitrarily set at two days, would under several scenarios improperly shift responsibility for detention days to the counties. Moreover, given the capabilities of the JJIS, there is simply no reason to “assume” that a detention has resulted from a new law violation if within a given period of time from referral, when the Department has the ability to accurately determine the actual reason for the detention. Estimates, Reconciliation and Actual Costs At the start of the fiscal year, the Department provides an estimate to the counties of their respective costs of secure detention which is broken down into 12 installments that the counties pay on a monthly basis. At the end of the fiscal year, the Department performs a reconciliation of those costs based on the “actual costs” and sends a statement to each county showing under or overpayment, and providing for debits and credits as appropriate. The credits or debits would be applied to the current year billing, although they would relate to the previous fiscal year. Proposed Rule 63G-1.013 provides the process for calculating the estimate to each county at the beginning of the fiscal year. As part of this process, the Proposed Rule provides that the Department shall estimate “detention costs, using the current year actual expenditures projected through the end of the fiscal year, with necessary annualized adjustments for any new legislative appropriations within the detention budget entity.” The Department has modified its process in the Proposed Rules so that the estimate of costs is based, to a certain extent, on actual expenditures from the prior year, instead of the appropriation. However, the estimate process also takes into account the appropriation for the upcoming fiscal year, and a portion of the estimate of costs is still based on the appropriation. The Department concedes that there is a need for it to calculate the estimate as accurately as possible, and that there have been occasions in the past where the Department has not provided the counties credits owed as part of the reconciliation process. It is also clear from the record that credits for overpayments have not been provided by the Department to the counties for several fiscal years, beginning in FY 2009-10. Proposed Rule 63G-1.017 provides the annual reconciliation process at year end for determining each county’s actual costs for secure detention. This process includes the calculation of each county’s actual cost which is determined by the number of detention days and a calculation of the actual costs. The total “actual costs” for secure detention are divided by the “total number of service days” to produce an “actual per diem,” which is then applied to each county’s detention days to calculate each county’s share of the actual costs. Proposed Rule 63G-1.011 provides a definition for “actual costs” as follows: [T]he total detention expenditures as reported by the department after the certified forward period has ended, less $2.5 million provided for additional medical and mental health care per section 985.686(3). These costs include expenditures in all fund types and appropriations categories (Salaries & Benefits, Other Personal Services, Expenses, OCO, Food Products, Legislative Initiatives, Fiscally Constrained Counties, Contracted Service, G/A-Contracted Services, Risk Management Insurance, Lease or Lease- Purchase of Equipment, Human Resources Outsourcing, and FCO-Maintenance & Repair). The challengers assert that the proposed rules relating to the reconciliation process are vague, internally inconsistent, and inconsistent with statutory requirements contained in the law implemented. These include, but are not limited to: (1) the definition of actual costs fails to include an exclusion for “the costs of preadjudicatory nonmedical educational or therapeutic services” pursuant to section 985.686(3); (2) the definition of actual costs is over broad by including “expenditures in all fund types and appropriations categories;” and (3) the Proposed Rules fail to provide for input from the counties, as set forth in section 985.686(6). The Proposed Rules do not provide for input from the counties regarding the calculations the Department makes for detention cost share.
Findings Of Fact Incorporated in Finding of Fact 1. Rejected as a Conclusion of Law and not a Finding of Fact. 3-4. Incorporated in Finding of Facts 2-4. Incorporated in Finding of Facts 9-10. Incorporated in Finding of Facts 5-6. Incorporated in Finding of Fact 7. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 12. Rejected as argument and not a Finding of Fact. COPIES FURNISHED: Stanley Blanding, #036207 Liz Cloud, Chief Mark Dingle, #073356 Bureau of Administrative Code William Roberts, #908378 1802 The Capitol Virgil Page, #073743 Tallahassee, Florida 32301 Union Correctional Institution P. O. Box 221 Raiford, Florida 32803 William Joel Keel, #060263 Carroll Webb, Exec. Director Union Correctional Institution Administrative Procedures P. O. Box 221 Committee Raiford, Florida 32083 120 Holland Building Tallahassee, Florida 32301 Julia Forrester, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
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 statutory cost sharing requirements. The statutory requirements for funding juvenile detention in the state guide 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 after adjudication but "prior to" placement.3 The term "placement" is not defined by statute or rule. However, secure detention centers are legally unavailable to circuit courts for post-disposition placement. Post-disposition care of juveniles in a secure detention center is generally limited to juveniles who are waiting for residential placement. 