The Issue The issue is whether Respondent assessed Petitioner for secure juvenile detention care for the 2007-2008 fiscal year in a manner that implements Section 985.686, Florida Statutes (2007), and Florida Administrative Code Rule 63G-1.1
Findings Of Fact Respondent is the state agency responsible for administering the cost sharing requirements in Section 985.686 for juvenile detention care. Petitioner is a non-fiscally constrained county2 subject to the cost sharing requirements. The relevant statutory backdrop affects the findings in this proceeding. Subsection 985.686(1) requires Petitioner and Respondent to share the costs of "financial support" for "detention care" for juveniles who reside in Hillsborough County, Florida (the County), and are held in detention centers operated by Respondent. Subsection 985.686(3) requires Petitioner to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in Subsection 985.686(2)(a) to mean secure detention. Secure detention is defined in Subsection 985.03(18)(a), for the purposes of Chapter 985, to include custody "prior to" adjudication or disposition as well as custody "prior to" placement.3 Detention centers are legally unavailable to circuit courts for post-disposition placement (residential placement). Post-disposition care of juveniles in detention centers is limited to juveniles who are waiting for residential placement. The statutory reference in Subsection 985.03(18)(a) to placement is construed in this proceeding to mean residential placement. Thus, secure detention means custody in a detention center for both predisposition care prior to adjudication or final court disposition, and post-disposition care after adjudication or disposition but prior to residential placement. A literal reading of Subsections 985.03(18)(a), 985.686(1), and 985.686(2)(a) may foster ambiguity, at least for a stranger to the workings of juvenile detention. If Subsection 985.686(1) requires Petitioner and Respondent to share the costs of secure detention and secure detention includes custody prior to adjudication or disposition, a literal interpretation arguably could require Respondent to share the costs of secure detention prior to adjudication or final disposition. Factual findings in this proceeding are not based on a literal interpretation of the definition of secure detention in Subsections 985.686(2)(a) and 985.03(18)(a). Rather, the findings are based on an interpretation of secure detention that is consistent with the statutory requirement in Subsection 985.686(3) for Petitioner to pay the costs of secure detention during predisposition care and for Respondent to pay the costs of secure detention during post-disposition care. The annual legislative "appropriation" for the counties' share of detention care is actually an account payable by the counties rather than an appropriation of funds. For the 2007- 2008 fiscal year,4 the legislature "appropriated" a total of $125,327,667.00 for detention care. However, only $30,860,924.00 of the total amount was actually appropriated from general revenue. The general revenue funds are appropriated for costs that Respondent must pay, including amounts for fiscally constrained counties. The Legislature identified $101,628,064.00 of the total appropriation as the counties' aggregate share of detention costs. Negative entries in the appropriation reduce the total amount to $125,327,667.00 The practical realities of juvenile detention care complicate the allocation of costs between predisposition and post-disposition care. Juveniles are not supposed to remain in detention centers very long while they wait for residential placement. However, juveniles with exceptional needs, such as mental health needs, may remain in detention centers for a longer period of time due to the limited availability of appropriate residential placement facilities. A room in a detention facility may be occupied simultaneously by juveniles in predisposition care and juveniles in post-disposition care waiting for residential placement (dual- use occupancy). Dual-use occupancy complicates the calculation of shared costs between the counties and the state. Subsection 985.686(3) requires Respondent to develop an accounts payable system to allocate the costs of secure detention for predisposition care. Respondent administers the statutory cost sharing requirements through a prospective assessment and retroactive reconciliation system. Prospective assessments for each fiscal year are based on actual costs during the previous year. Petitioner pays the prospective assessment monthly, and, at the end of each fiscal year, Respondent performs an annual reconciliation to determine whether actual costs during the current fiscal year were more or less than the prospective assessment at the beginning of the fiscal year. Sometime after the end of each fiscal year, Respondent either credits or debits Petitioner for any differences between the prospective assessment and actual costs determined in the annual reconciliation. Subsection 985.686(3) requires Petitioner to pay for the costs of secure detention in the County for the "period of time" juveniles are in predisposition care. No statute defines the phrase "period of time." Subsection 985.686(10) authorizes Respondent to adopt rules to administer Section 985.686. Rule 63G-1.004(1)(c) implicitly defines the statutory reference to a "period of time" in predisposition care to mean "service days." Rule 63G-1.004 also prescribes the methodology to be used in calculating Petitioner's share of the costs for secure detention during the period of time required for predisposition care in the County. Respondent must first identify all juveniles in predisposition care based upon usage during the preceding fiscal year. Second, Respondent must match each placement record with the corresponding identification code. Third, Respondent must calculate the "service days" in predisposition care. Finally, Respondent must divide the number of "service days" Petitioner used for predisposition care in the County by the service days used by all counties to determine the percentage of the counties' costs for predisposition care that Petitioner owes. The term "service days" is not defined by statute or rule. Respondent defines service days to mean "utilization" days. If, for example, 10 individuals occupy one detention room in a facility during any part of a day, 10 utilization days have occurred during one calendar day. Respondent uses utilization days to calculate the statutory period of time for predisposition care and post-disposition care. If the 10 utilization days in the preceding example were to include equal dual-use occupancy, Respondent would count five utilization days for predisposition care and five utilization days for post-disposition care. Petitioner disputes the utilization days that Respondent calculated. However, that dispute is the subject of a companion case identified by DOAH Case No. 07-4432 and is beyond the scope of this proceeding. Respondent determined there were 709,251 utilization days for pre and post-disposition care. The total consisted of 579,409 utilization days for the counties' predisposition care and 129,842 utilization days for post-disposition care. Respondent allocated 47,714 utilization days to Petitioner. Rule 63G-1.004(2) requires Respondent to divide the 47,714 utilization days allocated to Petitioner by the 579,409 utilization days allocated to all counties. The mathematical quotient of that calculation is .08234. The rule requires Respondent to multiply the cost of detention by 8.234 percent. The "cost of detention" means the counties' cost of detention in the amount of $101,628,064.00. The mathematical product of multiplying $101,628,064.00, by .08234 is $8,368,054.79. Respondent exercised discretion to adopt a methodology that is inconsistent with the methodology prescribed by rule, in violation of Subsection 120.68(7)(e)2. Respondent defined the cost of detention to include the total appropriation of $125,327,667.00. Respondent is legally required to pay $30,860,924.00 of the $125,327,667.00, including $6,329,328.00 allocable to fiscally constrained counties. Respondent divided the total appropriation of $125,327,667.00 by 709,251 utilization days to arrive at a per diem rate of $176.70 for all detention care. Respondent then multiplied the per diem rate by Petitioner's 47,714 utilization days and proposed a gross assessment in the amount of $8,400,165.73.5 Respondent reduced the gross assessment after adjustments and proposed a net assessment in the amount of $8,320,440.73, which Petitioner paid.6 The actual gross assessment of $8,400,165.73 exceeded the authorized gross assessment of $8,368,054.79 by $32,110.94. Any adjustments required to determine a net assessment should be made to the authorized gross assessment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order assessing Petitioner for the costs of predisposition care in the County using the methodology prescribed by rule, including costs of detention in the aggregate amount of $101,628,064.00, and crediting Petitioner for the amount of any overpayment. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
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
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to the Proposed Rules of the Department of Juvenile Justice (“Department” or “DJJ”) 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017 (the “Proposed Rules”). The main issue in this case is whether the Proposed Rules are an invalid exercise of delegated legislative authority in that the Proposed Rules enlarge, modify, or contravene the specific provisions of law implemented, section 985.686, Florida Statutes; are vague; and/or are arbitrary and capricious. Petitioners also argue that the Proposed Rules impose regulatory costs that could be addressed by the adoption of a less costly alternative. Finally, Petitioners assert that the Proposed Rules apply an invalid interpretation of the General Appropriations Act (“GAA”) for Fiscal Year (“FY”) 2014-15 by interpreting the GAA as a modification to substantive law, contrary to the Constitution of the State of Florida.
Findings Of Fact The Parties The Department is the state agency responsible for administering the cost-sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. The challenging counties are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost-sharing requirements of section 985.686. The challenging counties are substantially affected by the application of Florida Administrative Code Rules 63G-1.010 through 63G-1.018, including the Proposed Rules. It was stipulated that the challenging counties’ alleged substantial interests are of the type these proceedings are designed to protect. Petitioner, Florida Association of Counties (“FAC”), is a statewide association and not-for-profit corporation organized and existing under chapter 617, Florida Statutes, for the purpose of representing county government in Florida and protecting, promoting, and improving the mutual interests of all counties in Florida. All of the 67 counties in Florida are members of FAC, and the Proposed Rules regarding Detention Cost Share affect all counties. Of the 67 counties in Florida, 35 are considered non- fiscally constrained, and are billed by the Department for their respective costs of secure detention care, as determined by the Department; 27 of these counties are participating alongside FAC in these proceedings. The subject matter of these proceedings is clearly within FAC’s scope of interest and activity, and a substantial number of FAC’s members are adversely affected by the Proposed Rules. The challenging counties, and FAC, participated in the various rulemaking proceedings held by the Department related to the Proposed Rules, including rule hearings held on June 6, 2014, and August 5, 2014. Rule Making The initial version of the Proposed Rules was issued, and a Rule Development Workshop was held on March 28, 2014. Numerous challenging counties submitted comments on the Proposed Rules either prior to, or at the Rule Development Workshop. On May 15, 2014, the Department published Proposed Rules 63G-1.011, 1.013, 1.016, and 1.017 in the Florida Administrative Register. In that Notice, the Department scheduled a hearing on the Proposed Rules for June 6, 2014. On June 6, 2014, a rulemaking hearing was held on the Proposed Rules. Numerous challenging counties submitted comments to the Proposed Rules either prior to, or at the hearing. A supplemental rulemaking hearing was held on August 5, 2014. Again, numerous challenging counties submitted comments regarding the Proposed Rules either prior to, or at the supplemental rulemaking hearing. On September 5, 2014, the Department advertised its Notice of Change as to the Proposed Rules. Thereafter, all parties to this proceeding timely filed petitions challenging the Proposed Rules. A statement of estimated regulatory costs (“SERC”) was not originally prepared by the Department. In the rulemaking proceedings before the Department, Bay County submitted a good faith written proposal for a lower cost regulatory alternative. In its proposal, Bay County asserted that the Department’s own stipulations signed by the agency are competent substantial evidence that the agency has a “less costly alternative” to the approach taken in the Proposed Rules, by assessing the costs of all detention days for juveniles on probation status to the state, and not the counties.2/ As Bay County noted in the proposal, the Department previously had agreed to assume all of the cost of detention days occurring after a disposition of probation. Following the June 6, 2014, hearing, the Department issued a SERC for the Proposed Rules. Ultimately, the Department rejected the lower cost regulatory alternative proposed by the counties “because it is inconsistent with the relevant statute (section 985.686, F.S.), fails to substantially accomplish the statutory objective, and would render the Department unable to continue to operate secure detention.” The Implemented Statute The Proposed Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care “for juveniles for the period of time prior to final court disposition.” § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of “its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition,” based on “the prior use of secure detention for juveniles who are residents of that county, as calculated by the department.” § 985.686(5), Fla. Stat. (emphasis added). Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, “[a]ny difference between the estimated costs and actual costs shall be reconciled.” Id. The Department is responsible for administering the cost-sharing requirements and is authorized to adopt rules as set forth in section 985.686(11). In general, the Proposed Rules provide definitions including for pre and postdisposition, provide for calculating the estimated costs, for monthly reporting, and for annual reconciliation. Specific changes will be discussed in detail below. The complete text of the Challenged Rules, showing the proposed amendments (in strike-through and underlined format) is attached hereto as Appendix A. The Prior Rule Challenge On July 16, 2006, the Department promulgated Florida Administrative Code Rules 63G-1.002, 63G-1.004, 63G-1.007, and 63G-1.008, among others, setting forth the definitions and procedures for calculating the costs as between the state and the various counties. These rules were repealed as of July 6, 2010, and in their place, the Department adopted rules 63G- 1.011, 63G-1.013, 63G-1.016, and 63G-1.017. Although the previous rules defined “final court disposition,” for purposes of determining the counties’ responsibility for providing the costs of secure detention, the 2010 rules replaced this with a definition of “commitment,” so that the state was only responsible for days occurring after a disposition of commitment. This had the effect of transferring the responsibility for tens of thousands of days of detention from the state to the counties. In addition, the 2010 rules failed to provide a process by which the counties were only charged their respective actual costs of secure detention. In 2012, several counties challenged rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017 as an invalid exercise of delegated legislative authority because these rules replaced the statutory dividing line for the costs of secure detention with “commitment,” and because the rules resulted in the overcharging of counties for their respective actual costs of secure detention. On July 17, 2012, a Final Order was issued by the undersigned which agreed with the counties and found that the rules were an invalid exercise of delegated legislative authority. Okaloosa Cnty., et al. v. Dep’t of Juv. Just., DOAH Case No. 12-0891RX (Fla. DOAH July 17, 2012). On June 5, 2013, this ruling was affirmed on appeal. Dep’t of Juv. Just. v. Okaloosa Cnty., 113 So. 3d 1074 (Fla. 1st DCA 2013) (“2012 Rule Challenge”). The Department’s Response to the 2012 Rule Challenge No changes to the Department’s practices were made after the Rule