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. Juveniles are not supposed to remain in detention centers very long after final disposition 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. Approximately 2,057 secure detention beds exist statewide. The operating cost for each bed is the same whether the bed is used for predisposition or post-disposition care. The operating cost for a secure detention bed may increase if the detention center exceeds capacity because of overtime expenses, temporary staffing, and other temporary costs. Although only two secure detention centers did not exceed capacity at some time during the previous year, secure detention utilization in the same year averaged approximately 89 percent of capacity. The Legislature funds the cost of juvenile detention care through an annual appropriation. Appropriations from 2002 forward have historically allocated approximately 11 percent of the cost of detention care to Respondent and approximately 89 percent to the counties. The total appropriation for the 2007-2008 fiscal year was $125,327,667. The Legislature allocated $30,860,924 to the state and $101,628,064 to the counties. Negative amounts in certain categories brought the net appropriation to $125,327,667. The Legislature pays the state's share of juvenile detention costs from general revenue. However, the "appropriation" for the counties' share of detention costs is actually an account payable. Pursuant to Subsection 985.686(6), Petitioner must make monthly payments into a state trust fund for its share of statewide predisposition detention costs. Subsection 985.686(3) requires Respondent to develop an accounts payable system to allocate to the counties the costs of secure detention for predisposition care. Pursuant to Subsection 985.686(5), Respondent administers the account payable system through a system of prospective assessment and retroactive reconciliation. Prospective assessments at the outset of a year are based on actual costs from the previous year. Subsection 985.686(5) requires Petitioner to pay the prospective assessment monthly and requires Respondent to complete an annual reconciliation at the end of the year to determine whether actual costs during the year were more or less than the prospective assessment. 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 or rule expressly 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." Other provisions in Rule 63G-1.004 prescribe the methodology to be used in calculating Petitioner's share of the costs for predisposition care. 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. Petitioner disputes the methodology Respondent uses to determine the amount Petitioner owes for predisposition care in the County. However, that dispute is the subject of a companion case identified by DOAH Case No. 07-4398 and is beyond the scope of this proceeding. The dispute in this proceeding is limited to Respondent's determination of the service days that Respondent allocated to Petitioner for predisposition care in the County. The term "service days" is not defined by statute or rule. Respondent defines service days to mean "utilization" days. Utilization days are not synonymous with calendar days. Utilization days correspond more closely to the number of juveniles in secure detention. If for example, 10 juveniles utilize one detention center during any part of a day, 10 utilization days have occurred during one calendar day. A secure detention center may be utilized simultaneously by juveniles in predisposition care and juveniles in post-disposition care (dual-use occupancy). 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. The 10 juveniles in the preceding example may not occupy a detention center for an entire calendar day. The five juveniles in predisposition care may occupy the center for only part of a calendar day and five more juveniles may receive predisposition care for the remainder of the day. In that example, Respondent would allocate 10 utilization days to Petitioner for predisposition care during that calendar day and only five utilization days to the state for a total of 15 utilization days. Respondent determined there were 709,251 utilization days for pre and post-disposition care in the state for the year in issue. Respondent allocated 579,409 utilization days to the counties' predisposition care and 129,842 utilization days to the state for post-disposition care. Respondent allocated 47,714 utilization days to Petitioner and, after reconciliation, reduced that number to 47,214. Petitioner claims the correct number of utilization days is 31,008. Respondent allegedly misallocated 16,206 utilization days for predisposition care by Petitioner. Respondent identifies the 16,206 utilization days in nine categories. The categories and corresponding number of days that Petitioner challenges are: contempt of court (327), detention order (3,005), interstate compacts (1), pick up orders (12,267), prosecution previously deferred (28), transfer from another county awaiting commitment beds (444), violation of after care (10), violation of community control (79), and violation of probation (45). Subsection 985.686(6) requires Respondent to calculate the monthly assessment against Petitioner with input from the County. Respondent allowed input from the counties during rulemaking workshops but has thwarted virtually any input from the County during the annual processes of calculating assessments and reconciliation. Respondent classifies each of the nine challenged categories as predisposition care. However, the data that Respondent provides to the County each year does not include final disposition dates. The omission of disposition dates from the information that Respondent provides to Petitioner effectively thwarts the County's ability to provide meaningful input into the calculations that Respondent performs pursuant to Subsection 985.686(6). The absence of disposition dates precludes the County from independently auditing, or challenging, the assessments that Respondent calculates pursuant to Subsection 985.686(6). The absence of disposition dates also deprives the trier-of-fact of a basis for resolving the dispute over the nine categories of utilization days that Respondent determined were predisposition care. Respondent claims the allegation of misclassification is a challenge to agency policy that is not subject to the due process requirements prescribed in Chapter 120. To the contrary, the allegation raises a disputed issue of fact over the correct disposition date, and that issue is not infused with agency policy or agency expertise. The correct disposition date can be determined through conventional means of proof, including public records. Although Respondent presumably uses that information to determine a disposition date, Respondent does not make the information available to the County. Even if a determination of the disposition date were solely a policy issue, it is not exempt from the due process requirements prescribed in Subsection 120.57(1). One of the principal purposes of a proceeding conducted pursuant to Subsection 120.57(1) (a 120.57 proceeding) is to encourage responsible agency policymaking. During this proceeding, Respondent did not explicate, by conventional methods of proof, any intelligible standards that guide the exercise of agency discretion in classifying the nine challenged categories of utilization days as predisposition days. Nor did Respondent explicate any evidential predicate to support a finding that the classification is infused with agency expertise and entitled to great deference. The only standards that Respondent articulated during the evidentiary hearing is that agency employees exercise discretion pursuant to instructions from agency management. Respondent also considers open charges against juveniles as a basis for distinguishing predisposition utilization days from post-disposition utilization days. If, for example, a juvenile is in secure detention awaiting placement after final disposition of one charge but has another open charge, Respondent classifies that utilization day as predisposition care. The trier-of-fact finds that secure detention after final disposition, but before residential placement for the charge adjudicated, is post-dispositional care. The record does not disclose how many, if any, of the 47,215 utilization days allocated to Petitioner involve open charges. Respondent did not explicate any intelligible standards to guide the exercise of agency discretion in using open charges as a basis for distinguishing predisposition utilization days from post-disposition utilization days. Nor did Respondent explicate an evidentiary basis to support a finding that the relevant classification is infused with either agency expertise or agency policy and entitled to deference. Petitioner acknowledges that some of the nine categories require final disposition before a juvenile can be placed in secure detention prior to residential placement. For example, data identification codes for offenses such as contempt of court, detention orders, pick up orders, prosecution previously deferred, violation of after care, violation of community control, and violation of probation require a final disposition. The omission of a final disposition date from the data available to Petitioner deprives Petitioner of the ability to provide input to Respondent to correct the assessments that Respondent calculates pursuant to Subsection 985.686(6).
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 utilization days determined in accordance with this Recommended Order and meaningful input from the County. DONE AND ENTERED this 10th 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 10th day of March, 2008.
The Issue Whether Petitioner, Bonia Baptiste, was subject to an unlawful employment practice by Respondent, the Florida Department of Juvenile Justice, in violation of the Florida Civil Rights Act.
Findings Of Fact The Department is the Florida executive agency responsible for "planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum." As described in section 20.316(1)(b), Florida Statutes, the "juvenile justice continuum" includes: ll children-in-need-of-services programs; families-in-need-of-services programs; other prevention, early intervention, and diversion programs; detention centers and related programs and facilities; community-based residential commitment and nonresidential programs; and delinquency institutions provided or funded by the department. 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). The Department's statutory mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services that strengthen families and turn around the lives of troubled youth. § 985.01, Fla. Stat. Pursuant to this mission, the Department's Office of Detention Services operates 21 detention centers throughout the State of Florida. These detention centers provide for the care, custody, and control of youth who are taken into custody and placed into detention care. See § 985.255, Fla. Stat. Florida statutes establish a specific criterion for determining whether juveniles (persons under the age of 18, or any person who is alleged to have committed a violation of law, which occurred prior to the time that person reached the age of 18) are housed in a detention center. Upon placement in a facility, juveniles are held during all stages of the juvenile justice process, including while awaiting a court adjudication or disposition, or placement in a residential facility. §§ 985.03(7), 985.03(18), 985.03(19), 985.24, and 985.255, Fla. Stat., and Fla. Admin. Code R. 63G-2.014. Petitioner is currently employed with the Department as a Juvenile Justice Detention Officer II ("Detention Officer"). Petitioner is assigned to the Collier Regional Juvenile Detention Center ("Collier Detention Center") located in Naples, Florida. The Collier Detention Center contains 40 beds and houses juveniles detained by the surrounding Florida circuit courts. Petitioner is a Black female, who was born and raised in Haiti. At the time of the final hearing, Petitioner was 45 years old. Petitioner was initially hired by the Department on December 8, 2017, as a Detention Officer I. She was promoted to Detention Officer II, with the rank of Corporal, effective November 9, 2018. As a Detention Officer, Petitioner is responsible for the direct supervision of the juveniles in the Collier Detention Center. Petitioner explained that the Collier Detention Center houses troubled youth, who have violated Florida law. Petitioner relayed that her primary responsibility is to ensure the youth are safe and secure in the detention facility. Petitioner alleges that she experienced unlawful discrimination and sexual harassment while she worked at the Collier Detention Center. Petitioner's complaint focuses on the alleged actions of Major Rodney Goss, the Superintendent of the Collier Detention Center. Petitioner asserts that Major Goss subjected her to sexual harassment, unlawful discrimination, and retaliation based upon her sex, age, race, and national origin. Petitioner claims that she had no problems working at the Collier Detention Center until she rejected Major Goss's unwelcome sexually suggestive and demeaning comments, intimidation, jokes, and offensive touching. During the final hearing, Petitioner specifically described the following incidents: Staff Christmas Party:3 Petitioner testified that she first experienced sexual harassment at a Christmas staff cookout that took place in December 2018. Petitioner alleges that during that gathering, Major Goss commented about her physical appearance. Petitioner explained that she was not on duty that day. Therefore, she wore a dress to the party, instead of her uniform. Petitioner voiced that when Major Goss saw her in her outfit, he announced that he would "catch a PREA [Prevention Rape Elimination Act] for that ass." Offensive Touching: On February 6, 2019, Petitioner went to Major Goss's office to discuss the actions of another Detention Officer, which Petitioner found objectionable. According to Petitioner, after she walked into his office, Major Goss told her to close the door. As she was closing the door, Major Goss touched her breasts with his hands. At the final hearing, Petitioner declared that Major Goss's "hand always has to get into my boobs." 