Challenge Final Order was released in 2012. Rather, changes were not made until after the Rule Challenge decision was affirmed on appeal in June 2013. Shortly after the opinion was released by the First District Court of Appeal, the Department modified its policies and practices to conform with its interpretation of the requirements of that opinion, and informed the counties that “all days for youth in detention with a current placement of probation or commitment belong to the state.” At this time, the Department determined that “by their nature all VOPs [violations of probation] are attached to charges that have a qualified disposition and thus are a state pay.” In response to the appellate court decision, the Department implemented and published to the counties its interpretation that the counties were only responsible for detention days occurring prior to a final court disposition, and were not responsible for detention days occurring after a juvenile has been sentenced to commitment or probation, or is waiting for release after a dismissal of the charge. A statement to this effect was developed by the Department with input from multiple staff, and was to be a “clear bright line” setting “clear parameters” and a “final determination” that the Department could share with those outside the agency. However, no rules were developed by the Department at this time. In July 2013, the Department revised its estimate to the counties for Fiscal Year (“FY”) 2013-14 from what had been issued (previously). This revised estimate incorporated the Department’s analysis that included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed. The revised estimate also excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. At the time of the 2012 Rule Challenge, several counties had pending administrative challenges to the Department’s reconciliations for FYs 2009-10, 2010-11, and 2011-12. In September 2013, the Department issued recalculations of its final reconciliation statements to the counties for FYs 2009-10, 2010-11, and 2011-12. The recalculations were based upon the Department’s revised policies and practices and included in the state’s responsibility any detention days for youths in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and similarly excluded detention days resulting from a new law violation of probation. This resulted in large overpayments from the non-fiscally constrained counties to the state for these fiscal years. These recalculations were not merely an internal exercise, but rather were intended to notify the counties what they had overpaid for the fiscal years at issue, and were published and made available to the counties and public at large on the Department’s website. In December 2013, the Department entered into stipulations of facts and procedure to resolve three separate administrative proceedings related to final reconciliation amounts for FYs 2009-10, 2010-11, and 2011-12. Those stipulations of facts and procedure included the following definitions: The parties agree that “Final Court Disposition” as contained in section 985.686, Florida Statutes, and based on the decision of the First District Court of Appeal, means a disposition order entered by a court of competent jurisdiction, including an order sentencing a juvenile to commitment to the Department, or other private or public institution as allowed by law, placing the juvenile on probation, or dismissing the charge. The parties further agree that a “Pre- dispositional Day” means any secure detention day occurring prior to the day on which a Final Court Disposition is entered. A pre- dispositional day does not include any secure detention day after a juvenile has been sentenced to commitment or placed on probation, or is waiting for release after dismissal of a charge. (Petitioner’s Ex. 26) In addition to the above stipulations, the Department also stipulated to its recalculated amounts for each of these years, resulting in large overpayments from the counties. However, the Department refused to provide credits for these overpayment amounts. In November and December 2013, the Department issued a final reconciliation statement and revised final reconciliation statement to the counties for FY 2012-13, which included in the state’s responsibility any detention days for youth in detention with a current placement of probation or commitment, or where the charges against the youth had been dismissed, and likewise excluded these days from the collective responsibility of the counties, including detention days resulting from a new law violation of probation. Under the Department’s reconciliation statement for FY 2012-13, the counties were collectively funding approximately thirty-two percent (32%) of the costs of secure juvenile detention. The Department also submitted its legislative budget request for FY 2014-15 in October 2013. This legislative budget request was based on the Department’s independent judgment as required by sections 216.011 and 216.023, Florida Statutes,3/ and excluded from the counties’ collective responsibility all detention days relating to a violation of probation, including for a new substantive law violation. The request provided that “the department may only bill the counties for youth whose cases have not had a disposition either to commitment or probation.” The request also notes a shift in the counties’ collective obligations from 73 percent of the total costs to 32 percent of these costs “in order to bring the budget split in line with the June 2013 ruling by the First District Court of Appeal.” Under this interpretation, the Department projected a $35.5 million deficiency in its budget for FY 13-14 and requested an $18.4 million appropriation for detention costs from the Legislature. This request was funded in the General Appropriations Act for 2014-15. The Department did not ask for additional funding for past years that had been challenged by the counties. At this same time, a projection for the deficit for FY 2014-15 was developed by the Department staff based on the same interpretation of the state’s responsibility for detention days. There was no objection from the Department’s Secretary or the Governor’s Office to this interpretation of the state’s responsibility. Change in Interpretation Re New Law Violation Fred Schuknecht, then - Chief of Staff of the Department, testified that in response to the opinion of the First District Court of Appeal in June 2013, the Department adopted a broad interpretation of the ruling that final court disposition meant commitment, and also included all secure detention days incurred by probationers as postdisposition days. This included detention days for youths already on probation who committed new offenses and were then detained as a result of the new offense or because of the violation of probation resulting from the commission of the new offense. During the budgeting process for the 2014-15 Fiscal Year, the Department altered its interpretation of the 2012 Rule Challenge decision, and its newly-established practice relating to payment for all detention days involving probationers. The Department now proposes, through the challenged rules, to shift to the counties the responsibility for detention days occurring after a final court disposition of probation where there is a new law violation. Although the challengers assert that the changed interpretation was driven by the budget proposal submitted by the Governor’s Office in January 2014 (which did not utilize the Department’s prior interpretation) the Department specifically contends that it did not change its official position on this interpretation until the adoption of the state budget by the General Appropriations Act (GAA) in June 2014. While the Department stated it made its initial broad interpretation because it was “under the gun” to issue its cost sharing billing for FY 2013-2014 within two weeks of the appellate opinion, the Department continued to assert that interpretation in September 2013, when it published recalculations for FYs 2009-2010, 2010-2011, 2011-2012. Further, Mr. Schuknecht conceded that this interpretation had not changed at the time the Department’s legislative budget request was submitted in October 2013, or in November and December 2013, when the Department issued the reconciliation and revised reconciliation for FY 2012-2013. Likewise, this interpretation formed the basis for the stipulations signed by the counties and Department in December 2013. At hearing, testimony established that the Department’s interpretation that the state was responsible for all days of detention for probationers was formed after frequent discussions on this topic and with input from multiple staff involved in cost sharing, including Mr. Schuknecht (Director of Administration at that time), Vickie Harris (Budget Director), Mark Greenwald (Director of Research and Planning), the Chief of Staff, Deputy Secretary, the legal team, as well as the Department’s Secretary. For FY 2014-15, the Executive Office of the Governor proposed a recommended budget which was contrary to the Department’s initial interpretation, and included within the counties’ collective responsibility those detention days for a youth on probation charged with a new substantive law violation. This recommended budget proposed that the counties would be responsible for fifty-seven percent (57%) of the shared costs of secure detention, and that the state would be responsible for forty-three percent (43%). This is in contrast to the thirty- two percent (32%) the counties were paying under the Department’s initial interpretation of the Rule Challenge Decision. The Governor’s Office then asked the Department to amend its earlier submitted legislative budget request, to reflect the Governor’s budget because it wanted the Department’s request to match. Although the GAA for FY 2014-15 incorporated a cost- sharing split similar to that included in the Governor’s proposal, it differed from the governor’s budget recommendation. It was not until June 2014, when the GAA was adopted into law, that the Department asserts it officially changed positions. As stipulated by the parties, there is no language in the GAA for FY 2014-15 setting forth the policy behind the budget split for secure detention. The Proposed Rules differ from the Department’s initial interpretation of the requirements of the Rule Challenge decision and its earlier established policies and procedures regarding the same as implemented in June 2013, through at least early 2014. The interpretation set forth in the Proposed Rules results in a lessened budgetary impact on the state by shifting more detention days to the counties. At hearing, Mr. Schuknecht testified as to the rationale for the Department’s changed interpretation regarding the counties’ responsibility for detention days for a youth on probation charged with a new substantive law violation: Q. If you would, Mr. Schuknecht, please kind of talk about the highlights of that rule, and especially in relationship to the Court’s ruling in the previous rule challenge. A. Basically how we got here is, in June of 2013, the First DCA ruled basically supporting the – DOAH’s hearing, the final court disposition prior to that. Basically we determined the final court decision meant commitment. They said it can’t be just commitment. So at that time we took the broadest interpretation as well will actually include all probationers as part of the final court disposition and they would be post-disposition days. Subsequent to that, in effect, through the Governor’s Office as well as the Legislature, as well as ourselves, we realized basically by doing that we are including probationers with new offenses as post-disposition cases which, in effect, makes no sense. It’s logical that they be pre- disposition cases because there is no disposition on those cases with new offenses. Plus probationers would only be in detention because they have new cases. They wouldn’t be there otherwise. So, in fact, that’s how we – so that’s the main change in the rule, in effect, defining what pre-disposition means. Mr. Schuknecht’s explanation for the Department’s changed interpretation is consistent with the explanation given by Jason Welty, the Department’s previous Chief of Staff, during the June 6, 2014, Workshop, that “the Department’s original interpretation was, quite frankly, in error.” Cost of Detention Days for Juveniles on Probation The Challengers contend that all days in detention served by a juvenile on probation are the responsibility of the state, and not the counties. Accordingly, the Challengers contest the Department’s Proposed Rules which assign responsibility for detention days of juveniles with new law violations to the counties, and not the state. Much of the testimony and argument at the hearing focused on the Department’s definitions for predisposition and postdisposition, and how these definitions apply as to youth on probation status with the Department. These definitions are crucial, as they relate to how the costs are split amongst the state and the counties. Only the costs of predisposition detention days may be billed to the counties under section 985.686. Final court disposition is specifically defined by the Proposed Rules as the “decision announced by the court at the disposition hearing” including “commitment, probation, and dismissal of charges.” “Predisposition” is further defined as the “period of time a youth is in detention care prior to entry of a final court disposition.” Proposed Rule 63G-1.011(14). “Postdisposition” on the other hand, means “the period of time a youth is in detention care after entry of a final court disposition.” Proposed Rule 63G-1.011(15). However, the definitions do not stop with this general language. Proposed Rule sections 63G-1.011(14)(b) and (15)(b) provide that it is the counties’ responsibility to fund the costs for days when a youth is on probation and is charged with a new law violation. These definitions are implemented through the Proposed Rules relating to the estimate and reconciliation processes. The Department argues that youth who are on probation and commit new offenses may be held in secure detention for the new offense but cannot be legally held in secure detention on the underlying violation of probation. However, the Department’s position would appear to be counter to the express language of several statutory provisions. Section 985.439(4) provides in relevant part: Upon the child’s admission, or if the court finds after a hearing that the child has violated the conditions of probation or postcommitment probation, the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation. In each such case, the court shall enter a new disposition order and, in addition to the sanctions set forth in this section, may impose any sanction the court could have imposed at the original disposition hearing. If the child is found to have violated the conditions of probation or postcommitment probation, the court may: Place the child in a consequence unit in that judicial circuit, if available, for up to 5 days for a first violation and up to 15 days for a second or subsequent violation. Place the child in nonsecure detention with electronic monitoring. However, this sanction may be used only if a residential consequence unit is not available. If the violation of probation is technical in nature and not a new violation of law, place the child in an alternative consequence program designed to provide swift and appropriate consequences to any further violations of probation. Neither statute nor Department rules define what is meant by a “technical” violation of probation. However, retired juvenile court judge Frank A. Orlando, accepted as an expert in juvenile detention issues, explained at hearing that: A technical violation in my opinion is something that doesn’t involve a law violation. It is a condition of probation. It would be a curfew. It could be going to school. It could be staying away from a family, a victim, or staying away from a place. It could be not obeying the probation officer, him or herself. In that sense they are technical violations of probation, but they are both violation of probation. In addition, section 985.101(1) provides that a juvenile may be “taken into custody” under chapter 985 for, among others, “a delinquent act or violation of law, pursuant to Florida law pertaining to a lawful arrest,” and “[b]y a law enforcement officer who has probable cause to believe that the child is in violation of the conditions of the child’s probation, home detention, postcommitment probation, or conditional release supervision; has absconded from nonresidential commitment; or has escaped from residential commitment.” § 985.101(1)(b), (d), Fla. Stat. However, this provision also expressly provides that “[N]othing in this subsection shall be construed to allow the detention of a child who does not meet the detention criteria in part V.” Part V of the Act includes section 985.255, which sets forth the detention criteria, and provides in pertinent part: Subject to s. 985.25(1), a child taken into custody and placed into secure or nonsecure detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if: The child is alleged to be an escapee from a residential commitment program; or an absconder from a nonresidential commitment program, a probation program, or conditional release supervision; or is alleged to have escaped while being lawfully transported to or from a residential commitment program. Thus, the undersigned is persuaded that sections 985.439(4), 985.101(1), and 985.255 all support a finding that a violation of probation, not associated with a new violation of law, may under some circumstances result in a new disposition of secure detention. However, pursuant to the Proposed Rules, under these circumstances the state would continue to be responsible for the cost of the secure detention. As explained at hearing, there is an idiosyncrasy in chapter 985 regarding secure detention for juveniles who have been charged with a violation of probation or violating a term of their conditional release. Under chapter 985, a child taken into custody for violating the terms of probation or conditional release supervision shall be held in a consequence unit. If a consequence unit is not available, the child is to be placed on home detention with electronic monitoring. § 985.255(1)(h), Fla. Stat. These consequence units have not been funded by the Florida Legislature for a number of years. However, the juvenile justice system has found a practical method to accommodate the nonexistence of these “consequence units.” For technical violations of probation, the courts often convert the violations of probation to a contempt of court, and will hold the juvenile in detention on this basis. This contempt of court procedure may also be used by the courts to detain a juvenile in secure detention for a violation of probation based on a new law violation. Pursuant to section 985.037, a juvenile who has been held in direct or indirect contempt may be placed in secure detention not to exceed five days for the first offense, and not to exceed 15 days for a second or subsequent offense. As noted by Judge Orlando and Seventh Judicial Circuit Judge Terrill J. LaRue, an order to show cause for indirect criminal contempt is the mechanism used to place a juvenile in secure detention for a violation of probation or conditional release. In addition, the probation is a significant factor that weighs heavily into the Department’s decision to securely detain the juvenile, and in large part determines whether the juvenile will be detained. For a youth who is on probation and is charged with a new substantive law offense, the Department, pursuant to its rules and policies, determines whether the youth will be detained in secure detention based on the Department’s Detention Risk Assessment Instrument (“DRAI”). § 985.245, Fla. Stat.; rule 63D-9.002. Under the DRAI, if the child scores 0-7 points, the child is not detained; 7-11 points, the child is detained on home detention; for 12 points or more, the child is detained on secure detention. For a youth who is on probation, the underlying charge for which that youth was placed on probation and/or the “legal status” of the youth itself will always be taken into account under the DRAI and will make secure detention significantly more likely than had the youth not been on probation on a number of fronts. This is also true for a youth on commitment status, in the case of conditional release. The highest scoring underlying charge may be used to assess the juvenile for probation if the new law violation does not score enough points for the juvenile to be securely detained. Therefore, there are days served in secure detention based on the scoring of the underlying charge for which the juvenile is on probation, and not the new law violation. In addition, there are a number of points resulting from the underlying charge for which the juvenile is on probation, regardless of whether the DRAI is scored on the new law violation or the underlying charge. A juvenile on probation will always get points purely for his or her legal status of probation. The number of points depends on the amount of time since the last adjudication or adjudication withheld. Six points is assigned for active probation cases with the last adjudication or adjudication withheld within 90 days. Two points are assigned if the last adjudication or adjudication withheld was more than 90 days ago. Similarly, the legal status of commitment, in the case of conditional release, also results in points towards secure detention. The prior adjudication or adjudication withheld which resulted in the probation or commitment status would also score points under the prior history section of the DRAI. In many cases, the underlying charge for which the youth is on probation will be the deciding factor regarding whether the youth is held in secure detention. Thus, the DRAI is significantly affected by a probationary status which adds additional points, and can trigger secure detention, regardless of the nature of the new law violation. In addition, a trial judge has the discretion to place a youth in secure detention on a violation of probation for committing a new law offense even when the score on the DRAI does not mandate secure detention. The Juvenile Justice Information System (“JJIS”) is an extensive database maintained by the Department, and utilized during the process of billing the counties for secure juvenile detention. The reason for the detention stay can be readily ascertained based on information entered into JJIS at the time a juvenile is assessed and detained. For instance, in the case of a violation of probation, there is always a referral for a violation of probation entered by the probation officer. This is true whether the violation is a new law violation or a technical violation of the terms of the probation. In addition, the Department can also ascertain from JJIS whether the juvenile was scored on the new law violation or, alternatively, the underlying charge which resulted in probation. The Department concedes that it can determine, in any given instance, why a juvenile has been detained. As acknowledged by the Department, the responsibility for days, whether predisposition or postdisposition, should be based on the reason for the detention. Probation is considered a postdisposition status. Likewise, detention days of juveniles on probation are postdispositional, and the financial responsibility of the State. Under the Proposed Rules, the only exception are those instances in which a youth is on probation and is detained because the youth is charged with a new violation of law, in which case the detention days prior to final court disposition on the new charge are the responsibility of the counties. This finding is further supported by the Department’s treatment of juveniles on conditional release, which is also a postdispositional status. When a youth is on conditional release with the Department, the youth is on supervision similar to probation supervision. Conditional release and probation contain the same standard conditions. The only essential difference between a youth on “conditional release” and a youth on probation is that a youth on conditional release has the status of commitment rather than probation. There is no real difference in how a probation officer treats a youth on conditional release or a youth on probation and the DRAI does not provide any distinction for the two legal statuses. The Department considers both probation and conditional release qualified postdispositional statuses. Under the Proposed Rules, the counties pay for detention days for youth on probation who commit a new law violation. This is true regardless of whether the youth would be placed in secure detention but for the probation. However, detention days incurred by the same youth who commits a technical violation of probation are deemed the responsibility of the state, since, under the Proposed Rules, the youth has not been charged with a new violation of law. Under the Proposed Rules, when a youth on conditional release commits either a new law violation or technical violation of conditional release and is placed in secure detention, those detention days are to be paid by the State. The Two Day Rule As part of the Notice of Change, the Department added a provision referred to as “the Two Day Rule” to the definitions for pre and postdisposition. The Two Day Rule provides that detention days where the youth is on probation are the responsibility of the state “unless the youth is charged with a new violation of law that has a referral date between zero and two days prior to the detention admission date, as determined by subtracting the referral date in JJIS from the detention admission date in JJIS.” Proposed Rule 63G-1.011(15)(b). Despite conceding that it knows why juveniles are being detained, the Department included the “Two Day Rule” in the Proposed Rule “[b]ecause it is difficult to determine the level of accuracy in the aggregate looking at thousands of cases at once.” Thus, the Two Day Rule captures when the Department receives a referral date for a new criminal charge and presumes that if a juvenile is put in secure detention within two days of that referral date, the detention is for that new charge. In some instances, detention days that should be treated as state days would in fact be treated as county days under the “Two Day Rule.” Mark Greenwald, Director of Research and Planning for the Department, testified: Q. Well, let’s see how factually this would work is that there is a referral for a charge, a new offense, and the youth is detained the next day on a contempt unrelated to that new charge. Isn’t that day going to now be--he is going to be detained because of a violation of the law because of your two-day rule? A. Under the rule, yes, the open charge would count. Q. But if he was a probationer and it was a contempt, that would not have been a county day. That would be a State day. A. Yes. Q. But now because of the two-day rule we will now treat that as a county responsibility and county responsibility for the cost? A. Yes. Other examples were cited in the testimony, such as where there was a pick-up order for a youth on probation who had absconded. Where there was also a new charge, the detention days would be billed to the county, even if the pick-up order was issued prior to the new law violation. Mr. Greenwald testified that when the Department decided to adopt the Two Day Rule, it had done no analysis to determine whether a One Day Rule or a Three Day Rule would more accurately identify probationary youths placed in detention due to a new law violation. Both Judges Orlando and LaRue expressed uncertainty regarding the applicability and utility of the Two Day Rule, noting that the Two Day Rule does not have any correlation or relationship to when or how juveniles are placed in secure detention for violations of probation. Judge LaRue further indicated that the term “referral date” as referenced in the Two Day Rule has no impact on what he does “whatsoever” and is a term: I’ve never heard before. I don’t use that term. I’ve never heard the term. This is something that, in reviewing this potential rule change here – or the rule change, I should say, that’s something I came across and scratched my head a little bit about exactly what it means. I think I know what it means. But it’s not a term that I use – it’s not a term of art, and it’s not a term that I use generally. The evidence adduced at hearing did not establish a rational basis for inclusion of the Two Day Rule provision in the definitions of pre and postdisposition. Notably absent was any credible evidence that use of the Two Day Rule would accurately identify detention days related to new law violations by probationers. To the contrary, the evidence established that use of a blanket metric, arbitrarily set at two days, would under several scenarios improperly shift responsibility for detention days to the counties. Moreover, given the capabilities of the JJIS, there is simply no reason to “assume” that a detention has resulted from a new law violation if within a given period of time from referral, when the Department has the ability to accurately determine the actual reason for the detention. Estimates, Reconciliation and Actual Costs At the start of the fiscal year, the Department provides an estimate to the counties of their respective costs of secure detention which is broken down into 12 installments that the counties pay on a monthly basis. At the end of the fiscal year, the Department performs a reconciliation of those costs based on the “actual costs” and sends a statement to each county showing under or overpayment, and providing for debits and credits as appropriate. The credits or debits would be applied to the current year billing, although they would relate to the previous fiscal year. Proposed Rule 63G-1.013 provides the process for calculating the estimate to each county at the beginning of the fiscal year. As part of this process, the Proposed Rule provides that the Department shall estimate “detention costs, using the current year actual expenditures projected through the end of the fiscal year, with necessary annualized adjustments for any new legislative appropriations within the detention budget entity.” The Department has modified its process in the Proposed Rules so that the estimate of costs is based, to a certain extent, on actual expenditures from the prior year, instead of the appropriation. However, the estimate process also takes into account the appropriation for the upcoming fiscal year, and a portion of the estimate of costs is still based on the appropriation. The Department concedes that there is a need for it to calculate the estimate as accurately as possible, and that there have been occasions in the past where the Department has not provided the counties credits owed as part of the reconciliation process. It is also clear from the record that credits for overpayments have not been provided by the Department to the counties for several fiscal years, beginning in FY 2009-10. Proposed Rule 63G-1.017 provides the annual reconciliation process at year end for determining each county’s actual costs for secure detention. This process includes the calculation of each county’s actual cost which is determined by the number of detention days and a calculation of the actual costs. The total “actual costs” for secure detention are divided by the “total number of service days” to produce an “actual per diem,” which is then applied to each county’s detention days to calculate each county’s share of the actual costs. Proposed Rule 63G-1.011 provides a definition for “actual costs” as follows: [T]he total detention expenditures as reported by the department after the certified forward period has ended, less $2.5 million provided for additional medical and mental health care per section 985.686(3). These costs include expenditures in all fund types and appropriations categories (Salaries & Benefits, Other Personal Services, Expenses, OCO, Food Products, Legislative Initiatives, Fiscally Constrained Counties, Contracted Service, G/A-Contracted Services, Risk Management Insurance, Lease or Lease- Purchase of Equipment, Human Resources Outsourcing, and FCO-Maintenance & Repair). The challengers assert that the proposed rules relating to the reconciliation process are vague, internally inconsistent, and inconsistent with statutory requirements contained in the law implemented. These include, but are not limited to: (1) the definition of actual costs fails to include an exclusion for “the costs of preadjudicatory nonmedical educational or therapeutic services” pursuant to section 985.686(3); (2) the definition of actual costs is over broad by including “expenditures in all fund types and appropriations categories;” and (3) the Proposed Rules fail to provide for input from the counties, as set forth in section 985.686(6). The Proposed Rules do not provide for input from the counties regarding the calculations the Department makes for detention cost share.
The Issue Determination, after remand, of an appropriate award for reasonable attorneys’ fees and costs incurred by Petitioners in consolidated appeals.
Findings Of Fact As the First District has determined Petitioners’ entitlement to an award of fees, the only issue remaining to be determined at the time the above-styled case was opened after remand was the amount of fees and costs. After a telephonic status conference and the scheduling of this case for a final hearing, on June 1, 2017, the parties to this case filed a Stipulation for Entry of Agreed Final Order for Appellate Attorneys’ Fees and Costs (Stipulation). In the Stipulation, the parties agreed to the entry of a final order for the award of $35,658.03 as reasonable attorneys' fees and $192.87, for taxation of costs incurred, in the consolidated appeals, to be paid within 30 days from the entry of a final order thereon. The amounts for fees and costs set forth in the Stipulation are consistent with the attachments to the Motion.