3 The Department asserts that the incidents that allegedly took place before August 31, 2019, are not actionable because they occurred outside the 365-day statutory time limit. The undersigned, however, is considering these alleged incidents in this Recommended Order. See para. 58 below. Comment Regarding Petitioner's Haitian Accent: Petitioner alleged that her immediate supervisor once made fun of her accent, which reflects her Haitian background. On May 9, 2019, Petitioner met with Major Goss to discuss the incident. During this meeting, Petitioner asserted that Major Goss remarked that her accent is "sexy," and she should not worry about her supervisor. Petitioner was very disappointed at Major Goss's indifferent attitude. She felt that the comment was a serious matter. Major Goss, however, took no action against Petitioner's supervisor. Physical Contact: Petitioner complained that in or around August 2019, Major Goss pushed her against a wall and moved so close to her body that she felt his private parts. Work Schedule Modification: On September 20, 2019, Petitioner asked Major Goss about adjusting her work schedule so that she could have Sundays and Mondays off. Petitioner told Major Goss that she "would do anything" to get those two days off (such as extra work). Petitioner testified that when Major Goss heard her plea, he replied, "You will do anything?" He then laughed, walked to a white board in his office, and drew a picture of female and a male having sex. Upon seeing Major Goss's drawing, Petitioner expressed, "that's how you look at me?" She then called him a foul name and left his office. Major Goss did not modify Petitioner's work schedule. COVID Protective Equipment: On August 3, 2020, Major Goss failed to respond to Petitioner's email regarding working with a COVID-19 positive youth. Petitioner specifically requested Major Goss provide her with Personal Protective Equipment ("PPE"). At the final hearing, Petitioner conceded that Major Goss did, eventually, supply her with adequate PPE. Verbal Harassment: On August 28, 2020, Petitioner encountered Major Goss at work, where she claims he announced, "Are you still here? I'm working on firing you." Major Goss allegedly made this statement in front of other detention facility staff. (Major Goss did not fire Petitioner.) Request for Uniform: In September 2020, Petitioner requested a uniform from Major Goss. She claims that he never gave her a new uniform, purportedly because she rejected his sexual advances. Application for a Registered Behavior Technician Position: On August 3, 2020, Petitioner applied to become a Registered Behavior Technician ("RBT") for the Collier Detention Center. She was not selected for the position. Instead, the job was given to a younger Black person. Additional RBT positions were given to two white males. Petitioner believed that she was qualified to become an RBT, as well as had seniority over the other two employees who were selected for the opening. Application for Facility Training Coordinator: Later, Petitioner applied to be a Facility Training Coordinator ("FTC") for the Collier Detention Center. The FTC position required a Detention Officer to assume additional duties and responsibilities. It also awarded a five-percent raise. Petitioner testified that Major Goss selected a Department employee (a Black female) from another detention facility as the Collier Detention Center FTC. Petitioner believes that she was more qualified than the other employee. Petitioner contends that Major Goss purposefully did not to promote her to either the RBT or FTC positions in retaliation for her refusal to have sex with him. Detention Officer Promotions: Petitioner testified that she suspected that the Collier Detention Center staff had to perform sexual favors for promotions. To support this allegation, Petitioner reported that she heard about a specific incident in May or June 2020 when another Detention Officer danced provocatively in front of Major Goss. Major Goss then linked arms with her, and they walked together into the detention facility breakroom. Workers' Compensation Injury: At the final hearing, Petitioner described a disturbance at the Collier Detention Center on May 4, 2020, in which she injured her knee interceding in a fight between two youths. Petitioner immediately made a First Report of Injury or Illness to initiate a workers' compensation claim. On May 9, 2020, when she reported her workers' compensation-related injury to Major Goss, Petitioner alleges that he told her that she was faking it, and there was nothing wrong with her knee. He also exclaimed that she was "just too old." Petitioner voiced that Major Goss's comment about "faking" her knee injury was retaliation for rejecting his desire to have sex with her. Despite Major Goss's alleged statements, the Department, by letter dated May 13, 2020, placed Petitioner on alternate duty status. Petitioner was expected to perform duties, "which have been assigned within the current physical restrictions outlined by your physician." On June 30, 2020, Major Goss was notified that Petitioner had reached maximum medical improvement, with a zero-percent impairment rating. In addition to the above specific incidents, Petitioner testified that she was "always afraid" of Major Goss. He caused her anxiety and stress. She expressed that she felt threatened by him because she feared that whenever he came near her, he would talk