The Issue This is a rule challenge brought pursuant to section 120.56, Florida Statutes,1/ to existing Florida Administrative Code rules 63G-1.011, 63G-1.013, 63G-1.016, and 63G-1.017, (the "Challenged Rules"), adopted by the Department of Juvenile Justice (Department). At issue is whether some or all of the challenged rules constitute an invalid exercise of delegated legislative authority as defined by section 120.52(8), Florida Statutes. The challengers allege the rules are invalid on three grounds: The rules modify the dividing line between county and state responsibility for the costs of secure juvenile detention from "final court disposition" to "commitment"; The rules fail to implement the requirement that the counties are only responsible for the "actual costs" of secure juvenile detention for the period of time prior to final court disposition; The rules inappropriately utilize an appropriations bill to modify the amount Petitioners are required to pay for predisposition costs under section 985.686, Florida Statutes.
Findings Of Fact The Parties Respondent, the Department, is the state agency responsible for administering the cost sharing requirements in section 985.686, Florida Statutes, for juvenile detention care. Petitioners and Intervenors are political subdivisions of the State of Florida and are non-fiscally constrained counties subject to the cost sharing requirements of section 985.686. Petitioners and Intervenors are substantially affected by the application of Florida Administrative Code Rules 63G- 1.010 through 63G-1.018. (Joint Pre-hearing Stipulation). As such, the Challengers have standing to initiate this proceeding. The Implementing Statute and the Challenged Rules The statutory process governing the shared county and state responsibility for secure juvenile detention was adopted in 2004, but did not go into effect until 2005.4/ On July 16, 2006, the Department promulgated rules 63G- 1.002, 63G-1.004, 63G-1.007, and 63G-l.008, among others, which set forth definitions and formulated procedures for calculating the shared costs of juvenile detention between the State of Florida and the various counties (Old Rules). The Old Rules were repealed as of July 6, 2010, and, in their place, the Department adopted the Challenged Rules 63G- 1.0ll, 63G-1.013, 63G-1.016, and 63G-1.017. The Challenged Rules purport to implement section 985.686, which provides that each county is responsible for paying the costs of providing detention care "for juveniles for the period of time prior to final court disposition." § 985.686(3), Fla. Stat. The statute establishes a cost-sharing system whereby each non-fiscally constrained county is required to be individually provided with an estimate of "its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition," based on "the prior use of secure detention for juveniles who are residents of that county, as calculated by the department." § 985.686(5), Fla. Stat. (emphasis added). Section 985.686(1) requires non-fiscally constrained counties and Respondent to share the costs of "financial support" for "detention care" for juveniles who are held in detention centers operated by Respondent. Section 985.686(3) requires Petitioners to pay the costs of detention care "for the period of time" prior to final court disposition (predisposition care). Respondent must pay the costs of detention care on or after final court disposition (post-disposition care). Detention care is defined in section 985.686(2)(a) to mean secure detention. Secure detention is defined in section 985.03(18)(a), for the purposes of chapter 985, to include custody "pending" adjudication or disposition as well as custody "pending" placement. Each county must pay the estimated costs at the beginning of each month. At the end of the state fiscal year, "[a]ny difference between the estimated costs and actual costs shall be reconciled. . . " Id. The Challenged Rules Among the relevant changes made in the Challenged Rules, the Department replaced the definition of "final court disposition" in rule 63G-1.002 with a definition for "commitment" in rule 63G-1.011. Specifically, Old Rule 63G- 1.002, states that "final court disposition" means "the date the court enters a disposition for the subject referral." This definition was replaced by rule 63G-1.011 with a definition of "commitment," which "means the final court disposition of a juvenile delinquency charge through an order placing a youth in the custody of the department for placement in a residential or non-residential program. Commitment to the department is in lieu of a disposition of probation." Rule 63G-1.011(8) includes a definition for "Pre- commitment" that was not included in prior rule 63G-1.002. "Pre-commitment" means "those days a youth is detained in a detention center prior to being committed to the department." The newly-defined terms are incorporated in the challenged rules governing calculation of the estimated funding (63G-1.013); monthly reporting (63G-1.016); and in the calculation of days for the annual reconciliation (63G-1.017). In rule 63G-1.013(b) the Counties' estimated funding is determined by, "[t]he total number of pre-commitment service days in secure detention," which include "all days up to but not including the date of commitment to the department." The rule also requires that counties pay a portion of "the total pre- commitment service days for all counties for the same time period to arrive at each county's percentage of the total." Challenged Rule 63G-1.016 requires the Department to generate a monthly web-based utilization report to provide each county's "actual usage" for the previous service month. The report includes information on each youth including the "commitment disposition date, if available." In Challenged Rule 63G-1.017, "commitment disposition date" is used to determine the counties' actual costs. The Department's previous rule 63G-1.002 acknowledged that a "final court disposition" might result in several alternative dispositions of a delinquency charge, which, in addition to commitment, could include probation or dismissal of a charge. The challengers contend that under the new rules the counties are responsible for all "Pre-commitment" detention costs regardless of whether the costs accrue after a court enters a final disposition in the case that does not involve commitment of a youth to the custody of the Department for placement in a residential or non-residential program. Commitment is a subset of final court disposition, according to the challengers, since there are other types of dispositions other than commitment. By adopting the current definition of "commitment" in rule 63G-1.011, the challengers contend that the Department has impermissibly restricted and narrowed the term "final court disposition" in violation of the implementing statute. Navigating the Juvenile Justice System In order to determine the validity of the Challenged Rules it is necessary to understand how juveniles accused of committing a delinquent act are processed in Florida. Without objection, the final hearing testimony of the Honorable Anthony H. Johnson in DOAH Case No. 10-1893, et al., was received in evidence. Judge Johnson is the Circuit Administrative Judge of the Juvenile Division, Ninth Judicial Circuit. Judge Johnson explained the sequence of events that occurs after a juvenile has been arrested and accused of delinquency: Okay, we’ll begin by the arrest of the juvenile. And the juvenile is then taken to the JAC, the Joint Assessment Center, where a decision is made whether to keep the juvenile in detention or to release the juvenile. That decision is based upon something called the DRAI, the Detention Risk Assessment Instrument. How that works probably is not important for the purpose of this except to know that some juveniles are released, and some remain detained. The juveniles that are [sic] remained detained will appear the following day or within 24 hours before a circuit judge, and it would be the duty judge, the emergency duty judge on the weekends, or a juvenile delinquency judge if it’s regular court day. At that time the judge will determine whether the juvenile should be released or continue to be retained. That’s also based upon the DRAI. If the juvenile is detained, he or she will remain for up to 21 days pending their adjudicatory hearing. Everything in juvenile has a different name. We would call that a trial in any other circumstance. Now the 21 days is a statutory time limit: however, it’s possible in some cases that that 21 days would be extended. If there is a continuance by any party, and for good cause shown, the judge can decide to keep the juvenile detained past 21 days. That’s relatively unusual. It’s usually resolved, one way or the other, in 21 days. After the trial is conducted, if the juvenile is found not guilty, of course he or she is released. If they’re found guilty, then a decision is made about whether or not they should remain detained pending the disposition in the case. The disposition—there needs to be time between the adjudication and the disposition so that a pre-disposition report can be prepared. It’s really the Department of Juvenile Justice that decides whether or not the child will be committed. We pretend that it’s the judge, but it’s not really. And that decision is made—is announced in the pre-disposition report. If the child is committed at the disposition hearing, the judge will order the child committed to the Department. Now, one or two things will happen then. Well, maybe one of three things. If the child scores detention--let me not say scores. If it’s a level eight or above, then the child will remain detained. If it’s not that, the child will be released and told to go home on home detention awaiting placement. Here’s where things get, I think, probably for your purposes, a bit complex. Let’s say at the disposition, the child--the recommendation of the Department is not that the child be committed, but that the child be placed on probation. Then the child goes into the community. The disposition has then been held, and the child’s on probation. If the child violates probation, then the child comes back into the system, and then you sort of start this process again, on the violation of probation. If the child is found to have violated his or her probation, then you go back to the process where the Department makes a recommendation. Could be commitment, it could be something else. The child may be detained during that time period. Often what will happen is the misconduct of the child will be handled in a more informal manner by the court. The court may decide instead of going through the VOP hearing, violation of probation, I’m going to handle this by holding the child in contempt for disobeying the court’s order to go to school, to not use drugs, or whatever the violation was. In that case, the child may be detained for contempt, for a period of 5 days for the first offense, or 15 days for a subsequent offense. Based upon the testimony of Judge Johnson, as well as reference to the applicable statutory provisions,5/ the following flowchart maps the "throughput" of accused juvenile delinquents in Florida's juvenile justice system from the time of arrest until their release from the system: Court Appearance (within 24 hrs.) Trial (adjudication hearing) Guilty Verdict Not Guilty Verdict (Release) Max 21 days Pretrial Detention Joint Assessment Center (D.R.A.I.)* Release FLORIDA’S JUVENILE JUSTICE SYSTEM Arrest Release Detention Successful V.o.P Release Max 15 days Disposition Hearing Predisposition Report Prepared by DJJ) V.o.P. Hearing Probation Conditional Release Commitment to DJJ or DCF Agency Completion of residential or non- residential rehabilitation program Committed to DJJ or DCF-Licensed Child Caring Agency but Sent Home Pending Placement Commitment to DJJ and Detained Pending Placement Contempt Other Probation * Detention Risk Assessment Instrument Consistent with Judge Johnson's testimony and section 985.433, once a juvenile has been adjudicated delinquent there are two options available to the court at the disposition hearing: commitment or probation. If the court determines to commit the juvenile, its commitment options are circumscribed by section 985.441, which provides in relevant part: 985.441 Commitment.— The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing: Commit the child to a licensed child- caring agency willing to receive the child; however, the court may not commit the child to a jail or to a facility used primarily as a detention center or facility or shelter. Commit the child to the department at a restrictiveness level defined in s. 985.03. Such commitment must be for the purpose of exercising active control over the child, including, but not limited to, custody, care, training, monitoring for substance abuse, electronic monitoring, and treatment of the child and release of the child from residential commitment into the community in a postcommitment nonresidential conditional release program. If the child is not successful in the conditional release program, the department may use the transfer procedure under subsection (4). Commit the child to the department for placement in a program or facility for serious or habitual juvenile offenders in accordance with s. 985.47. Section 985.03(32) defines “licensed child-caring agency” as a person, society, association, or agency licensed by the Department of Children and Families to care for, receive, and board children. Thus, a child may be committed to the custody of an "agency" under the auspices of the Department of Children and Families, or committed directly to the custody of Respondent. Section 985.433 imposes additional requirements on a court which has decided to commit a juvenile offender to the custody of DJJ: If the court determines that the child should be adjudicated as having committed a delinquent act and should be committed to the department, such determination shall be in writing or on the record of the hearing. The determination shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department, including any determination that the child was a member of a criminal gang. When a court's disposition of a juvenile delinquent is probation rather than commitment, section 985.433 applies in relevant part: If the court determines not to adjudicate and commit to the department, then the court shall determine what community-based sanctions it will impose in a probation program for the child. Community-based sanctions may include, but are not limited to, participation in substance abuse treatment, a day-treatment probation program, restitution in money or in kind, a curfew, revocation or suspension of the driver’s license of the child, community service, and appropriate educational programs as determined by the district school board. Department Implementation of its "Commitment" Definition The Juvenile Justice Information System (JJIS) is the Department's statewide information system that tracks all delinquency referrals, arrests, placements and disposition data associated with every youth arrested in Florida. Historically, information was pulled from JJIS to determine the number of days billed