about sex or ask her for sex. She feels that he looked at her like a sex object. Petitioner expressed that she wants to succeed at her job, and "not have to sleep with anyone to get there." Consequently, she tried to avoid Major Goss at work. Petitioner further declared that her work environment was full of sexual incidents involving other Department employees. Petitioner alleged that Major Goss touched her breasts on "multiple" occasions, then would tell her that it was an accident. Finally, Petitioner claimed that in the summer of 2020, she went to Major Goss and threatened to report him "to Tallahassee." Major Goss, however, dismissed her pronouncement stating, "Who are they going to believe?" Petitioner asserts that her reprimands only occurred after she rejected Major Goss's sexual advances. On August 28, 2020, Petitioner filed a formal sexual harassment complaint with the Department. Currently, Petitioner still works as a Detention Officer at the Collier Detention Center. However, Petitioner declared that Major Goss's actions have severely, adversely affected her ability to perform her job. Petitioner also believes that the Department has discredited or outright ignored her complaints of discrimination and harassment. Petitioner testified that she did not report the incidents of harassment before August 2020 because she was afraid that she would lose her job or be punished at work. But now that she has notified the Department, Petitioner is very frustrated that the Department has not made any adjustment or change to her job duties or status based on her complaints against Major Goss. At the final hearing, Petitioner pleaded that she simply cannot work under Major Goss anymore. She asserted that the Department is setting her up for failure. Petitioner also wants the Department to be held accountable for Major Goss's unacceptable behavior. Petitioner declared that no women who work at the Collier Detention Center should feel threatened based on their sex. Despite her tense working relationship with Major Goss, Petitioner testified that she is a good worker. As proof of her effectiveness, Petitioner produced her performance evaluation for 2019-2020, in which she was given an overall rating of "Commendable." In the evaluation, Major Goss specifically commented, "Cpl. Baptiste is an exceptional employee within the department," and that she "is always reliable [and] does more than just get by." Petitioner's direct supervisor, Captain Samuel Sainval, added that Petitioner "has the capability to perform at a high level. [Petitioner] is reliable and shows up to work as scheduled." Petitioner was awarded either an "above expectation" or "meets expectation" in all five rating categories. The Department denies that Major Goss, or any other Department employee, subjected Petitioner to unlawful employment practices based upon her sex, age, race, or national origin, or in retaliation. At the final hearing, the Department maintained that it does not condone or tolerate sexually offensive or harassing behavior by its employees. The Department initially called Major Goss to testify. As Superintendent of the Collier Detention Center, Major Goss is responsible for the operation, safety, and security of the detention facility. In his role, Major Goss is the ultimate supervisor for all Detention Officers and Department employees at the Collier Detention Center, including Petitioner. Major Goss has worked for the Department since 2011, when he was hired as a Detention Officer I. He steadily advanced through the Department ranks until he was promoted to Superintendent of the Collier Detention Center in January 2019. Major Goss is also Black. At the final hearing, Major Goss firmly denied Petitioner's allegations of discrimination and sexual harassment. Regarding Petitioner's specific charges: Comment Regarding Petitioner's Haitian Accent: Major Goss recalled Petitioner's complaint that a staff member had belittled her Haitian accent. Major Goss stated that he elected to handle the incident internally as a "management" concern. Major Goss testified that he addressed Petitioner's issues with the direct supervisor who allegedly made the disparaging comment. Major Goss expressed that they reviewed how to act professionally, as well as properly interact with subordinates in the work environment. In addition, Major Goss arranged for a meeting between Petitioner and her supervisor to discuss her discomfort with his actions. Major Goss relayed that he elected not to reprimand or remove Petitioner's supervisor. Major Goss testified that he did not believe that the supervisor's comment rose to the level of discrimination against Petitioner's national origin. Major Goss further denied that he personally ever discriminated against Petitioner because of her accent or national origin. COVID Protective Equipment: Major Goss remembered that Petitioner once emailed him with concerns regarding possible exposure to youth with COVID in the facility. Major Goss explained that he maintains the PPE for the detention facility in a central location. Major Goss testified that he promptly brought PPE to Petitioner following her request. Therefore, he believed that he adequately resolved the issue. Request for Uniform: Major Goss acknowledged that Petitioner emailed him in September 2020 regarding her uniform. To the best of his memory, Petitioner had not been wearing the proper uniform pants. Therefore, she was out of compliance. Major Goss stated that he was able to requisition the appropriate pants for Petitioner. Accordingly, he believed he resolved her issue. Detention Officer Promotions: Major Goss admitted that on one occasion he walked arm-in-arm with a Detention Officer into the Collier Detention Center breakroom. Major Goss urged that there was nothing sexual about their actions, and at no point were they outside the sight of other Department employees. At most, Major Goss represented that they were simply joking around. Major Goss staunchly refuted Petitioner's accusations regarding the following alleged incidents. He roundly stated that they "never happened." Staff Christmas Party: Major Goss denied that he made any comments about Petitioner's appearance or attire during the staff Christmas party in December 2018. Offensive Touching: Major Goss denied that he inappropriately touched Petitioner in his office on February 6, 2019, or at any other time. Work Schedule Modification: Major Goss denied Petitioner's allegation that he drew a picture of two people having sex on the dry erase board in his office. Verbal Harassment: Major Goss denied that he had any conversation with Petitioner in which he announced that he was firing her. Neither did he ever ask her, "Why are you still working here?" Workers' Compensation Injury: Major Goss admitted that he was aware that Petitioner suffered a knee injury in May 2020. Major Goss denied that he had a follow-up discussion with Petitioner in which he told her that she was "too old." Vincent Vurro is Chief, Detention Services South Region, for the Department. In this role, Mr. Vurro oversees the administration and operation for the Detention Services South Region, including personnel issues and day-to-day support. Chief Vurro relayed that the South Region includes seven detention facilities, including the Collier Detention Center. Chief Vurro testified regarding several disciplinary actions that the Department took against Petitioner in 2020. Chief Vurro relayed that, per Department procedures, requests to discipline Detention Officers are routed from the detention facility superintendents up to the South Regional office. Therefore, Chief Vurro was personally aware of, and able to testify regarding, the following disciplinary actions against Petitioner: Oral Reprimand, January 2, 2020: Chief Vurro relayed that Petitioner received an oral reprimand on January 2, 2020. The reprimand was based on a report that Petitioner engaged in a verbal argument with a co-worker during a shift change briefing. Chief Vurro explained that, prior to shift changes at detention facilities, Detention Officers meet to discuss the upcoming day, as well as share pertinent information. Chief Vurro asserted that the oral reprimand was warranted because Petitioner's "unprofessional" conduct was disruptive and could have affected staff performance. Chief Vurro stated that Petitioner's actions violated Facility Operating Procedure 1.05, which requires employees to be "courteous, considerate, respectful and prompt in dealing with and serving the public and co-workers." Major Goss reiterated Chief Vurro's testimony on the importance of orderly shift changes. Major Goss voiced that the Collier Detention Center is manned 24 hours a day. Therefore, he must ensure that Detention Officers properly coordinate any work issues when starting their duty days. Major Goss explained that each of the three work shifts at his facility overlaps by approximately 30 minutes. During this time, Detention Officers discuss any outstanding concerns. Consequently, he felt compelled to reprimand Petitioner based on the disruption she caused during the shift change. He believed that the oral reprimand was necessary and proper. Written Reprimand, May 7, 2020: Chief Vurro relayed that Petitioner received a written reprimand on May 7, 2020, for failing to timely radio in a "Code White" after she observed a youth who threatened to intentionally harm herself.4 Following his review of a video of the encounter, Chief Vurro determined that Petitioner did not instantly act to assist the youth in danger. Petitioner lost sight of the youth when she decided to use a phone to call for assistance, instead of her Department-issued radio that should have been carried on her belt. Written Reprimand, May 29, 2020: Chief Vurro testified that, on May 29, 2020, Petitioner was given a written reprimand based on her failure to carry her Department-issued radio while on duty. The discipline was based on an incident that occurred when Petitioner was conducting eight-minute checks through her area of the facility. Petitioner encountered a youth who was exhibiting suicidal behavior. Petitioner, however, had removed her radio from her belt and left it some distance away. Therefore, Petitioner had to request another youth call for assistance with her radio while she responded to the situation. Petitioner was disciplined for inefficiency or inability to safely perform assigned duties and failure to have immediate access to a radio. Upon questioning, Chief Vurro conceded that he never personally discussed with Petitioner the circumstances behind the above incidents. 4 Facility Operating Procedure 5.06 establishes color codes for Detention Officers to use to announce emergencies during radio communications. A "Code White" represents "Cut Down; Knife for Life required." Chief Adrian Mathena explained that in civilian parlance, "Code White" stands for a medical emergency, and "Cut Down" means a suicide attempt. Instead, he decided that the reprimands were warranted based on the evidence presented to him, which primarily consisted of video recordings of the May 7 and May 9 incidents. Application for Registered Behavior Technician: Chief Vurro was also involved in Petitioner's application to be an RBT. Chief Vurro described an RBT as an officer who would assist in a detention facility's behavior modification program. Chief Vurro explained that he did not consider the RBT position to be a promotion. He testified that the job did not award a salary increase or bonus. Instead, the applicant selected for the position would simply receive a certification. Major Goss further detailed that the Collier Detention Facility had created three RBT positions, one for each work shift. He also proclaimed that he did not directly select which Detention Officers were to fill the RBT openings. Instead, he simply reviewed names submitted to him from the immediate supervisors, then signed off on their recommendations. Major Goss stated that he did not have any information as to why the supervisors did not recommend Petitioner for one of the three RBTs. Further, like Chief Vurro, Major Goss did not consider the RBT position to be a promotion because it did not entitle a Detention Officer to more pay or rank. Rather, the Detention Officer merely participated in an RBT certification course. At that point, the Detention Officer would be prepared to use their RBT training to perform additional duties. Application for Facility Training Coordinator: Regarding Petitioner's application to be an FTC, Chief Vurro testified that Major Goss selected the Detention Officers who were to be considered for the position, then he (Chief Vurro) approved the pick. As for the specific reason Petitioner was not selected, Chief