to the counties. Once a disposition order was entered on a delinquency petition charge, assigning a youth to probation, commitment, or other possible outcomes, the system would "stop billing" the counties as of the date of the order, and any subsequent detention days would be assigned to the State. Under the new "commitment" definition as set forth in the Challenged Rules (and as implemented by JJIS), the Department's information system only looks for a "qualifying disposition to a commitment status" or placement on conditional release. All other days are considered pre-disposition, and therefore the responsibility of the counties. This change has narrowed the types of dispositions captured by the computer coding. Although it is possible to obtain disposition dates from JJIS based on a written disposition order for dispositions such as probation or dismissal of the charge, that information is no longer used in the cost sharing system or provided to the counties unless it is a commitment disposition. However, pursuant to Juvenile Procedure rule 8.115 (which governs disposition hearings), all disposition orders must not only include the disposition of each count, but also specify the “amount of time served in secure detention before disposition.” See, Fla. R. Juv. Pr. 8.115(d)(2). Thus, the Department could readily determine the number of predisposition detention days for all court dispositions, including probation, by accessing the information contained in the disposition order. The Challenged Rules shift a greater responsibility of costs to counties, because the Department only obligates itself to pay for one type of post-disposition expense, i.e. those associated with commitment of the juvenile to the custody of the Department for placement in a residential or non-residential program. The Department assigns any other days to the counties, including utilization days occurring after a disposition has been entered assigning a juvenile to probation, or dismissing the charge. Other costs for post-disposition activities that result in secure detention, such as violation of probation, pickup orders, or contempt of court, that do not involve commitment become the responsibility of the counties. Additionally, any detention days for juveniles waiting for private placement outside of the Department, such as commitment to a licensed child caring agency, would also be counted as pre- dispositional and billed to the counties. The overall impact of the definitional change from "final court disposition" to "commitment" has been a reduction in the number of detention days assigned to the State, and an increase in the number of days assigned to the counties. This shift in days numbers in the tens of thousands. The Challenged Rules limit the state's statutory responsibility for detention costs by narrowing "final court disposition" to "commitment." The result is a shift in additional detention care costs to the counties in contravention of section 985.686. The Department attempted to defend its use of the term "commitment" as a reasonable interpretation of "final court disposition" through the testimony of its representative, Beth Davis. Ms. Davis explained that in the Department's view, probation, while a form of "disposition," is not a "final court disposition," because the "case is not closed" until the youth successfully completes probation. However, this interpretation ignores the fact that juvenile offenders committed to the Department often serve a term of probation following completion of their residential rehabilitation.6/ Under the Department's reasoning, there would be no "final court disposition" until those youths successfully completed their terms of post- commitment probation and their cases are closed. By this logic "commitment" would not accurately represent the dividing line between state and county responsibility, since "final court disposition" would not occur until successful completion of post-commitment probation. The Department's position in this regard is internally inconsistent and not supported by facts or logic. Accordingly, the Department's position that "final court disposition" does not occur until completion of probation is rejected. Under section 985.433(8), probation is one of the possible statutory outcomes of the disposition hearing, and this record does not support the Department's position that probation is any less a "final court disposition" than "commitment."7/ Also problematic to the Department's position is the situation created when a delinquent is placed on probation at the disposition hearing and subsequently violates the terms of probation. Under this scenario, the juvenile will be taken into custody8/ and brought before the court having jurisdiction. If the court determines a violation has occurred, rather than go through a formal violation of probation hearing, it may find the youth in contempt of court and order the child detained for up to five days for the first offense and up to 15 days for subsequent offenses.9/ According to Ms. Davis, the days during which the delinquent is detained for contempt of court are considered "predispositional" and therefore the financial responsibility of the counties. The above scenario highlights the unreasonableness of the Department's use of "commitment" as the line of demarcation for state and county responsibility. Under this scenario, a disposition hearing was held pursuant to section 985.433, and the court ordered a disposition of probation pursuant to 985.433(8). However, if the youth violates probation and consequently is held in contempt of court, predisposition days accrue to the detriment of the counties, notwithstanding the prior court disposition of probation. Change in Department Methodology for Determining Estimate and Reconciliation Amounts Billed to Counties. For the first two years of detention-cost sharing, the Department based a county's obligation on a per diem approach. The Department applied a methodology for billing counties their share of secure detention cost based on a "per diem rate," where each county paid an amount based on the number of their "predispositional days" times a cost per day calculated by the Department that applied to both pre and post-dispositional days. The cost per day was derived by dividing the total costs for secure detention program by the number of total utilization days. An estimate was provided based on the budgeted amount for detention, and a reconciliation was performed at the end of the year to “true-up” the amounts billed to the counties to the actual costs based on, at that time, a cost per day for the entire secure detention program. However, as a result of a challenge brought by Hillsborough County against the Department in DOAH Case No. 07- 4398, Administrative Law Judge Daniel Manry issued a Recommended Order on March 7, 2008, invalidating the Department's methodology under rule 63G-1.004, regarding the Department's process for providing estimates to the counties. Judge Manry concluded that the Department's per diem methodology conflicted with its procedures outlined in rule 63G-1.004. This rule requires that the Department determine the estimate based on the following: (2) Each County will receive a percentage computed by dividing the number of days used during the previous year by the total number of days used by all counties. The resulting percentage, when multiplied by the cost of detention care as fixed by the legislature, constitutes the county's estimated annual cost. "Cost of detention care" is defined in the Old Rules as "the cost of providing detention care as determined by the General Appropriations Act." (G.A.A.) Fla. Admin. Code R. 63G- 1.002(1). Significantly, this term was only utilized in relation to the estimate, and was not used with regard to the annual reconciliation process. Judge Manry did not make any findings or conclusions with regard to rule 63G-l.008, which governed the annual reconciliation process. Presumably, this is because the process provided in the Old Rules for the annual reconciliation is not the same as the process outlined for the estimate. Instead, rule 63G-1.008 provides only that the reconciliation statement "shall reflect the difference between the estimated costs paid by the county during the past fiscal year and the actual cost of the county's usage during that period." There was no requirement in rule 63G-1.008 that the reconciliation be based on anything within the G.A.A.; the only time the G.A.A was mentioned was with regard to the estimate. Beginning in FY 07-08, the Department began to apply a different approach that did not use a per-diem methodology, but instead calculated the percentage of each county's pre- dispositional days as compared to the other counties and multiplied that amount by the Shared Trust Fund. This methodology was applied not just to the estimate process, but also to the reconciliation process. Effective July 6, 2010, this new approach was specifically adopted by the Challenged Rules into the reconciliation process. Fla. Admin. Code R. 63G- 1.017. Impact of the New Approach on the Counties When the Department abandoned the cost per day approach it created an inequity and raised the cost to counties over that of the State for secure detention. This inequity is a result of a combination of several factors. Under the Department's revised approach, it allocates amongst the counties as a group the budgeted amount for the Shared Trust Fund as determined by the G.A.A. It assigns this amount to individual counties based on utilization numbers from the fiscal year two years prior to the current fiscal year. For example, for the estimate for FY 09-10, the utilization numbers for FY 07-08 were used. The counties are billed monthly based on this amount. As the year progresses, the Department expends amounts up to its budget authority to support the secure detention program from four funding sources,10/ regardless of whether these amounts are applied to pre- or post-dispositional expenditures. The final bill to each county is based on the annual reconciliation done at the end of the year. Under the Department's methodology adopted by the Challenged Rule 63G- l.017 in 2010, the Department allocates only the expenditures from the Shared Trust Fund amongst the counties based on a percentage of an individual counties' actual utilization numbers as compared to all other counties. However, because the Department makes no effort to expend funds from the Shared Trust Fund only for the costs of predisposition secure detention, there is no correlation between the expenditures made from this trust fund and the statutory responsibility of each county to pay its "actual costs" "for the period of time prior to final court disposition." Although counties are only authorized and obligated by the statute to pay for predispositional costs, the Shared Trust Fund, which contains the revenues from the county billings, is being used to fund both predispositional and postdispositional costs.11/ In effect, under the Challenged Rules the Department never "trues-up" the estimated amounts billed to each county with the respective county's statutory share of the actual costs as contemplated by section 985.686. The percentage of predispositional days of secure detention which are the counties' responsibility does not match the percentage of revenues allocated to the counties. This inequity establishes that the counties are in fact funding a portion of post-disposition detention days, which are the State's responsibility pursuant to statute. Indeed, on cross- examination Department witnesses specifically acknowledged that the legislature is underfunding the Department's statutory responsibility, and that the counties are subsidizing a portion of the state's share. The evidence established that for fiscal year (FY) 2007-08 alone, the counties paid $2,980,716 over the actual cost of pre-disposition days. The amount by which the counties have subsidized the state's share of detention costs in recent years is likely understated. This is because the Department began applying its definition of commitment in FY 2009-2010, rather than the statutory dividing line of "final court disposition." Because the Department does not track the dates of disposition other than for a commitment disposition, the extent of the effect of this definitional change is uncertain. However, evidence presented at hearing suggests that the effect on the costs allocated to the counties is substantial. Petitioners presented evidence of an alternative calculation of detention costs to the counties based on a cost per day methodology, similar to the methodology employed by the Department prior to the 07-08 fiscal year. For FY 08-09, Petitioners' expert calculated that the cost per day was $224, based on utilization days for both the counties and the state divided by the total expenditures for the secure detention program. For FY 09-10, this same calculation resulted in a cost per day of $255. By applying this cost-per-day figure, Petitioners' expert calculated that for FY 08-09, the non-fiscally constrained counties would be required to pay $72,507,456 as their portion of secure detention costs, as compared to the $90,859,820 the Department assessed these counties. Thus, these counties paid $18,352,364 more for detention cost sharing for 08-09 than they would have under the prior per diem methodology. Similarly, for FY 09-10, Petitioners' expert calculated that the non-fiscally constrained counties would be required to pay $80,205,660 under a cost-per-day analysis, as compared to the $85,317,526 these counties were assessed under the Department's current methodology. These counties paid $5,111,866 more for detention cost sharing for FY 09-10 than they would have under the prior per-diem methodology. In addition, because the definitional change to commitment was applied for this fiscal year, there is evidence that the dollar difference in the two methodologies is significantly understated for that fiscal year. This testimony is persuasive regarding impacts on the counties. In fact, the Department's own documents reflect that for FY 08-09, the counties had subsidized the state's portion of detention costs by $17,733,995. For FY 09-10, this number was $5,412,546. This analysis highlights the inequities in the Department's methodology, as promulgated in the Challenged Rules. For example, for FY 2008-09, the Department was paying $127 per day for their post-dispositional days, while the counties were paying $284 per day, more than double the Department's cost per day, despite the fact that a day of secure detention, whether pre- or post-dispositional, has the same actual cost. The annual reconciliation process as set forth in the Challenged Rules conflicts with section 985.686, since it results in counties being assessed more than the “actual costs” “for the period of time prior to final court disposition.” A preponderance of the evidence established that the Challenged Rules enlarge, modify and contravene chapter 985 and specifically section 985.686, Florida Statutes.
The Issue The issue in this case 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, 1 and Florida Administrative Code Chapter 63G-1.