Vurro stated that, to qualify as an FTC, the Detention Officer must have served as a Detention Officer II for at least three years. Chief Vurro asserted that, at the time Petitioner applied, she had less than the required time in grade. Therefore, she did not qualify for the opening. On the other hand, the Detention Officer who he ultimately chose for the role did have the required service time. Major Goss repeated Chief Vurro's testimony that he did not select who filled the FTC position. Instead, Major Goss gathered the applications, then forwarded them to Chief Vurro as the regional director. Major Goss maintained that he did not have personal knowledge as to why Chief Vurro did not choose Petitioner as the Collier Detention Center FTC. Major Goss offered that he heard that some of the applicants did not have sufficient time in grade to qualify for the position. Major Goss further acknowledged that the FTC position came with a five-percent raise. Adrian Mathena is the Chief of Policy Development and Planning for Detention Services for the Office of Detention Services. In his role, Mr. Mathena has knowledge of the mission and duties of the Department's detention services, specifically regarding the budget, operation, and management of juvenile detention facilities. Chief Mathena is also involved in detention facility personnel decisions. Chief Mathena expressed that Detention Services exists to make a positive impact on juveniles in custody. Accordingly, Detention Services endeavors to provide a safe, secure, and humane environment to the youth entrusted to Department supervision. Regarding Petitioner's written reprimands in May 2020, Chief Mathena explained that the Department requires Detention Officers to maintain their radios on their persons at all time. Chief Mathena explained that Detention Officers must have immediate access to their radios in case they need to call for assistance. Regarding Petitioner's application for the FTC position, Chief Mathena concurred with Chief Vurro's testimony that the Department required three years of Detention Officer II experience prior to acceptance into the program. Chief Mathena professed that the FTC program is "highly selective." Chief Mathena also echoed Chief Vurro's testimony that the program required the Detention Officer to assume additional responsibilities, which would bestow a five-percent boost in pay. Regarding Petitioner's application to be an RBT, Chief Mathena relayed that, when the program initially started, the Department envisioned one technician in every detention facility. However, this arrangement soon proved problematic. Consequently, at this time, the Department no longer offers the RBT certification or position. Department Investigation: Following Petitioner's formal complaint of sexual harassment to the Department on August 28, 2020, the Department opened an internal investigation into Petitioner's allegations against Major Goss. To describe and explain the Department's investigation process and conclusions, the Department called several witnesses from the Department's Office of Inspector General ("OIG"). Darrell Furuseth is Chief of Investigations for the OIG. In his role, Chief Furuseth coordinated and supervised the investigation into Petitioner's allegations of sexual harassment and unlawful discrimination. Chief Furuseth began his testimony by explaining that Petitioner's complaint, like all sexual harassment allegations and complaints within the Department, was channeled through the Department's Central Communication Center (the "CCC"). Chief Furuseth relayed that, on August 28, 2020, the CCC received a phone call reporting sexual harassment by a Department employee. The Reporting Person (the caller) was Bonia Baptiste (Petitioner), and she identified Rodney E. Goss (Major Goss) as the subject of her complaint. As supporting background information, Petitioner declared that Major Goss "made comments about her breasts." She further accused him of embarrassing her "in front of the other staff by threatening to terminate her," and once "pushing [her] into a corner as he walked by." Petitioner also stated that she suspected that staff at the Collier Detention Center were "performing sex acts in exchange for advancement." Finally, Petitioner questioned the selection of another Detention Officer for employee of the month. Thereafter, the OIG initiated an investigation into Petitioner's allegations. Specifically, the OIG investigated Major Goss for "Improper Conduct; Sexual Harassment (staff on staff)." As part of the investigation, the OIG interviewed both Petitioner and Major Goss. The OIG further interviewed Petitioner's direct supervisor (CPT Sainval), as well as six of Petitioner's fellow Detention Officers from the Collier Detention Center. Upon completion of the investigation, on October 9, 2020, the OIG convened an EEO Resolution Panel to determine whether "cause" existed to substantiate Petitioner's complaint. The Resolution Panel concluded that "there was 'No Cause' to believe alleged sexual harassment occurred." Chief Furuseth, who served on the Resolution Panel, explained that the Resolution Panel looked for specific corroborating evidence or witnesses to confirm Petitioner's complaint. They found none.5 Neither did the investigation uncover any photographs or videos supporting Petitioner's allegations. Chief Furuseth urged that in reaching its conclusion, the Resolution Panel objectively looked at the totality of the investigation and considered all the witness statements. On October 20, 2020, the OIG prepared a written Report of Investigation stating, "Based on the lack of evidence, it was determined that a subsequent investigation was not warranted." 