Findings Of Fact The Department is the state agency responsible for administering the cost-sharing requirements of Section 985.686, Florida Statutes, regarding detention care provided for juveniles. Hillsborough County is not a "fiscally constrained county" as that term is defined in Section 985.686(2)(b), Florida Statutes. For the balance of this Recommended Order, the term "county" or "counties" will refer to counties that are not fiscally constrained. Section 985.686(1), Florida Statutes, provides that the "state and counties have a joint obligation, as provided in this section, to contribute to the financial support of the detention care provided for juveniles." Section 985.686(2)(a), Florida Statutes, defines "detention care," for purposes of this section, to mean "secure detention." 2/ Section 985.03(18)(a), Florida Statutes, defines "secure detention" to mean "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement." Section 985.686(3), Florida Statutes, provides in relevant part that each county "shall pay the costs of providing detention care . . . for juveniles for the period of time prior to final court disposition. The Department shall develop an accounts payable system to allocate costs that are payable by the counties." In summary, Section 985.686, Florida Statutes, requires each non-fiscally restrained county to pay the costs associated with secure detention during predisposition care, and the Department to pay the costs of secure detention during post- disposition care.3/ Each year, the Legislature determines the total amount of the appropriation for juvenile detention care and assigns a portion of the total to be paid by the counties through a trust fund, and a portion to be paid by the Department through general revenue. Section 985.686(5), Florida Statutes, sets forth the general mechanism for this allocation process: Each county shall incorporate into its annual county budget sufficient funds to pay its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition. This amount shall be based upon the prior use of secure detention for juveniles who are residents of that county, as calculated by the department. Each county shall pay the estimated costs at the beginning of each month. Any difference between the estimated costs and actual costs shall be reconciled at the end of the state fiscal year.4/ In 2007, Hillsborough County filed with the Department a petition that would be referred to the Division of Administrative Hearings and assigned Case No. 07-4398. In that petition, Hillsborough County complained that the Department was improperly calculating the counties' share of secure detention costs. The Department was arriving at a per diem rate by dividing the total detention budget (both the state's general revenue share and the counties' trust fund share) by the total number of predisposition and post-disposition days. Thus, the calculated per diem rate for the Department and the counties was the same. Hillsborough County argued that this methodology was inconsistent with both Section 985.686, Florida Statutes, and Florida Administrative Code Chapter 63G-1, because those provisions require that only the counties' share of the budget and detention days be used in calculating the counties' costs. Administrative Law Judge Daniel Manry agreed with Hillsborough County that the Department's methodology conflicted with Florida Administrative Code Rule 63G-1.004, and recommended that the Department calculate the costs of predisposition care in Hillsborough County using the methodology prescribed by rule. Hillsborough County v. Department of Juvenile Justice, Case No. 07-4398 (DOAH March 7, 2008). In a Final Order entered on June 4, 2008, the Department adopted Judge Manry's recommendation in all significant respects. In his Recommended Order, Judge Manry compared the actual calculation performed by the Department, which employed the total appropriation of $125,327,667.00, to the calculation required by Florida Administrative Code Rule 63G-1.004, which would have employed the amount appropriated for the counties' trust fund, $101,628,064.00. Hillsborough County was allocated 47,714 utilization days out of a total of 579,409 utilization days allocated to all counties, or 8.234 percent of the total. Multiplying the counties' trust fund total by the percentage of days allocated to Hillsborough County, in accordance with the rule, would have derived a gross assessment of $8,368,054.79. The Department deviated from the rule by defining the cost of detention to include the total appropriation, including the amount allocable to fiscally constrained counties and to the Department for post-disposition detention care, and dividing that number by the total number of utilization days (predisposition and post-disposition) to derive a per diem rate of $176.70 for all detention care. The Department then multiplied the per diem rate times the 47,714 days allocated to Hillsborough County to derive a gross assessment of $8,400,165.73 for Hillsborough County. Judge Manry recommended that the Department follow the rule and impose the "authorized" gross assessment of $8,368,054.79, rather than the higher number derived by deviating from the rule. The Department accepted Judge Manry's recommendation in its Final Order, albeit with a correction in rounding method that resulted in an estimated assessment of $8,369,013.00 for the 2007-2008 fiscal year. In light of the decision in Case No. 07-4398,5/ the Department followed the procedure set forth in Florida Administrative Code Chapter 63G-1 to arrive at a final reconciled assessment for the 2007-2008 fiscal year of $7,971,227.00, issued on January 30, 2009. Because Hillsborough County had paid estimated assessments of $8,431,267.00, the county was due a credit of $460,039.83.6/ The Department ceased the calculation of a per diem rate and confined its calculation to the predisposition costs and predisposition utilization days, i.e., those costs and days attributable solely to the counties. In the instant case, Hillsborough County argues that the Department should not be allowed to adjust the per diem rate that it established at the outset of the 2007-2008 fiscal year. The per diem rate of $176.70 should be applied to the actual number of predisposition days attributed to Hillsborough County, 37,528 as of January 30, 2009, for a final assessment of $6,631,197.60.7/ In contrast, Hillsborough County's actual year end cost of $7,971,227.00, divided by 37,528 days, would derive a per diem rate of $212.41. Hillsborough County argues that there is no merit or equity in this sharp rise in its per diem rate, despite its having more than 13,000 fewer actual utilization days than was estimated at the beginning of the year. Hillsborough County also argues that there is no merit in the drastically reduced per diem rate enjoyed by the Department due to its mid-year adjustment in the method of calculating costs. Hillsborough County's argument ignores the fact that the Department's mid-year adjustment in methodology was prompted by Hillsborough County's own successful attack on the methodology that derived the $176.70 per diem in the first place. As Hillsborough County itself successfully argued, the $176.70 per diem rate was in derogation of Florida Administrative Code Rule 63G-1.004, because it included costs not attributable to the counties. Hillsborough County could have had no reasonable expectation that the Department would continue to apply that rate after the result of DOAH Case No. 07-4398. Hillsborough County successfully argued that the counties' expenses should be calculated separately from the Department's expenses. It should therefore come as no surprise to the county that a separate calculation will derive different per diem rates for the counties and the Department. More importantly, the "per diem rate" is not the driver of the formula for calculating the costs of either the counties or the Department. Beth Davis, the Department's director of program accountability, testified that "the per diem rate is simply a mathematical calculation of estimated and/or final costs divided by utilization." The $176.70 per diem rate was an estimate calculated by the Department prior to the 2007- 2008 fiscal year, and would always have been subject to change once the actual utilization data and costs were known at the end of the year. When the actual number of predisposition days turns out to be smaller than the number estimated at the start of the fiscal year, the actual per diem rate will naturally be higher than the estimated per diem rate, absent a proportionate reduction in the legislatively appropriated costs. Hillsborough County did not dispute the actual utilization and cost data employed by the Department, and pointed to no rule or statute binding the Department to its first estimate of the per diem rate. In fact, the evidence established that the Department's final calculation was performed in accordance with Florida Administrative Code Chapter 63G-1 and in conformance to the Final Order in DOAH Case No. 07- 4398.8/ At the hearing, Hillsborough County also contested the Department's use of the final reconciliation from fiscal year 2005-2006 as the basis for its estimate of utilization days at the outset of the 2007-2008 fiscal year. Hillsborough County argues that Florida Administrative Code Rule 63G-1.004(1) requires that each county's share of predisposition detention costs be "based upon usage during the previous fiscal year. . ." Thus, the estimate for the 2007-2008 fiscal year should have been based on usage from the 2006-2007 fiscal year, not that for the 2005-2006 fiscal year. The Department explained that the Legislature meets and passes the budget for the next fiscal year in the spring, well before the end of the current fiscal year. The Department, therefore, is required to make its estimate of utilization days for the next fiscal year prior to the conclusion of the current fiscal year. The calculation for the estimated costs to the counties for fiscal year 2007-2008 was made early in 2007, while the fiscal year 2006-2007 was still underway. The most recent fiscal year with complete and reconciled data was the 2005-2006 fiscal year. The Department used the data from the 2005-2006 fiscal year to estimate the utilization days for the 2007-2008 fiscal year. At the time of the estimate, 2005-2006 was "the previous fiscal year." Under the circumstances, the Department's use of data from the 2005-2006 fiscal year did not violate Florida Administrative Code Rule 63G-1.004(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Hillsborough County's Petition, and making its proposed assessment final. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2010.
Findings Of Fact Petitioner, William Joel Keel, is an inmate at the correctional institution in Raiford, Florida. The Union Correctional Institution is a confinement facility operated by the Respondent, Department of Corrections. Section 945.091, Florida Statutes, permits the Respondent to adopt rules and regulations which modify the limits of an inmate's confinement under specified conditions. In January 1986, the figures of the statistics of the Department of Corrections reflect that there were approximately 1300 new commitment intakes per month. As the year 1986 progressed up through the months of April and May, this rate went up to approximately 1400 to 1600 per month, and in June, the figure stood at 1680 new commitment intakes; a new record. This record, however, has been broken since that time with a monthly intake of 1700. This large number of intakes created a terrible strain on the system which at the time had reached the federal standards and the state cap on inmate strength of 98 percent. These caps are placed on inmate strength as an effort to reduce the extreme safety and security problems created by inmate overcrowding. Because there was no new staff assigned to the Department of Corrections during the period of this increase, the staff/inmate ratio decreased as the hot summer months approached with the pressure that the climate imposes. Both interior and perimeter security of the various institutions within the Department of Corrections became more and more strained. The stress on staff caused an increase of absenteeism and illness. In addition, during this period of increased temperature and the concomitant stress related thereto, assaults and escapes become a greater and greater problem. In June 1986, the inmate population in the Florida prison system went up to 99 percent, a figure approved by the Florida Legislature due to a change brought about by an automated accounting system for prisoners. The achievement of the 99 percent plus prison population constituted an "emergency" due to overcrowding. As a result, it became obvious that there was a need to increase the number of inmates eligible for pre-expiration of sentence release. Consistent therewith was the need to establish a fair and objective way of placing inmates into this pre-release program that would protect the public. It was determined necessary to screen out from participation in the program certain prohibited types of inmates such as sex offenders unless they have been cleared and determined to be harmless. Up to the point of this determination, there appeared to be no substantial or valid guidelines. Another intent of the framers of this emergency rule was the desire to set up a procedure to remove inmates placed into the pre-release program from the program for cause in accordance with due process and constitutionality. It was deemed necessary to make clear within the parameters of the program and within the instructions for the program what had to be done and how it was to be accomplished. Nonetheless, the overriding consideration which constituted the "emergency" situation was the overpopulation in the prison system. As a result, the Department of Corrections in July 1986 promulgated and published its Emergency Rule 33ER 86-3 dealing with supervised community release which rule was to take effect upon being filed with the Department of State. This rule provided that all inmates who are within 90 days of their release date will be eligible for placement on supervised community release if they meet certain specified requirements. The emergency rule listed as the basis therefor, "this emergency rule is necessary to protect the health, safety and welfare of the people of the State of Florida by providing criteria that the inmates to be placed in supervised community release must meet to help assure the safety of the public." It goes on also to indicate that the rule is necessary to prescribe appropriate sanctions for inmates within the program in the event they violate the terms and conditions of the release agreement. The program provides that the initial process is for the staff within the Department of Corrections to screen all inmates within 90 days of the end of their sentence. It was envisioned as an extension of the work release program already existing. It is for that reason that only those on or eligible for work release can participate in this new program. This is consistent with the statutory mandate to include in pre-release programs only trustworthy inmates. Inmates are also screened to ensure that they have demonstrated this trustworthiness by performing well in the more restrictive work release program. Other methods of demonstrating trustworthiness and eligibility is for the inmate to invest time in self-improvement projects such as the GED Program and to have through his past practice, shown that he will return to the prison setting at night. This screening is done monthly of all inmates with a temporary release date of 120 days in the future. By so doing, this gives the staff 30 days to develop a plan for the individual inmate to ensure a stable environment for the inmate to go to. Prior to the implementation of Chapter 86-46, Laws of Florida, the statutory authority for the current program, there was no provision for the program in issue. As soon as this law was passed the legal staff within the Department of Corrections prepared the instant emergency rule as soon as possible. Had they not been able to do an emergency rule and had the regular rulemaking process been necessary, it is most likely that they would not have had established criteria and guidelines to apply to those who had to be released due to the fact that the prison population had reached the statutory cap. In fact, it was shown that state attorneys would not cooperate with the Department of Corrections and process violations of the program unless there were specific guidelines contained therein, and, since it was necessary to reduce the inmate population, it was therefore necessary to utilize the emergency role process. With that in mind, the safety of the public into which these inmates would be released was the primary concern and generated the need to ensure that only qualified and safe inmates were released. Under the new statute and the emergency rule, 1125 inmates have been released as of the date of the hearing. Approximately 750 inmates are in the program at any given time. As a result of the implementation of this program, the prison population has dropped and remained within the new 99 percent of capacity state cap. Experience with the programs so far has shown that the inmates in the program have been guilty of only minor violations such as assault on witnesses, DWI, simple assault, and larceny. And all of these offenses came up after implementation of the emergency rule. In the case of misconduct by a released inmate which does not result in immediate charges and incarceration, such as leaving the county where placed or the state, the disciplinary team from the Department of Corrections will evaluate the inmate and impose the penalty. These penalties could include removal of gain time while still remaining within the program up to removal from the program and loss of gain time. Conditions of enrollment in the program include, as to the inmate, that he (a) stay in the area where assigned; (b) refrain from the use of drugs; (c) comply with instructions given; (d) pay court costs imposed; and (e) pay a $30 a month fee to the Department of Corrections to cover administrative costs. Though the emergency rule appears to be working satisfactorily, the Department of Corrections is in the process of regular rulemaking to adopt a permanent rule identical to the emergency rule in issue here.
The Issue Whether Respondent, Sonia N. Torres (Respondent), committed the misconduct alleged in the Administrative Complaint; whether Respondent violated the provisions of Subsection 943.1395(7), Florida Statutes (2008),1 and Florida Administrative Code Rule 11B-27.0011(4)(a); and, if so, what penalty should be imposed. See Pre-Hearing Stipulation, page 6, paragraph (9).