5 Two interviewees whose statements are included in the Report of Investigation expressed that Petitioner complained to them that Major Goss sexually harassed her. However, the two interviewees directly denied ever having personally observed Major Goss treat Petitioner improperly or having any personal knowledge of inappropriate conduct on the part of Major Goss. These recorded accounts, while generally bolstering Petitioner's accusations of interoffice strife, are clearly hearsay in that they are out-of-court statements by two individuals who did not appear at the final hearing. Consequently, the comments are insufficiently reliable to serve as a basis for a factual finding. See § 120.57(1)(c), Fla. Stat. See also Damask v. Ryabchenko, -- So.3d --, WL 4979083 (Fla. 4th DCA Oct. 27, 2021)("Inadmissible hearsay cannot be competent, substantial evidence."); and Mace v. M&T Bank, 292 So. 3d 1215, 1226 (Fla. 2d DCA 2020). Dixie Fosler is the Assistant Secretary for Detention Services for the Department. In her role, Ms. Fosler oversees operations for all 21 Detention Centers in Florida. Ms. Fosler testified regarding the operation and management of the detention facilities, as well as personnel policies and procedures governing detention facilities and officers. Ms. Fosler also served on the EEO Resolution Panel that investigated Petitioner's allegations of sexual harassment. Ms. Fosler initially expressed that the Department will not tolerate sexual harassment, and sexual harassment by Department employees is a terminable offense. That being said, Ms. Fosler represented that the OIG's investigation into Petitioner's complaint did not uncover any evidence to corroborate Petitioner's allegations. Neither did the investigation contain any witness statements supporting Petitioner's claims. On the other hand, Ms. Fosler relayed that the Resolution Panel had several concerns regarding other conduct by Major Goss. First, during the investigation, Major Goss described a recent encounter with Petitioner when she looked upon him with disgust. Reacting to her look, Major Goss uttered, "The feeling is mutual." The Resolution Panel was alarmed at Major Goss's open declaration of "disgust" at a Department employee. The Resolution Panel felt that Major Goss's expressed negative attitude towards a Detention Officer was unprofessional. Second, the Resolution Panel was troubled when it learned that Major Goss walked arm-in-arm with a subordinate into the Collier Detention Center breakroom suggesting that the two of them might engage in a romantic rendezvous – even in a joking manner. The Resolution Panel believed that Major Goss's actions were "too playful" for a supervisor to engage in. Based on these accounts, the Department issued Major Goss a written reprimand, dated October 20, 2020, for "unacceptable behavior." The Department specifically determined that Major Goss's conduct was "considered a violation of law or agency rules, and unbecoming for a public employee." The written reprimand warned Major Goss that, as Superintendent, he is "expected to always demonstrate a professional demeanor and act in a respectful manner." During the final hearing, Major Goss acknowledged his written reprimand. However, he pointed out that he was not punished for any discrimination or harassment involving Petitioner. Major Goss further stated that he received no discipline beyond the written reprimand. However, he relayed that the Department required him to attend sexual harassment training. Further, the Department installed cameras in the administration area, breakroom, and the superintendent's office at the Collier Detention Center to alleviate any concerns regarding possible future misconduct. Petitioner, in response to testimony describing her reprimands, asserted that the Department's disciplinary action was not proper. Instead, Petitioner declared that she was reprimanded only because she refused to have sex with Major Goss. At the final hearing, Petitioner pointed out that all the reprimands occurred after the alleged sexual harassment began. Regarding the January 2, 2020, oral reprimand, Petitioner confirmed that this disciplinary action followed an argument she had with another Detention Officer during a shift change. At the final hearing, Petitioner explained that she was trying to diffuse a personal conflict with the other employee. Petitioner asserted that this reprimand was not justified because her actions did not place any youth in danger. Petitioner further commented that Major Goss "makes a problem out of everything because I won't have sex with him." Regarding the May 7, 2020, written reprimand, Petitioner recounted that she had attempted to call for help during the incident, but her radio did not work. Therefore, she was forced to use a phone to call for assistance. Consequently, Petitioner contended the discipline was not warranted. Regarding the May 29, 2020, written reprimand, Petitioner asserted that when she saw a juvenile at risk of harming herself, she immediately reacted. She only requested the other youth call for help because she was struggling to manage the situation. Petitioner further stated that she had previously removed her radio from her belt because she had completed her eight-minute bed check, and all the youth were safe and secure. Petitioner added that other Detention Officers did not always carry their radios on their belts. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Department discriminated against Petitioner based on her race, sex, national origin, or age, or in retaliation for participating in a protected activity. The most persuasive evidence presented during the final hearing does not corroborate Petitioner's allegations of discrimination or sexual harassment. On the contrary, the testimony from the Department witnesses, in particular, Major Goss, is credible and is credited. Further, the evidence establishes that Petitioner was disciplined appropriately and not as retaliation for her complaint. Accordingly, Petitioner failed to meet her burden of proving that the Department committed an unlawful employment action against her in violation of the FCRA.
Conclusions For Petitioner: Paul Middle Platte, Esquire Paul Platte, P.A. 611 South Fort Harrison Avenue, Suite 252 Clearwater, Florida 33756 For Respondent: Debora E. Fridie, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 3200 Tallahassee, Florida 32399-3100 1 All statutory references are to Florida Statutes (2021), unless otherwise noted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Bonia Baptiste, did not prove that Respondent, the Florida Department of Juvenile Justice, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of November, 2021, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Debora E. Fridie, Esquire Department of Juvenile Justice 2737 Centerview Drive, Suite 3200 Tallahassee, Florida 32399-3100 Paul Middle Platte, Esquire Paul Platte, P.A. Suite 252 611 South Fort Harrison Avenue Clearwater, Florida 33756 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