Findings Of Fact Respondent is a certified correctional officer in the State of Florida. Since May 28, 2002, she has held Correctional Certificate Number 202528. At all times material to the instant case, Respondent was employed as a correctional officer with the Orange County Corrections Department. Prior to the incidents complained of in this cause, there is no evidence that Respondent was disciplined for any employment deficiencies at her place of employment. Some time prior to March 2008, Respondent met and became romantically involved with an individual known in this record as Adonis Torres. Although they share the same last name, Respondent and Mr. Torres are not related. Mr. Torres’ mother is the babysitter for Respondent’s daughter. Mr. Torres is also identified as “Chino” in the record. Although she claims she was unaware of Mr. Torres’ prior criminal record, Respondent acknowledged that after she became aware of criminal allegations involving Mr. Torres, she continued to be romantically linked to him. In fact, during the time Mr. Torres was incarcerated in the Osceola County detention facility, Respondent maintained contact with him through letters, telephone calls, and visits to the correctional facility. The telephone conversations between Mr. Torres and Respondent were recorded. The audio recordings were transcribed, and Respondent was provided an opportunity to review the written contents of the conversations and to explain the comments made between the two. Respondent does not dispute the accuracy of the telephone call transcriptions. The transcripts used “inaudible” or such terms when the exact language of the callers could not be discerned. At all times material to the allegations of this case, Respondent considered herself to be Mr. Torres’ girlfriend. Many of the comments between the two during the telephone calls expressed familiarity typical of viewing themselves as a couple. For example, Respondent spoke about the bedspread she acquired for the bed they shared, efforts Respondent had made to obtain a pedicure for Mr. Torres’ mother, and comments regarding Mr. Torres’ anatomy. Respondent knew that Mr. Torres was charged with a drug violation and violation of probation. Although Respondent claimed she was in sympathy for Mr. Torres because his daughter had died, such contention has not been deemed credible, nor is it supported by the contents of the telephone conversations. Also, not credible were Respondent’s claims that she went along with Mr. Torres’ requests for contraband during their telephone conversations just to pacify him, or to play along with his comments. During numerous telephone calls between Respondent and Mr. Torres, they discussed items to be brought into the correctional facility. Pertinent to this case is the fact that Mr. Torres requested that Respondent smuggle tobacco, prescription pills, and marijuana into the jail for Mr. Torres. For all such requests, Respondent assented to the request. Respondent did not refuse the inmate, or indicate a disagreement with Mr. Torres’ requests during any of their telephone conversations. The conversations between the two detailed how Respondent was to tightly wrap the items in Saran Wrap to make them as small as possible. Mr. Torres stated that the items requested should be “as small as possible cause they going inside somebody.” Further, Mr. Torres on one occasion stated, he needed to use another inmate’s number, “so I can talk to you more freely.” For Respondent’s part, she asked on more than one occasion when she would be dropping off the items. At one point, Respondent expressed concern and questioned how she could “be sure that you’re [Mr. Torres] going to get your shit.” As to all proposed deliveries, Mr. Torres described when, what, and how Respondent was to deliver the items he sought. On one occasion, he directed Respondent to make the delivery in a Dunkin’ Donuts bag. On another occasion, the amount delivered was to be decreased and delivered in “his” and “her” cups tucked into a McDonald’s sack. At no time did Mr. Torres complain that Respondent had not delivered the items he sought, in the manner he had requested. Curiously, during one of the telephone conversations, Mr. Torres told Respondent he had sold cocaine to a correctional officer for over a year. Mr. Torres was surprised to see the officer at the detention facility where he was being detained. Despite the admission of Mr. Torres’ criminal activity, Respondent was undeterred in her devotion to him. So much so that she put approximately $1,200.00 into his account during his time of incarceration. According to Respondent, Mr. Torres was never found in possession of contraband at the Osceola County Corrections facility. Respondent denied that she had delivered any contraband into the facility. Notwithstanding such denial, Respondent engaged in planning with Mr. Torres that included her desire to smoke (presumably marijuana) with him when he obtained his release, his assertion that he intended to continue smoking marijuana even if he did not sell it, and their plans for romantic encounters. No conclusion is reached as to whether such comments were true, only that Respondent engaged in the conversations and did not explain comments, other than to suggest either she was impaired when she made the comments or just humoring Mr. Torres. Another issue raised by the telephone conversations were the slang comments made by Respondent and Mr. Torres. If Respondent and Mr. Torres did not contemplate illegal activity, why would they obscure the conversation using terms such as “dub” or “green stuff”? As explained by Officer McGriff, terms used by Respondent and Mr. Torres commonly refer to street language for marijuana. Respondent offered no credible explanation for the conversations described above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 8th day of November, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2010.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, to wit: termination of Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent has been the elected Sheriff of Alachua County, Florida, for 12 years. As such, he was, and is, a constitutional officer of the State of Florida and the chief law enforcement officer for Alachua County. Since January 1998, he has administered the Alachua County Jail. In his capacity as administrator of the jail he qualifies, strictly in his official capacity, as an "employer," pursuant to Chapter 760, Florida Statutes. Respondent Employer also may be referred to as "the Alachua County Sheriff's Office" (ACSO). Petitioner is an African-American female. At all times material, she was an employee of Respondent Employer, and "an aggrieved person," pursuant to Chapter 760, Florida Statutes. Respondent began administration of the jail in January 1998. Prior to that time, the Alachua County Board of County Commissioners operated the jail. Respondent assumed administration of the jail through a governmental interlocal agreement, subject to existing collective bargaining agreements and various other parameters encouraging continued employment of existing jail personnel. In January 1998, all current jail employees were required to complete new applications, subject to review to ensure compliance with the ACSO's employment standards. On her 1998 job application form, Petitioner answered questions concerning her physical limitations as follows: * * * Are you able to participate with or without accommodation in defensive tactics, firearms, or physical training, operation of a motor vehicle, or otherwise perform the duties set forth in the job description or task analysis related to the position for which you applied? - NO. This position may require a physical ability test. If such a test or examination is required, would you be able to take this test or examination with or without accommodation? - NO. Explain what accommodation(s) you would need to perform these tasks or take the test or examination. - LEFT BLANK. * * * The majority of former Alachua County Jail employees were hired by ACSO. Some employees who did not meet ACSO's requirements were not hired/transferred to the new employer. These were mostly employees with criminal records. It was Respondent's intent to try to retain jail employees, even if they were temporarily unable to perform their essential job functions, for up to 12 months. Petitioner, who had served as a detention officer at the jail from 1981 to 1998, was one of the employees who successfully made the transition and was hired by Respondent in January 1998. At all times material, Petitioner was a Certified Correctional Officer. Her certification only indicates that she had met minimum training requirements and the mandatory continuing professional training requirements, pursuant to Florida law. At the time of her hire/transfer in January 1998, Petitioner weighed 350 pounds and suffered from osteoarthritis and hypertension. Obesity, osteoarthritis, and hypertension have plagued Petitioner since before her hire/transfer. Also, at least since June 29, 1998, Petitioner has been unable to walk long distances. On that date, a podiatrist diagnosed her with "bone spurs" in both feet. She submitted a Health and Work Status Report to the Employer stating Petitioner should only sit 50 percent, stand 50 percent, walk 50 percent, and climb stairs 10 percent. These figures add up to more than 100 percent, and the undersigned interprets the report, in the light of Petitioner's testimony, to mean that the physician was restricting her to no more than the respective percentages of each listed activity. The June 29, 1998, report went on to say that Petitioner should not use her feet for extended periods, perform physical force restraints/combat, or stressful work. As a result, ACSO placed Petitioner on temporary restricted duty (TRD). Petitioner's testimony suggested that, at some point, she recovered from the foregoing "temporary" restrictions, and a subsequent November 26, 2002, memorandum from the Employer (see Finding of Fact 45) suggests that sometime prior to March 6, 2002, Petitioner was returned to regular duty, minus the June 29, 1998, physical restrictions. (See Findings of Fact 35-37). However, it is not clear for what period of time between June 29, 1998, and March 6, 2002, Petitioner remained on TRD. There was no requirement of a Physical Agility Test (PAT) during Petitioner's 18 years of service at the jail prior to ACSO taking over jail management, and Petitioner was not required to take and pass a PAT in order to be hired/transferred to the ACSO regime in 1998. The jail employed more than 300 detention officers. Detention officers were subject to being assigned to any area within the jail. The written Job Description for Detention Officer has, at all times material, required ". . . maintaining physical custody and control of inmates . . ." and ". . . receiving and processing inmates, enforcing disciplinary procedures for the control of inmate behavior." Nowhere does Petitioner's written job description use the word, "running," but it specifies the following "physical requirements," with or without, a PAT in place: E. PHYSICAL REQUIREMENTS Sit, stand or walk for moderate periods. Have good close, distant, color, peripheral, depth and adjusted vision. Hear at normal range or with accommodation. Speak, read, write, and understand English fluently. Lift/carry 100+ pounds. Climb, balance and reach with arms. Bend, stoop, kneel, crouch and crawl. Taste and smell. Manual dexterity. Drive a vehicle. (Emphasis supplied) The primary duties for all jail detention officers were the care, custody, and control of jail inmates and operation of the facility. These duties might, on occasion, include running or walking briskly to come to the aid of fellow officers who were "down" or to respond to inmate fights. Detention officers were also responsible for the security of the entire 300,000 square feet of jail space and the 10-acre parcel of land surrounding it. A jail detention officer's regular duties also included inspecting inmate housing areas and looking under bunks, some of which were only 16 inches off the floor, for contraband, including drugs and weapons. Detention officers had to go up and down stairs to make these inspections. During Petitioner's employment with Respondent, detention officers on TRD were often placed in the personnel office, lobby of the jail, or in central control. The lobby now only utilizes civilian personnel. (See Finding of Fact 50.) The Sheriff has a law enforcement background and mindset. When he took over the jail, he imposed additional employment standards on jail detention officers above and beyond the minimum standards established by the State of Florida. As part of his initiative to professionalize the jail, and in an effort to obtain national accreditation for the jail from the American Correctional Association, the Sheriff established minimum physical requirements for all detention officers. Over time, ACSO's training staff created a job-related physical review and designed the PAT. The PAT evolved over a period from approximately November 1999 to March 2000. It ultimately consisted of a timed course of nine tasks. The timed PAT began with Task 1: a 455-foot (reduced by July 1, 2003, to 300-foot) sprint, to the first obstacle. The "first obstacle" was the step obstacle (stepping over 17 seven-inch rope steps in sequence), then continuing on 50 feet to the next task. It is clear from her testimony that Petitioner incorrectly saw this first part (Tasks 1 and 2) as the only part of the PAT which required running. However, Task 3 of the PAT was the "Serpentine," which involved snaking around a series of cones without knocking them down. Then, the detention officer would have to "sprint approximately 85-feet to the next obstacle." Task 4 was a low crawl, followed by a sprint of approximately 155 feet to the weapon fire area and the next obstacle. Task 5 was rapid and accurate weapon fire testing, followed by a sprint approximately 40-feet to the next obstacle. Task 6 for detention officers involved climbing a set of stairs, followed by a sprint of approximately 60 feet to the next obstacle. Task 7 was another serpentine, followed by a sprint of approximately 160 feet to the next obstacle. Task 8 was a test involving dragging a 150- pound dummy and a 123-foot sprint to Task 9, which involved handcuffing. It is clear that by "sprint" the PAT intended quick, short runs at high speeds and that the PAT required many sprints. It is not clear whether the PAT intended that a stopwatch be running non-stop through the nine tasks, but it is clear that all or part of the PAT was timed and that a specific overall time had to be met by each detention officer in order to pass the PAT. Petitioner knew when she was hired/transferred in January 1998 that Respondent Employer had, or soon would have, additional and different employment standards than she had experienced for the last 18 years at the jail and that those new standards might constitute a mandatory threshold for her continued employment. As of November 2000, all detention officers, including Petitioner, were advised that they would be required to participate in the PAT and that they were being given an 18- month phase-in period before the test became a mandatory job requirement for detention officers. Petitioner was advised that she would be required to take/pass the PAT by July 1, 2003. Among other purposes, the PAT was designed to mirror some of Petitioner's daily job activities or job description requirements, such as going up and down stairs, running, and searching under bunks. Parts of the PAT addressed the readiness necessity of confronting and controlling inmates. It also included the less-likely emergency activities of crawling and shooting. At least by July 1, 2003, (and possibly earlier), Petitioner's job description was amended to reflect that the PAT was part of the essential functions of her job: IV. QUALIFICATIONS: * * * B. Experience and Training: * * * Must meet or exceed all applicable physical agility standards required by ACSO. As part of the continued departmental upgrading and phasing-in of PAT, detention officers, including Petitioner, also were required to participate in 40 hours of in-service training, which included training to successfully pass the PAT. ACSO provided University of Florida fitness and nutrition interns and an onsite exercise room to assist jail employees in reaching physical fitness levels sufficient to timely pass the PAT. Petitioner did not avail herself of these PAT training opportunities, due, in part, to health reasons. On March 6, 2002, Petitioner provided to Respondent a letter from her general practitioner, Dr. Thompson, stating: [Petitioner] suffers from morbid obesity and has severe osteoarthritis of both knees and also suffers from hypertension. These ongoing medical problems preclude her from being able to participate in the physical agility test that is a requirement of her position as a correctional officer. . . . Petitioner could not physically train for, or perform, the PAT as of March 6, 2002. From that date on, she relied on Dr. Thompson's letter, so that her superiors would not require her to take/train for the PAT. Petitioner submitted no later reports to change Dr. Thompson's March 6, 2002, opinion, but claimed that the Employer had not placed her on TRD as a result of it. In April of 2002, Petitioner's knee was injured in a motor vehicle accident. Petitioner testified that from the April 2002 accident until she was terminated in August 2003, she was unable to stand for long periods of time; run; cook regular meals for her family; clean her house without assistance; or do any gardening or yard work. She also related that knee pain limited or ended marital intimacy. To some degree, at least, these limitations continued after her August 2003 termination. She also claimed to have been unable to attempt the PAT from April 2002 until her termination in August 2003. See infra. Petitioner testified that she could not workout at the jail gym or otherwise prepare for the PAT after her April 2002 automobile accident. Over time, in part due to her inactivity, Petitioner reached a weight in excess of 400 pounds. Petitioner continued to rely on Dr. Thompson's March 6, 2002, pre-accident letter to avoid training for, or taking, the PAT. Dr. Thompson never supplemented this letter. Respondent's published policy concerning the PAT permitted employees who were unable to do PAT for medical reasons to delay taking it, as follows: Sworn employees unable to participate in a semi-annual proficiency because of a medical condition must have their physician complete the Medical/Physician's Recommendation Form, ACSO 94-24 and the Health and Work Status Report, ACSO 96-178 and return them to the Human Resources Bureau. Sworn employees who fail to participate or demonstrate semi-annual proficiency because of a medical condition will be placed on Temporary Restricted Duty (TRD) for a period of up to twelve (12) months to rectify the deficiency. The TRD shall not exceed twelve (12) consecutive months, or a total of eighteen (18) months within a twenty-four month period. At the end of the extension period, the sworn employee will be required to complete and successfully pass any missed test(s). Sworn employees who fail to demonstrate proficiency at the end of the TRD period will be relieved . . . of sworn duty if not done so when the employee is placed on TRD. . . . [sworn employees] suspended from sworn duty shall be reassigned to non-sworn status pending administrative action. Administrative action may range from permanent non-sworn assignment with all employee pay and benefits adjusted accordingly, if a position is available, up to and including termination. (Bracketed material added for clarity.) On or about November 25, 2002, Petitioner submitted a Health and Work Status Report from Dr. Bensen, her chiropractor, which said she was: Unable to run and is to be excused from that portion of the physical agility test until further notice. On November 26, 2002, Respondent Sheriff issued a memo to Petitioner that provided, in pertinent part: RE: TEMPORARY RESTRICTED DUTY the very nature of corrections requires instantaneous response to potentially hazardous or stressful situations. This response often involves extreme physical exertion. You have provided medical information from your physician indicating that you are temporarily unable to fulfill the essential functions of your appointment as a Detention Officer. Therefore, effective immediately, you are hereby placed on Temporary Restricted Duty and directed to report to the Human Resources Bureau for assignment. You must provide the Human Resources Bureau with an updated Health and Work Status Report every 30 days, commencing with the effective date of this assignment. While on Temporary Restricted Duty, the following conditions shall apply: 1. You shall avoid physical confrontations, except when necessary to protect yourself or another person from imminent death or serious injury. * * * 5. You will not participate in any training that would involve activities contrary to the restriction indicated by your physician. * * * An assignment to Temporary Restricted Duty cannot exceed twelve months. If you are unable to return to full, unrestricted duties as a Detention Officer at that time, you will be subject to reclassification to a position within your capabilities or to termination. Petitioner concedes that Instruction 5, of the Sheriff's November 26, 2002, memo, placing her on TRD, amounted to Respondent telling her that he was following her doctor's orders and expected her to follow them, too. From November 2002, through July 2003, Petitioner submitted appropriate Health and Work Status Reports from Dr. Bensen and received approval of TRD from the Employer. The way the foregoing system worked was that at some point between the 19th and 30th of each month, Petitioner would visit Dr. Bensen and he would make out a Health and Work Status Report, certifying that she was "unable to run and is excused from that portion of the Physical Ability Test until further notice." (R-12) A few days later, Petitioner would present the foregoing Report to a superior officer, who would note on a Return to Duty Form, the date of his or her conference with Petitioner concerning Petitioner's restrictions; the date Petitioner's next Health and Work Status Report was due; and the date of Petitioner's next scheduled physician's appointment. This Return to Duty Form authorized Petitioner to be placed in TRD. (R-11) Thereafter, a Human Resources Risk Manager signed- off on the same form to approve the TRD assignment. Although the Health and Work Status Report Forms and Return to Duty Forms in evidence do not cover every month between November 26, 2002, and August 2003, or precisely dove- tail by date, the tangible items in evidence, together with the credible testimony and evidence as a whole, support findings that Petitioner's last counseling by a superior officer occurred on August 1, 2003; that her next physician's appointment was expected to be August 26, 2003; and that Petitioner was ordered to remain on TRD, effective July 30, 2003. (See Findings of Fact 56-58) While on TRD from November 2002 to August 2003, Petitioner was primarily assigned to the jail's lobby. Occasionally she was assigned to the command center. Petitioner was assigned to the lobby, partly due to her good communication skills. At the time, both locations were full duty detention officer postings. Neither location has stairs in it. Trustee inmates are not handcuffed in the lobby. Transferee-inmates may be handcuffed in the lobby. The lobby is mostly a public information outlet and an entrance and exit point for the jail facility. Currently, ACSO utilizes only civilian personnel in those areas, instead of physically restricted detention officers, because all sworn detention officers are expected to be in a state of operational readiness and to be able to respond as full-service officers. On June 10, 2003, the Employer requested an independent medical evaluation of Petitioner. Dr. Newcomer, a medical physician, evaluated Petitioner and provided the Employer with the following information on June 24, 2003: DIAGNOSIS: Morbid obesity, bilateral knee arthritis with more recent knee trauma resulting in chronic pain, hypertension in fair control. TREATMENT PLAN: Functional capacity evaluation is requested and will be set up at Rehab Solutions. When that information is available, further assessment of her specific functional abilities to compare the physical requirements of job description including physical agility test, can be more specifically addressed. Her extreme obesity and advanced degenerative arthritis in the knee will definitely limit her long term ability for weight bearing exercise and physical stress. (Emphasis supplied) On June 27, 2003, Rehab Solutions, Inc., wrote Petitioner in an attempt to schedule, for July 7, 2003, the physician-ordered functional capacity evaluation. On July 1, 2003, the PAT became mandatory for all detention officers, including Petitioner. Petitioner took Rehab Solutions a July 1, 2003, letter (Tr-142; R-10) from Dr. Bensen. As a result, Rehab Solutions elected not to perform the functional capacity evaluation of Petitioner on July 7, 2003. Dr. Bensen's letter read, in pertinent part: [Petitioner] has been seen in this office for treatment of injuries sustained in an MVA [sic. "motor vehicle accident"] which occurred on April 12, 2002. These injuries include cervicobrachial syndrome, cervical sprain-strain, knee sprain-strain, and thoracic sprain-strain . . . she has recently been able to increase both the speed as well as the distance of her walking regimen. Soft tissue injuries typically take up to 18 months to heal and [Petitioner's] rehabilitation has been complicated by her weight. any stressful assessment examination at this time is likely to re-injure that patient's knee and it is recommended that such assessment be postponed until October of this year to allow for more complete resolution of her symptoms. Since the foregoing letter from Dr. Bensen was presented to Rehab Solutions, Inc., it would seem to be suggesting, not that Petitioner could attempt the PAT in October 2003, but that Rehab Solutions, Inc., ought not to perform a functional capacity evaluation of Petitioner for Dr. Newcomer and the Employer until October 2003. It is not clear when the Employer came into possession of this letter of Dr. Bensen. On July 29, 2003, Dr. Bensen filled out a Health and Work Status Report to the effect that he had examined Petitioner on July 29, 2003; that she might return to work on July 30, 2003; and that she was "unable to run and is to be excused from that portion of the physical agility test until dated [sic.] listed below - October 2003"; and that he expected Petitioner to return for her next appointment on August 26, 2003. (R-12) This was the last Health and Work Status Report submitted to the Employer before Petitioner's termination on August 7, 2003. (See Finding of Fact 49.) The last Return to Duty Form before Petitioner's termination shows that Susan Wiley, on behalf of the Employer, discussed Petitioner's restrictions with her on August 1, 2003; continued Petitioner on temporary restricted duty, effective July 30, 2003; and expected Petitioner to supply a new Health and Work Status Report on September 1, 2003, from a next scheduled physician's appointment date of August 1, 2003. (R-1) (See Finding of Fact 49.) From Findings of Fact 56 and 57, it is further found that despite some discrepancy in dates between Dr. Bensen's reports and the Employer's Return to Duty Forms, Petitioner's supervisors knew on August 1, 2003, that Petitioner might be able to attempt the PAT in October 2003. However, Respondent Employer terminated Petitioner on August 7, 2003, by a memorandum of that date, stating: In July of 2000, the Alachua County Sheriff's Office established a Physical Agility Test for Detention Officers at the Department of the Jail. The test was developed to test a Detention Officer's ability to meet essential minimum physical requirements of the job. The test, notification of requirements, and trial period were implemented over a 3 year time period. This test is specifically designed to assess one's ability to perform essential functions of your position which are physical in nature. Your medical information on file with the Human Resources Bureau indicates that you are unable to perform this test either now or in the foreseeable future. Detention Officers must be able to carry out their duties in a manner which safeguards the safety and welfare of the inmate population as well as employees. I have allowed you to function in a restricted capacity with the hope that you would make some progress in your rehabilitation, however, I note that no improvement in your medical condition has been documented. Keeping in mind the safety needs of this agency as well as the requirements of the position, I must accordingly end your assignment as a Detention Officer with the Department of the Jail of the Alachua County Sheriff's Office effective as of 1700 August 7, 2003. I encourage you to contact Human Resources Bureau Chief Sherry Larson at 367-4039 to discuss your interest in other vacant positions for which you may qualify. Please note your circumstances qualify you to take advantage of ACSO's Transition Period which allows you to use up to sixty (60) days of accumulated leave (sick, annual, compensatory, special event) to transition into retirement or other non-ACSO employment. In order to take advantage of this option you must contact Human Resources at 367-4040 immediately upon receipt of this memorandum. (Emphasis supplied.) Petitioner was employed for 3.8 years between her hire/transition to ACSO in January 1998 and her termination in August 2003. Petitioner contended that she never asked for an accommodation of her disability, but clearly, she accepted TRD for as often and as long as it was provided, at least from November 26, 2002 to August 7, 2003. During her entire 22 years of service as a detention officer, Petitioner was never disciplined or evaluated as unsatisfactory for any reason. After August 7, 2003, Petitioner contacted Ms. Larson concerning continued employment with ACSO and was informed that there were two ACSO positions available. Petitioner understood these positions to be "deputy" and "detention assistant." Petitioner understood the "deputy" position to be one for "road deputy," a position which requires passing an even more rigorous PAT than the one Petitioner would have to have passed as a jail detention officer. (See Findings of Fact 24- 27.) Although the detention assistant position was not commensurate with the salary level and duties of a detention officer, Petitioner admitted to being qualified and capable of performing that job description in August 2003. Petitioner told Ms. Larson that Petitioner would get back with her, but because Petitioner did not contact Ms. Larson within two days, Ms. Larson assumed Petitioner would not be applying for either current ACSO job opening or for any future ACSO openings, so she did not continue to contact Petitioner thereafter. Petitioner claims that approximately August 20, 2003, Dr. Thompson provided medical documentation indicating that she could attempt the PAT. However, Petitioner concedes that she never provided this information to Respondent. Dr. Thompson's alleged August 20, 2003, permission slip also was not offered in evidence. (TR-201-202.) Petitioner's testimony is conflicted as to her physical limitations from July 2003 to the date of hearing. She testified that prior to her termination by Respondent, her medical condition did not prohibit her performing any of the "essential functions" of her job as a detention officer, except running. At one point, she testified that after October 2003, (the earliest date of possible PAT performance as predicted by Dr. Bensen), she was able again to perform all her household chores. She also testified that after her termination in August 2003, her medical condition, which at least until October 2003, included no prolonged walking or standing and no running, prevented her from seeking a range of jobs outside her field, such as day care provider, cashier, mail deliverer, cook, grocery bagger, waitress, and nurse's aide. Petitioner testified that she continued to be unable to do her housework, yard work and general life activities at least until the beginning of 2004. Petitioner also testified that she believed she could fulfill her detention officer job description as of the date of hearing. She testified that she could attempt the PAT (without running) as of the date of hearing, but she was not sure she could pass it. She asserted that the PAT is not a bona fide requirement of the job of detention officer. Petitioner testified that from some time post- termination to May 2004, she suffered from depression and anxiety due to loss of her job, but she provided no medical corroboration of this part of her testimony. Nonetheless, at some point, she has been able to apply for a counselor position at Alachua County Work Release; a job at the Alachua County Library; and a job at the Court Services Office. For reasons unknown, she was not hired at any of them. She was not hired by the Bradford County Sheriff's Department in 2003 because it had no vacant positions at that time. She has intentionally not applied for any correctional officer jobs. She has a college degree in business administration, but apparently has not sought employment in that field. Petitioner has lost no health benefits as a result of her termination by Respondent Employer, because she has always had health insurance through her husband's employment. She did lose salary, retirement benefits, dental plan coverage, and supplemental life insurance coverage as a result of her termination. Petitioner has agreed to pay her attorney a reasonable fee in this case.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 7th day of June, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Bill Salmon, Esquire 410 Southeast 4th Avenue, Suite A Gainesville, Florida 32601 Linda G. Bond, Esquire Allen, Norton, and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
